LAW AND PSYCHOLOGY: A MYSTRIOUS SIDE OF LAW1
Abstract
The profession of law and psychology share little in terms of how conceptualise their subject
matter, some would tend to disagree with this statement suggesting that law and psychology
are two separate disciplines, but have much in common. While psychology’s goal is to
understand behaviour and law’s goal to regulate it both fields make assumptions about what
causes people to act the way they do. Thefield of psychology and law first begin to develop
within the law century and is currently experiencing a period of growth and expansion, the
interaction between the field of psychology and law has increased over in legal psychology.
The main focus in this field involves efforts to develop a psychology of law and justice based
on psychological values. While comparing and seeing the interrelationship between two
different branches of study it is important to see how they are contributing in each other’s
fields, further chapters will analyse psychology of lawyers, mind sets of criminals,
psychologists’ need in a court room, psychology of a court room, neverthelessthese two
professions are essentially split by the way they construe human nature, and this often causes
conflicts between the two disciplines.This paper will also throw a light on the immense
contribution of famous personalities who worked on the concept of law and psychology.
Keywords: law, psychology, lawyers, criminal, psychologist
Introduction
Legal psychology is one of a number of disciplines that applies the psychological insight of
human behaviour to matters regarding law. It involves empirical psychological research of
the law, legal institutions and people who come into contact with the law. Legal psychologist
typically take basic social and cognitive principles and apply them to issues in the legal
system such as eyewitness memory, jury decision-making, investigation, interview
1
ANUNITI PANDEY
SHRISHTI SINGH
AMITY UNIVERSITY RAJASTHAN
techniques & mental illness of victim. Psychology and law explores both the scientific study
of the effect of the law on people and the effect people have on the law.
The field of psychology and law uses the tools and the uses the research methods and
findings of social psychology and cognitive psychology, developmental psychology and
community psychology examine legal assumption to test whether they really work or not and
think about ways to make them better.
Law tends towards logical interpretation
Psychologyon the other handtends towards how people behave in real world situations
Psychology and law is an extremely broad topic that includes many basic and applied
research areas like applied topics in mental health, memory and jury behaviour; and
evaluation of laws and legal processes. In line with general psychological approaches across
field’s psychologist who study psychology and the law emphasize the behaviour, cognition,
emotions and experience of individuals involved in the legal system.
There are three primary ways in which psychology and law can relate with each other.
1. Psychology and law: - the use of psychology to examine the operation of the legal system
2. Psychology in the law: - the use of psychology in the legal system as the system operates
3. Psychology of the law:-the use of psychology to examine the law itself
Legal psychology2
Legal psychology is one of a number of disciplines that applies the psychological insights of
human behaviour to matters regarding the law.
Developmental psychology, community psychology, social psychology and cognitive
psychology are all subspecialties within the realm of psychology and the law. This specialty
of psychology is not only concerned with criminal behaviour. Legal psychology is also
committed to protecting victims of crime, devising more appropriate treatments for
offenders3, and helping judicial bodies make more informed decisions. At its core, legal
2
http://www.psychologyschoolguide.net/psychology-careers/legal-psychologist/
3
the name that is used for a person who is guilty of an offense according to law.
psychology seeks to make legal processes run smoothly while also making them less
impactful on those involved.
Criminal psychology4
Criminal psychology, also referred to as criminological psychology, is the study of the wills,
thoughts, intentions, and reactions of criminals and all that partakes in the criminal behaviour.
It is related to the field of criminal anthropology5. The study goes deeply into what makes
someone commit a crime, but also the reactions after the crime, on the run or in court.
Criminal psychologists are often called up as witnesses in court cases to help the jury
understand the mind of the criminal. Some types of psychiatry6 also deal with aspects of
criminal behaviour.
Forensic psychology7
Forensic psychology is the intersection between psychology and the justice system. It
involves understanding fundamental legal principles, particularly with regard to expert
witness testimony8 and the specific content area of concern (e.g., competence to stand trial,
child custody and visitation, or workplace discrimination), as well as relevant jurisdictional
considerations (e.g., in the United States, the definition of insanity in criminal trials differs
from state to state) in order to be able to interact appropriately with judges, attorneys, and
other legal professionals. An important aspect of forensic psychology is the ability to testify
in court as an expert witness, reformulating psychological findings into the legal language of
the courtroom, providing information to legal personnel in a way that can be understood.
Further, in order to be a credible witness, the forensic psychologist must understand the
philosophy, rules, and standards of the judicial system. Primarily, they must understand the
adversarial system. There are also rules about hearsay evidence and most importantly, the
exclusionary rule. Lack of a firm grasp of these procedures will result in the forensic
4
https://en.wikipedia.org/wiki/Criminal_psychology
5
A combination of the study of the human species and the study of criminals.
6
The branch of medicine focused on the diagnosis, treatment and prevention of mental, emotional and
behavioral disorders.
7
https://en.wikipedia.org/wiki/Forensic_psychology
8
Testimony is a form of evidence that is obtained from a witness who makes a solemn statement or declaration
of fact.
psychologist losing credibility in the courtroom. A forensic psychologist can be trained in
clinical, social, organizational, or any other branch of psychology.
Difference between Forensic, Legal and Criminal Psychology.
1. Criminal psychology: studies everything that is related to criminal behaviour – this
includes the thought processes, intentions, motivations and reactions of criminals. Why do
criminals do what they do? – This very question is answered by criminal psychologists.
Criminal psychologists try to understand and examine why certain people commit crimes.
Their findings and analyses are quite useful and often assist in cases and legal trials.
2. Forensic psychology: forensic psychology uses the principles and teachings of psychology
and applies them to the criminal and justice system. The intent is to develop a more thorough
and well-rounded criminal justice system. Forensic psychologists use their findings to
improve the delivery of the legal system to ensure that the results of the case or proceedings
are undeniable.9
3. Legal psychology: legal psychology is study of issues that occur within the legal system
(i.e. examination of jury selections, eye-witness testimonies, etc.). Legal psychologists tend
to find eyewitness testimonies unreliable and invalid. They also tend to believe that
preferences and biases (i.e. personalities of the jurors, knowledge of legal terminologies, and
the introduction of evidence) significantly influence jury decisions and the outcomes.
Confusion between Legal and Forensic psychology.10
Legal psychology deals with cognitive and social principles and their usage in the legal
system. It is based on empirical and psychological research of law along with legal
institutions. It is different from forensic psychology which is based on the clinical orientation
on experimentation.
The main difference between legal psychology and forensic psychology is that legal
psychology is the study of the thought processes, and behaviours of jurors, the court system,
legal processes, etc., while forensic psychology mostly focuses on criminal cases (i.e.
9
http://www.psychologyschoolguide.net/guides/differences-between-legal-psychology-and-forensic-
psychology/
10
http://www.psychologyschoolguide.net/guides/difference-between-criminal-psychology-and-forensic-
psychology/
suspects, defendants, and convicted criminal/felons), and the psychological issues involved in
them. For instance, a forensic psychologist helps determine whether a defendant was sane
when he or she committed a crime. A forensic psychologist also helps the judge and jurors
determine if the suspect/criminal is more likely to commit the crime again in the future. In
many cases, a forensic psychologist will help determine if a felon will be released from jail or
prison, or if probation or parole will be denied. Forensic psychologists typically work directly
with suspects and defendants/criminals in the penal system.
Legal psychologists typically work with lawyers and police officers. They also conduct
research studies to show patterns within the legal process and court system. This psychologist
examines legal, court, and jury patterns, in an effort to improve the system – they are not
concerned with criminals/defendants.
The main functions of legal psychologists are to examine how jurors11 are chosen, how juries
make decisions, and the credibility of eyewitness testimonies. These psychologists also
interview potential jurors to get a better understanding of their mental states, and thought
processes. These mental health professionals typically work at courthouses, law offices,
police precincts, private practices, and colleges/universities. Legal psychologists tend to find
eyewitness testimonies unreliable and invalid.
Psychology of Lawyers
Lawyers have a wealth of experience about how people behave — and a lot of information
about how to be a good lawyer is passed down from attorney to attorney12. But as
psychological research shows, people tend to overestimate their ability to learn from
experience. So, it is really important that lawyers recognize the limits of these ways of honing
their craft. Psychologists know that emotion permeates everything we do. This is certainly
true for the types of situations that lawyers tend to encounter — disputes that are clearly
emotional, such as divorce, personal injury, breach of contract, discrimination or criminal
charges, but also such matters as the incorporation of a business, an adoption or estate
planning. Lawyers need to know how emotions can complicate decisions that they and their
clients need to make, even when the decisions may not have an obviously emotional aspect 13.
11
A member of a jury.
12
A person, typically a lawyer, appointed to act for another in business or legal matters.
13
http://www.apa.org/monitor/2012/11/lawyers.aspx
At the same time, psychological research can also help lawyers understand the ways in which
they can use emotions — their own emotions or their clients' — as a source of information or
motivation, as a way to communicate with others, or as a window into different ways of
approaching an issue.
All of this is complicated by the fact that lawyers — like most of us — have a hard time
accurately gauging other people's emotions. This has many consequences, including
miscommunication, but is also one reason why it can be very difficult to tell whether
someone is lying.
Good lawyers are also effective at developing relationships with clients, staff, colleagues and
others. And they are skilled at perspective taking, engaged and passionate about what they
do, good at managing stress and able to act with a high degree of integrity. We are struck by
how relevant psychology is to every single one of these aspects.
The legal psychologist advice client and attorney of the insight that psychology could
contribute to the case. They also advice the court that on a particulars of psychological
research, conclusion of examinations.
Psychology of a Courtroom
Psychology of a Courtroom refers how a lawyer and the witnesses tell their stories in the
courtroom. Courtroom style techniques involve body movement, physical appearance,
demeanour toward the jury, and use of language. Courtroom style is an extra-legal basis for
decision-making because lawyer or witness demeanour usually has no connection to the legal
or factual issues which should be the basis for the jury's verdict. Language and voice are
important elements of courtroom style.Lawyers induce jurors to make judgments about the
credibility of a speaker by manipulation of the "powerfulness" of the speaker's language. The
relevance of legal psychology can be seen in legal proceedings in different manners14:
Academics and research– Legal psychologists basically conduct empirical research on new
legal topics, which are yet to be popularised. They also work as mentors and guide the
upcoming legal representatives.
14
https://blog.ipleaders.in/psychology-and-law/#ampshare=https://blog.ipleaders.in/psychology-and-law/
Advisory role– Many a time it is seen that legal psychologists plays an advisory role in court
systems. They advise the judges and legal decision makers on some psychological issues
pertaining to the concerned case.
Trial consulting– Sometimes, legal psychologists also work for trial consulting. In some
cases, a psychologist who works as an academician is called up as a trial consultant when
their expertise is helpful in any particular case. Trial consultants play different roles such as
picking up the jurors, performing mock trials, etc.
Policy making and legislative guidance– A legal psychologist’s work is based on empirical
research and many a time there is a need to establish some policies based on empirical
research. Hence, in those times of crises they help the state and national lawmakers.
Amicus briefs– Amicus briefs primarily means to provide opinions with a scientific backup
and statistics. But the assistance which a legal professional provides in the form of amicus
briefs is questionable.
Expert witnesses– Legal psychologists are helpful in testifying the witnesses. They also test
the memory of eye witnesses.
Mindset of criminals
Whenever a crime happens, the community is left wondering how someone could do such a
thing. It’s hard to comprehend the urge to harm someone else or steal something, especially
when it is about the consequences of the victim15, their family, and ourselves. But many
criminal brains work differently than the average human’s. Of course, there are people who
turn to crime after a tough childhood, but some criminals, especially psychopaths 16and those
with personality disorders, have minds that are weird for crime.
Criminal minds can be classified into 2 categories
1. Need
Almost every small scale crime (stealing eatables, money...) happens because of need.They
think that it’s the easier way to fulfil needs
2.Revenge
15
A person harmed, injured, or killed as a result of a crime, accident, or other event or action.
16
A person suffering from chronic mental disorder with abnormal or violent social behaviour.
Murders are mostly happen because of revenge. They just wanted to realise them the same
pain, they have gone through.
Criminal psychologist analyses a criminal and testifies in court about a defendant’s state of
mind, mental health or lack thereof.Criminalpsychologists talk to potential suspects or proven
criminals in order to investigate their mental state, and many testify at trials as to the health of
patients. With background in law as well psychology, these specialized psychologists are
experts in mental states and behaviour of criminals.
Conflicts between the two disciplines
A legal system is necessary for the proper functioning of a society since it tries to solve
numerous problems existing in the society in today’s times. Though some legal authorities do
not consider psychology as a discipline relevant to law, it is relevant as law embodies the
theories of behaviour. The legal rules, procedures and doctrines reflect the basic assumptions
of human nature.17
Laws are created and implemented by people. For the most part, laws can be seen as a
reflection of the values of the majority in a society. Laws are created, changed, or thrown
away because as time passes, the values of a society also change. What is acceptable today
may be unacceptable in the future; as values change, so do the laws governing the people.18
• Psychology can help the present decision makers in making decisions by providing more
accurate images and pictures of human perceptions and preferences.
• It helps to check the veracity of witnesses, as eyewitnesses are often known to be influenced
by or afraid of the accused.
• It can also help in reducing false confessions by adopting peace models such as those that
are highly used.
• Psychological studies include the examination of different areas which have legal and social
significance.
• It is based on the empirical and psychological research of legal institutions as well as law
and focuses on legal psychology rather than clinically oriented forensic psychology.
17
http://www.psychology-criminalbehavior-law.com/2015/01/conflict-psychology-law/
18
https://blog.ipleaders.in/psychology-and-law/#ampshare=https://blog.ipleaders.in/psychology-and-law/
• Pronouncing judgements considering the psychological aspects of the accused’s mind
ensures justice in its real meaning.
A psychologist will most likely say objectively measurable data that has reliability and
replicability is the only way to show something to be true. For someone in law enforcement,
personal life experience and their own subjective observation are moreoften used to
determine what is true and what is false. Investigating a case involves deductive and
inductive reasoning, and so more weight is given to “gut feelings”. It is not unheard of for
police to hire psychics to aid them in solving a case.
Famous personalities in the field of Psychology and Law19
1. James McKeen Cattell (1860-1944) - Studied the psychology of testimony. He gave
students at Columbia University a series of questions, and had them respond and rate their
level of confidence in their answers. He realized there was a startling amount of inaccuracy,
and lack of confidence in responses.
2. Alfred Binet (1857-1911) - Replicated Cattell's experiment. Part of the Binet-Simon scale.
This scale was used to identify students in need of alternative education. The score the child
got would reveal the child's mental age. He stressed diversity of intelligence and the need to
therefore study it using qualitative, not quantitative measures. The Simon-Binet scale was
soon Americanized, with a new objective that would ultimately result in "...the elimination of
an enormous amount of crime..."
3. William Stern (1871-1938) - Researched witness recall. Developed study in which he
asked his students to summarize a fight they had seen. He realized errors were common
among the students about the event, though they had all seen the same thing. He later
concluded that emotions help a decrease in accuracy during witness recall.
4. Hugo Munsterberg (1863-1916) - Believed psychology could be used in everyday life.
Published a book called "On the Witness Stand" that was a collection of articles that had
already been published by him. He used the articles to help discuss the psychological factors
that can change a trial’s outcome. He also helped point the way to rational and scientific ways
to for judging the facts given by witnesses with the application of experimental psychology to
law.
19
http://everythingforensicpsychology.weebly.com/famous-forensic-psychologists.html
5. David Canter (1944-Present) - Began his career as an architectural psychologist, studying
the interactions between people and buildings. Pioneered investigative psychology in Britain,
and helped police with the Railway Rapist case. Since then, he has published a book,
available on Amazon, called "Forensic Psychology: A Very Short Introduction". , He
currently teaches at the University of Huddersfield.
6. Aldert Vrij (1960-Present) - Primarily studies verbal and nonverbal cues for deception, and
lie detection. He advises the police about suspects, and acts as an Expert Witness in court. He
has currently published more than 300 articles or chapters about the cues and deception. He is
the editor of "Legal and Criminological Psychology" and currently teaches in the University
of Portsmouth's Department of Psychology.
7. Elizabeth Loftus (1944-Present) - Fundamentally a cognitive psychologist. Has conducted
extensive research on the malleability of human memory. She has done ground breaking
work on the misinformation effect and eyewitness memory, along with the creation of false
memories. She has been involved in applying he research to legal settings, and has been
given numerous awards. Currently teaches at the University of Washington.
Psychology in the eyes of law20
State v. Driver 192121
The first published case in which a psychologist was an expert witness was the case of State
v. Driver in 1921. It is important to note however that this was not the first time a
psychologist had been an expert witness. It is impossible to say when the first case was
because of a lack of available records. Soon though in the 1940’s psychologists being used
as expert witnesses was increasing. This is not to say that they were readily accepted though,
there was still a large amount of doubt in the legal community to the application of
psychology in the courtroom.
Frye v. the United States 192322
20
Law Library- American Law and Legal Information. (n.d.). Retrieved November 17, 2010, from Law Library-
American Law and Legal Information: http://law.jrank.org/
21
State v. Driver 38 N.J. 255 (1962) is a New Jersey Supreme Court case.
22
Frye v. the United States 293 F. 1013 (D.C. Cir. 1923)
Frye versus the United States set the standard for the acceptance of expert testimony in
federal courts. The case was heard in 1923 and the outcome was what is known today as the
Frye Standard.
“Just when a scientific principle or discovery crosses the line between the experimental and
demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential
force of the principle must be recognized, and while courts will go a long way in admitting
expert testimony deduced from a well-recognized scientific principle or discovery, the thing
from which the deduction is made must be sufficiently established to have gained general
acceptance in the particular field in which it belongs.”- Van Orsdel, Associate Justice
This case was a huge step in the effort to incorporate psychology and law.
People v.Hawthrone 194023
In the case of the People v. Hawthrone, tried in Michigan. The case was about a man who
had killed his wife, and was pleading not guilty by reason of insanity. The trail court refused
to allow a psychologist with a PhD to be an expert witness in the case. This issue ended up in
the Supreme Court of Michigan where it was determined that the trail court should have
accepted the psychologist as an expert witness. They ultimately ruled that the criteria for
being an expert witness should not be based on whether or not the person had a medical
degree. The bases for qualifying an expert witness should be their depth of knowledge in a
particular area. This ruling created some controversy however in that many people believe
that in order to testify about something like insanity, which they considered to be a disease, a
person needed a medical degree.
Hiddenv. Mutual Life Insurance Company Co. 195424
This case is very similar to the People v.Hawthrone, the main difference being that this is a
civil case. The plaintiff was suing his insurance company for benefits. He claimed that they
should be giving him disability benefits because he had a disabling nervous condition which
prevented him from having a steady source of income because he could not work. A clinical
psychologist performed projective testing on the man, and testified in court about his
condition. In testifying the psychologist stated that the man qualified to be given the
disability benefits. At this point the defense objected, and the judge told the jury to disregard
23
People v. Hawthrone 293 Mich. 15 (Mich. 1940) Supreme Court of Michigan.
24
Hidden v. Mutual Life Insurance Company Co. 217 F.2d 818 (4th Cir. 1954)
the entire testimony of the psychologist on the basis that he was stating his opinion. Later in a
court of appeals it was ruled that the clinical psychologist’s testimony should have been
admissible in the trial and that the psychologist was an expert witness.
Jenkins v. United States 196225
The court of appeals in D.C. ruled in support to psychologists being used as expert witnesses
when mental illnesses are concerned. The court was much divided on this ruling. None the
less, their ruling became the dominate one concerning psychologists as expert witnesses in
the matter of mental illness. Following this example many other courts, federal and local,
began to accept the use of psychologists more willingly.
Critical analysis
• The most important and frequent criticism is that psychology is a science and science
cannot grant certainty, whereas law requires certainty.
• It covers or is helpful only in a few areas of law like criminal law, family law, etc.
• The other criticism is regarding the work of a psychologist as amicus brief, where
sometimes due to lack of training, amicus brief is just cited to support the personal beliefs of
the psychologist
Conclusion
Law and psychology are two broad and separate fields, but yet they are united by their in
human behaviour. Psychology seeks to understand and explain human behaviour while law
seek to regulate human behaviour. It has already seen through various instances, no legal
system is perfect. So, we can say that, psychology is a step towards making legal system
perfect. Any study or research that would relate psychological principles with legal
applications is considered as legal psychology. Where on one hand, forensic psychology
provides knowledge about the mental state & wellbeing of accused and witness on the other
hand legal psychologists is present in the form of researchers and academicians which would
help in developing new perspective to legal issues and by providing different solutions to it.
25
Jenkins v. United States 1962 307 F.2d 637
In India, approximately 2.81 crores cases are still pending which clearly shows the current
situation of India. Every field has its pros and cons but bringing psychology in the field of
legal system would definitely help in many ways. Hence, the role which psychology plays in
the legal system and helps in maintaining justice, equity and good conscience.
