Forensic Psychology 101

The Forensic Part

Linda Gomberg, JD, PhD
October 24, 2021
 What Is It?
• Psychology: Study of human behavior
– Probability/falsification
– Perception: Subjective point of view
– Context: Situational
– Divided into numerous subspecialties
– Key word: Competence
– Forensic: From “forum;” courts/law
– Adjective
– Perception: Subjectively attributed by the law
– Context: Societal
– Key word: Intent*
• Forensic Psychology: Psychology practiced and/or studied
for any legal purpose
 The Beginning
(of a Legal Education)
In 1989, Michael Hoeflich, in attempting to explain why legal
education needed to be expanded beyond law schools
wrote:
We must teach everyone, whatever their field of
study, about basic constitutional law and regulation,
for only then can they fully and knowingly participate
in our constitutional government structures….It
needs to be taught to all of them, from sixth graders
to law students… as a complex part of human social
organization with a history and a broad social and
cultural purpose. (pp. 796-797)
Hoeflich, M.H. (1989). Law, culture, and the university: An inaugural
discourse. Syracuse Law Review, 20, 789-797
 United States Constitution
• Foundation for all United States laws
• Establishes the (federal) government
– 7 Articles (1789)
• (Art. IV-VII: Procedural)
• Article I: Legislative Branch (makes the laws)
• Article II: Executive Branch (enforces the laws)
• Article III: Judicial Branch (interprets the laws)
– The one we’ll keep coming back to
– (a personal favorite)
– 27 Amendments
• Bill of Rights (1-10) (1791)
• + 17 through 1992
 Article I: Legislative Branch
• Two houses of Congress make the laws
– House of Representatives: Elected according to
state population (435 vote, CA has most @53)
– Senate: Two per state (100 total)
• All laws made by Congress are presumed to
be Constitutional
– Unless challenged in court and
– Proven unconstitutional
 Article II: Executive Branch
The Executive Branch enforces the laws
Members of the Executive Branch
President/Vice President
Cabinet, i.e.
Secretary of State
Attorney General
Agencies
Formed under Cabinet Departments
Independent
Advisors
 Article III: Judicial Branch
One Supreme Court
“Court of last resort”
Jurisdiction is limited
9 justices currently including 1 Chief Justice
“Inferior” Courts established by Congress
94 Judicial districts (at least one in each state)
13 Circuit Courts of Appeal
California is in the 9th Circuit
11 Circuits for states and territories
12 & 13 are for DC and special federal appeals respectively
 But wait! There’s more!
The 10th Amendment
Grants certain rights to the states not exclusive to feds

All states assumed right to establish

Legislative Branch
Executive Branch
Judicial Branch (courts)
Not always 3 levels of courts
Names vary from state to state
Act autonomously
 It Gets Complicated
(so let’s explain)
Two court systems
Federal: limited jurisdiction
State: general jurisdiction
Two types of laws
Substantive (What?)
Procedural (How? Where?)
Two ways to make law
Legislative (statutes, codes)
Common law (judge made, case law)
At least two major types of lawsuits
Civil: Wrongs against people or property (Smith v. Jones)
Criminal: Wrongs against society (State v. Smith)
Family, Probate, Juvenile (In Re Smith)
 Two Court Systems

Federal Courts: Limited jurisdiction

Questions of federal law (28 U.S.C. 1331)
All plaintiffs diverse from all defendants (28 U.S.C. 1332)
Civil suits
Jurisdictional amount in controversy ($75,000)

State Courts: General jurisdiction

State laws
Most civil, criminal, juvenile, family, etc.
 Two Types of Laws
Substantive (What?)
Civil: Tort, breach of contract, etc.
Criminal: Felony, misdemeanor
Infractions
Family
Procedural (How? Where?)
Jurisdiction (power of the court)
Personal
Subject matter
Jury v. Judge (law v. equity?)
Venue (location within jurisdiction)
 Two Ways to Make Law
Legislative/Statutory
Federal (Examples contained in U.S. Codes)
Civil Rights Act of 1964
Electronic Communications Privacy Act of 1986
State (Examples in CA Codes)
Welfare & Institutions Code §5150 (involuntary
psychiatric hold)
Penal Code § 187 (defines murder)
Common Law/Case Law
Federal (U.S. Supreme Court establishes precedent)
State (some autonomy in decision making)
 Putting “It”Together
(Again & In No Particular Order)
• Terminology
• History
• Examples
• Cases

• AND A TRUISM TO BE EXPLAINED:

(SPOILER ALERT) LAW FOLLOWS PSYCHOLOGY
STATUTORY LAW FOLLOWS COMMON LAW
 Terms: Competence/Intent
• Competence: APA defines “the ability to exert control over one’s
life,” to cope with specific problems effectively, and to make
changes to one’s behavior and one’s environment .
– To dispose of estate (will)
– To contract
– To stand trial
– To act as one’s own attorney
– To be sentenced to death
– To be executed

• Intent: The law defines “a determination to perform a particular act

or to act in a particular manner for a specific reason; an aim or
design; a resolution to use a certain means to reach an end.”
– Cognitive
– Mind set to commit specific act
– Mind set to commit some act
COMPETENCE TO FORM INTENT
 How Intent in the Law Works
(and Why Psychology Cares)
• Civil
– Usually Plaintiff and Defendant
• Torts
• Contracts
– Perception of Plaintiff: Allen v. Hanaford (1926)
– Could be Petitioner (Wills, Juvenile, Dissolution of Marriage)
• Criminal
– Prosecution and Defendant
– Intent of Defendant
• Specific intent
• General intent
– Mens rea (Guilty mind)
 Psychology Cares
• Competence/Capacity to form intent
– Mental status
• Interview
• Testing
– Evidence
• History
• Testimony
• Competence
– Context
– Act
 A Small Digression & More
Terminology
• Only two major legal traditions
– Civil law: Statutes first
– Common law: Cases first
• U.S. follows common law tradition
– System adapted from England
– Queen v. Daniel McNaughten (1843)
• Statutory law follows common law
– Except in civil law countries/Louisiana
– Tarasoff v. UC Regents (1976)
• Law follows psychology
 To Explain the Digression
(the cases & the reasons)
Case # 1: Queen v. Mc Naughten (1843)
(First case of law & psychology working together)
Facts: McNaughten went to kill England’s PM.
PM was “persecuting” Mc Naughten (he thought)
Killed PM’s secretary by mistake (irrelevant)
Tried for murder: Specific intent
Rule: Insanity = absolute defense to crime (no intent)
Issue: What is legal insanity?
Law defines insanity: Not know difference between right & wrong.
Psychology/psychiatry explains application
Facts/evidence based science
Witnesses, defendant, medical expert testimony
(*But note: Psychologists couldn’t testify until Jenkins v. US, 1962)
Holding: Not guilty by reason of insanity (NGRI)
 Not Guilty by Reason of Insanity
(NGRI)
• 46 States & DC
– Not Idaho, Kansas, Montana, Utah
– Majority use McNaughten Rule

• 4 different legal definitions of insanity

– McNaughten: Does not know difference between right
and wrong or nature of the act
– Irresistible Impulse: Can’t control due to mental illness
– Model Penal Code: Failure to understand nature of act
due to mental defect
– Durham Rule: Mental defect caused act: NH
 More Digression
(Cases & Reasons cont.)
Case #2 Tarasoff v. UC Regents (1976)
(Common Law example)
Facts: Prosenjit Poddar & Tatiana Tarasoff were students at UC Berkeley, casually
dating (maybe) when she broke it off. He saw therapist at counseling center
and said he was going to kill her. Therapist told supervisor, supervisor told
campus police, police determined Poddar was rational.

Rule: Mental health professionals have a fiduciary duty of confidentiality and duty to
protect clients.

Issue : Are there circumstances wherein the duty to protect/warn should be

extended to 3rd persons?
Holding: When the 3rd party is reasonably identifiable, the therapist has a duty to warn/
protect.

1985: Civil Code §43.92 “ (CA “Tarasoff Law” ) “…serious threat of physical violence against
a reasonably identifiable victim or victims…” (Amended through 2013). Duty to predict
and/or protect-elminated “warn.’

Vast majority of states have “Tarasoff Laws:” Duty to warn and/or to protect 3rd persons
 Back to the Beginning
Roots
• Legal
– McNaughten
– ALI/Durham/Irresistible Impulse
– Statutes
• Diminished capacity (repealed)
• CA NGRI: Nature and right/wrong (Penal Code §25b)
• Psychology
– James McKeen Cattell: Experimental Psychologist
• Recognized as first to combine law and psychology
• 56 junior college students at Columbia: Memory Tests (1895)
• “Usefulness of the accuracy of measurements of observation and memory”
– Eye witnesses
– Expert witnesses

– Hugo Munsterberg:
• “Father of Forensic Psychology”
• On the Witness Stand: Essays on Psychology & Crime (1908)

OR
And How “It” Grew
 Let Us Count the Ways
(Using an Example)
Privacy is a legal and psychological construct.
And as an example of law following psychology
A brief timeline:
1890: 2 Harvard law students wrote The Right to Privacy
Harvard Law Review
Samuel Warren & Louis Brandeis
1950: Abraham Maslow published his Hierarchy of Needs
Begins with basic food and shelter at bottom
Ends with self actualization (the ideal)
Need for privacy on the way to self-actualization
1960: William Prosser (King of Torts) established invasion of privacy torts
Intrusion upon seclusion
Public disclosure of private facts
False light publicity
Appropriation of name or likeness
1965: Griswold v. Connecticut
1973: Roe v. Wade
 Griswold v. Connecticut (1965)
United States Supreme Court
(Constitutional Foundation)
Facts: Griswold & Buxton provided birth control devices and advice to married couples in the
course of their professional dealings (Planned Parenthood). CT Statutes: Persons who do
so are as guilty as those who utilize the birth control; fined $100.00

Constitutional Argument: Statutes banning use of contraception and assistance or

dissemination of contraception violate Due Process Clause of 14th Amendment which
prohibits states from enacting laws that do not give citizens the rights of Due Process
*Note: The US Constitution does not mention “privacy.”

Issue: Does law that intrudes into bedroom of married couples & doctor/patient relationship
(traditionally a private area) violate the Due Process Clause of the 14th Amendment?

Holding/Rule: The Connecticut law, “…forbidding…use of contraceptives rather than

regulating their manufacture or sale, seeks to achieve its goals by…having a maximum
destructive impact upon a relationship lying within the ‘zone of privacy,’ created by several
fundamental constitutional guarantees” (Majority Opinion, para. 15).
Statutes are overbroad, invade privacy of marriage, and violate several Amendments
(Bill of Rights) as well as the 14th. States cannot enact laws that do not allow for
Due process and Equal Protection.

Judgment: Reversed. Connecticut law is unconstitutional

 And Growing….
Progeny of Griswold v. Connecticut (1965):
“Expectation of Privacy”
1972: Eisenstadt v. Baird = Privacy of
consenting heterosexual adults
1973: Roe v. Wade= Privacy of woman’s body
BUT
1986: Bowers v. Hardwick =No privacy for
consenting homosexual adults*
UNTIL
2003: Lawrence v. Texas = Privacy of
consenting adults*
*Justice Sandra Day O’Connor voted with the
majority in both Bowers and Lawrence cases.
 What Was Psychology Doing?
(Writing Amicus Curiae Briefs)
And
Diagnostic & Statistical Manual of Mental Disorders (DSM)
• 1952 DSM
– American Psychiatric Association first issuance
– Homosexuality is a mental disorder
• 1973 DSM II
– 1968 original printing homosexuality was a mental disorder
– 6th printing homosexuality only mental disorder if stressful
– Sexual orientation disturbance
• 1980 DSM III
– Ego-dystonic homosexuality
– Many new diagnostic criteria
– Consistency with International Statistical Classification of Diseases and Related Health Problems (
ICD)
• 1986 DSM III R
– Sexual disorder not otherwise specified
– Observer inference
• 1994 DSM IV
– APA (American Psychological Association) opposed any reference
– Discriminatory
• 2000 DSM IV-TR
• 2013 DSM 5
• THE LAW FOLLOWS PSYCHOLOGY!
 And Continues to Grow
The Branches
• Ethics
– Ethical Principles for Psychologists & Code of Conduct
– Specialty Guidelines for Forensic Psychologists (APA Division 41)
• Courts
– State/Federal
– Juvenile
– Civil
– Criminal
– Family/Probate
• Careers
– Evaluator
• Competence
• Custody
• Sex Offenders (Wait until next week!)
• Danger (WIC §5150 et seq. in CA)
– Clinician
– Prison/jail
– Jury/Witnesses
– Research/Teaching
– Expert
 Educating a Forensic Psychologist
• Formal Education
– Regulated in CA by Board of Psychology (B &PC)
– Must have doctoral level degree: PsyD or PhD
• Program/Department
• Certificate/Specialization
– 3000 hours clinical experience
– Minimum 3 years academic subjects
• Training
– Post doctoral hours (included in 3000)
– On the job
What Does a Forensic Psychologist Do?
• For or with Courts/Government Agencies
– Employed as Forensic Psychologist
– County Panels /Appointments
– DMH
• Prisons/Jails/Juveniles
– Prison Psychologist
– Program Advisor
• Private Practice
– Competency
– Custody
– Specialty Evaluations
– Jury/Witness/Trial consulting
• Law Enforcement
– “Profiler”
– Local/State Police
• Teaching/Research
– DV
– Deception Detection
– Juries/Witness Prep
– Violence in ALL Forms
• Expert Witness*
 The Ultimate Goal of Many:
Expert Witness

• Admissibility
– Frye v. United States (1923)
– Federal Rules of Evidence (FRE) (1975)
– Daubert v. Merrell Dow Pharmaceuticals (1993)
– Feds and States
• Weight
– Juries
– Judges
• Some expert dependent cases
– Jodie Arias (Arizona)
– Andrea Yates (Texas)
– Dan White (California)
Questions?