A History and Overview of Forensic Psychology

Posted by permission of Dr. Thomas O’Connor. Copyright by T. O’Connor.

“The most effective way to organize human energy is thru rivalry, specialization, and social control.” Charles Cooley

Forensic psychology is a well-established, yet oftenmisunderstood, practice area of psychology and law. Historically, the field predatesthe sociological jurisprudence movement of 1930-1950, and goes back at least to1908 when Hugo Munsterberg (the founder of applied psychology) published the book Onthe Witness Stand, now online and mostly about eyewitness testimony and juries, but arguably the first book on forensic psychology. Others cite historical benchmarks in Germany with the psychiatrist Albert von Schrenck-Notzing offering testimony in court about pretrial publicity as far back as 1896 or William Stern’s publication (also in Germany) of the first journal or periodical dealing with forensic psychology, called Betrage zur Psychologie der Aussage.

In the United States, the first psychological experiment on the psychology of testimony was conducted byJ. McKeen Cattell of Columbia University. The history of the insanity defense goes back to England, to the case of DanielM’Naghten in 1843, who shot and killed the secretary of the prime minister, and the M’Naghten test for insanity was used in many countries, including the U.S., up until 1962. In American criminology, one can trace the origins of a clinical orpsychological criminology to the psychiatrist William Healy, who in 1909,created the Juvenile Psychopathic Institute to assist the newly created juvenilecourt in Illinois, and his classic work (available online) is called Pathological Lying, Accusation, and Swindling. Numerous other people figured prominently in the developmentof forensic psychology, and it would be a mistake to overlook the mental testers of the 1912-1917 period, the polygraph pioneers of the 1920s, personality theorists such as Hans Eysenck (1916-1997), and a variety of other prominent people and organizations who contributed toprison psychology and police psychology, most notably Hans Toch, founder of theSUNY-Albany school of criminal justice in the late 1960s, and the John Jay college of criminal justice which has broadened doctoral education in this field, with forensic psychology defined broadly as follows:

Definitions of the Field of Forensic Psychology

There is a narrow definition and a broad definition. The narrow definition comes from the Executive Council of the American Psychology-Law Society (AP-LS), Division 41 of the American Psychological Association (APA), in its 2000 petition to the APA for the recognition of forensic psychology as a subspecialty. In that petition, forensic psychology is defined as “the professional practice by psychologists within the areas of clinical psychology, counseling psychology, neuropsychology, and school psychology, when they are engaged regularly as experts and represent themselves as such, in an activity primarily intended to provide professional psychological expertise to the judicial system.” The broad definition, used by schools such as John Jay College, is that forensic psychology is “the development and application of psychological principles to the problems and administration of legal, judicial, correctional, and law enforcement systems; clearly rooted in the discipline of psychology and its subfields, but also interdisciplinary in nature, drawing on diverse disciplines such as the law, sociology, political science, anthropology, philosophy, medicine, and linguistics.” [from John Jay College website, 2005]

Bartol & Bartol (2004:8) define forensic psychology as “the research endeavor that examines aspects of human behavior directly related to the legal process and the professional practice of psychology within, or in consultation with, a legal system that embraces both civil and criminal law.” These author go on to say that the practice of forensic psychology includes: “investigations, studies, evaluations, advice to attorneys, advisory opinions, and depositions or testimony which assist in the resolution of disputes relating to life or property in cases before the courts or other lawful tribunal, and encompasses situations before they reach the court as well as those situations following the court decision.” The basic issue involved in the “narrow v. broad” definitional debate is that criminal justice people, who advocate a broad definition, want the field to reflect more “research” and less “practice,” the former being something practitioners are far too busy to be interested in, and the latter being to avoid calling someone a forensic psychologist who happens to just be a clinical psychologist working in some legal capacity.

BEYOND DEFINITIONAL DEBATES: THE QUALIFICATIONS QUAQMIRE

Nova Southeastern University’s doctoral programs in psychology (Ph.D., Psy.D.) illustrate the many career paths and options that are possible regarding the educational and training requirements in forensic psychology, and the American Psychological Association’s statistics on graduation rates are also instructive to look at. The Ph.D. is the dissertation and research route, and the Psy.D. is a practitioner (non-research, usually clinical) route. Far more people obtain their Ph.D. than Psy.D. every year. Recent years have seen an expansion of graduate programs (at the master’s, doctoral, and postdoctoral levels) throughout the world, particularly in Canada, the United States, the United Kingdom, and Australia. Some universities even offer a combined JD (law degree) or MBA (business degree) with the Ph.D. or Psy.D. as part of an academic package, but such programs are notoriously rigorous and time-consuming. Ever year, about 4,500 doctoral degrees are awarded in psychology, approximately 14,500 master’s degrees are awarded in psychology, and about 75,000 undergraduate degrees are awarded in psychology (Bartol & Bartol 2004). It might be helpful to characterize formal education in psychology at all these degree levels, as follows:

The four subfields known as clinical, counseling, school, and industrial psychology make up what is known as the “applied” or practitioner’s side of psychology. In recent years, with the growth of forensic psychology, it is sometimes said forensic psychology now makes up a “fifth” applied branch of psychology. However, the APA doesn’t really recognize it as an academic area of study. Forensic psychology is NOT usually found as a concentration nor as a subfield specialty at the undergraduate level. In fact, most people with only a Bachelor’s degree in psychology quickly find themselves both unprepared and ineligible to become a professional psychologist. The minimum educational requirement for a professional psychologist is a master’s degree. At the master’s level, clinical, counseling, and school psychology attract the most students, and graduates of such programs, with appropriate clinical training, internships, or work experience, frequently seek licensure as a licensed psychological associates (LPA) or psychologist–master’s level. Since 1977, every state in the U.S. has developed a licensing procedure (e.g., seeNorth Carolina Psychology License Board) to assess the competency and ethics of anyone wanting to practice psychology. Licensing is also involved with a doctoral degree, but having a doctorate is one of the chief criteria in successfully passing state licensure requirements. A doctorate also qualifies someone to seekdiplomate status. A diplomate is a professional designation that someone has been certified as having advanced knowledge, skills, and competence in a particular specialty. A person must be licensed to qualify for diplomate status. The clinical specialty, as opposed to the counseling specialty, usually involves a focus upon the more serious mental disorders and problems, although this distinction is becoming blurred. Also, more and more of those calling themselves forensic psychologists are finding that their client population is becoming increasingly diverse, and the counseling track (as opposed to the clinical track) tends to prepare professionals more for this diversity.

The courts overwhelmingly recognize and accept psychologistsof all stripes as expert witnesses in all U.S. courtrooms (Jenkins v. U.S. 307F.2d 637 1962). When certification programs sprang up in the late 1980s, thefield continued to be a growth industry. Many practitioners regard theirarea of practice as forensic psychology, even forensic psychiatrists, althoughthere are certain educational differences associated with the related fields, particularly those that involve the field of medicine, asthe first two of the following do. Before continuing, the reader would be well-advised to read this informativeWikipedia article on brain damage first.

• Forensic Psychiatrist — an M.D. with an extra year of post-graduate study, four years of medical residency, and board-eligible for testing; any psychiatrist who spends 25% of their time with forensic populations

• Forensic Neurologist — an M.D. in internal medicine who studies the nervous system and treats people with brain damage or diseases of the brain; a neurosurgeon performs brain surgery

• Forensic Neuropsychologist — a non-M.D. who studies brain-damaged behavior; can be a Ph.D. in clinical psychologist who has taken a graduate-level neurology course; similar Ph.D. careers in biological psychology, biology, and neuroscience are listed below in a special box below

• Clinical Psychologist — a Ph.D. who has completed an internship where the Ph.D. can take 5-8 years but the PsyD which involves different training takes less, usually 3-4 years

• Licensed Psychologist — a M.A. or M.S. with five years experience; includes anyone licensed as a psychological associate (LPA) with a nonpsychology title such as marital counselor, psychotherapist, or mental health counselor

• Practicing Psychologist — a B.A. or B.S., employed under supervision; includes any mental health worker

• Forensic Psychologist — any psychologist at any degree level (the higher the better) who can assist the court under the F.R.E. relevancy test

Research Careers in Biological Psychology

• Behavioral Neuroscientist — aka psychobiologist, biopsychologist, or physiological psychologist; studies how functioning of the brain and other organs influences behavior

• Neuroscientist — studies the anatomy, biochemistry, and physiology of the nervous system

• Neuropsychologist — involves a mixture of training in psychology and medicine; conducts behavioral tests to determine what brain damaged people can and cannot do, and how their condition changes over time

• Psychophysiologist — studies heart rate, breathing, brain waves, and other body processes that change as a function of people’s behavior and information processing

• Neurochemist — studies chemical reactions in the brain and their consequences

• Comparative psychologist — aka ethologist, animal behaviorist; studies different species and relates them to evolutionary histories and ways of life

• Sociobiologist — aka evolutionary psychologist; studies social behaviors, like mating and sexual selection, and relates them to the functions they serve and the pressures that caused them to evolve

One of the basic distinctions between a psychologist and a psychiatrist is that the latter has a license to prescribe drugs, although there is a movement afoot in some 30 states to permit psychologists to prescribe drugs (seeQuackwatch article). Certain other restrictions apply depending upon educationalqualifications, but restrictions are not uniform as the case law is voluminous. In general, apsychiatrist or clinical psychologist is needed to testify on insanity or typesof mental disorders. Neurologists and neuropsychologists are necessary whenX-rays, C-scans, and MRIs are involved or with cases of deficits in higher-orderfunctioning. They are sometimes restricted from testifying on predictions ofdangerousness, this usually being the realm of academic criminologists. A licensed psychologistmight be used for psychometric testing and find some involvement with issues ofcompetency to stand trial (although many states mandate psychiatry or clinicalpsych. for this, especially in death penalty cases). A practicing psychologistwould more commonly be involved with mental status exams, civil commitment, ortreatment programs and rehabilitative potential (criminal justice degrees havefound some use here). Forensic psychology encompasses all the above and more,including diminished capacity (criminal responsibility), sentencing aggravationor mitigation, and psychological issues in the workplace (risk, discrimination,etc.) and the courtroom (jury selection, jury view, pretrial publicity,eyewitness testimony, etc.). The following list contains some of the more commonfunctions that a forensic psychologist might have:

• Psychological evaluation and expert testimony regarding criminal forensic issues such as trial competency, insanity, waiver of Miranda rights, criminal responsibility, death penalty mitigation, battered woman syndrome, other syndromes, drug dependence, and sexual disorders

• Assessment, treatment and consultation regarding individuals with a high risk for aggressive behavior in the community, in the workplace, in treatment settings, and in correctional facilities, as well as the screening and selection of law enforcement candidates
• Testimony and evaluation regarding civil issues such as personal injury, child custody, employment discrimination, mental disability, product liability, professional malpractice, civil commitment and guardianship
• Research, testimony and consultation on psychological issues impacting on the legal process, such as eyewitness testimony, jury selection, children’s testimony, repressed memories, pretrial publicity, and assessing the qualifications of other expert witnesses
• Research and theory building in criminology, including the design and implementation of intervention, prevention, and treatment programs for juvenile offenders, as well as the counseling of crime victims

The above list of all the things a forensic psychologist might do is a bit overwhelming, and certainly no one individual can or should try to do everything. Most forensic psychologists are specialized. Bartol & Bartol (2004) have identified the five subspecialties of forensic psychology as the following, with police and correctional psychology perhaps being the most “applied” subspecialties, and indeed, following mental hospitals, correctional facilities are the place where most forensic psychologists can be found. Entry-level salaries for a forensic psychologist (based on the U.S. Bureau of Prisons Psychology Service, one of the field’s largest employers) range from $42,000 to $92,000 (achievable) per year. The list below, where known, contains the most common educational qualifications of those in the most common practice areas.

• police psychology — (mostly Ph.D.s in clinical psychology or sometimes the D.Ed. in educational testing) — assist departments with optimal shift schedules, pre-employment screening tests, developing profiles of serial offenders, training in how to deal with the mentally ill, and provision of counseling services

• psychology of crime & delinquency — (mostly Ph.D.s or Masters in abnormal or school psychology, but also a number of Ph.D.s or Masters in criminal justice or sociology) — evaluate violence prevention programs, provide policy advice to legislators, help school officials identify troubled and dangerous youth, develop or implement psychological tests, and conduct research on psychopathy

• victimology & victim services — (mostly Ph.D.s in developmental or child psychology, but also a large group of MSW in social work and Masters in criminal justice or sociology) — evaluate or treat victims and witnesses, conduct psychological assessments for insurance or liability purposes, train service providers on victimization syndromes, support those who provide death notifications, and educate people on the multicultural impact of mental illness

• legal psychology— (mostly Ph.D.s but also a large group of other degree holders at various levels) — conduct child custody and abuse evaluations, assist attorneys in jury selection, evaluate a defendant’s competency or sanity, testify in court about relative validity of psychological procedures, and advise on the reliability of facial composites, eyewitness testimony, or confessions

• correctional psychology — (mostly Ph.D.s in clinical or counseling psychology, but at state-level, a variety of degree holders) — assist departments with pre-employment screenings and stress management, evaluate programs for juvenile and adult offenders, assess the prison classification or placement program

ADMISSIBILITY OF PSYCHOLOGICAL EVIDENCE

Since Jenkinsv. U.S. (1962), the general rulehas been that every psychologist is a potential expert witness, and must beprepared to interact with the legal system unless they have ethical grounds notto do so. This rather broad sweep of the psychology discipline includes all ofits subfields: cognitive, physiological, developmental, social, abnormal,clinical, counseling, industrial, and school. However, educational programs inpsychology haven’t yet geared up for training students in their forensic duties.Such training is noticeably absent at the undergraduate level, and only a dozenor so graduate programs in forensic psychology exist. Many academicpsychologists resent being placed in the position of being, shall we say,”whores” (do anything for money) of the legal profession. Therefore, ethics rather than legalprinciples have played a larger role in guidelines for forensic psychologists.We’ll talk about ethics again in a minute, but the main problem is that once apsychologist gets on the stand, they’re fair game for almost every dirty lawyertrick in the book, and they’re expected to respond to all things psychological,not just their specialty area.

Since Frye v. U.S. (1923), and it must be rememberedthat representatives from psychology were intimately involved in testimony whenthe Frye standard was developed, most states either follow a Frye-likerule or the FRE relevancy rule in admitting psychological evidence. An interestin meeting the Daubert standards characterizes many in the psychologyprofession, but there are plenty of practitioners who do not like Daubertfor many reasons. Let’s first look at the field in terms of Daubert, thenthe Frye-like standards, then the FRE relevancy test:

In terms of Daubert:

1. Testability: The clinical theories and techniques relied upon by psychiatrists have had as much (if not more) epidemiological follow-up in the form of “natural history” studies as those in any other branch of clinical medicine.
2. Peer review and publication: Forensic psychiatrists regularly discuss their methods in peer-reviewed professional journals.
3. Known or potential error rate: Error rates are specified in psychiatric diagnosis as in any other branch of clinical medicine.
4. Standards controlling operation: Standards governing the practice of forensic psychiatry are articulated in Ethical Guidelines, which provide methodological as well as ethical benchmarks.
5. General acceptance: Courts have acknowledgment that well-established propositions in a particular subfield of psychology may be less challengeable and more easily defended than less well-established opinions. At the same time, by ruling out a rigid and absolute “general acceptance” test, courts have allowed for “reasonable minority” opinions.

In terms of Frye-like standards:

1. Certain theories and ideas have more credibility in the field of psychology than other theories and ideas. For example, the theory of atavism has long been refuted, and drive theories have more general acceptance than instinct theories.
2. In most cases, psychologists should not be allowed to testify on the issue of intent or motive, as these have the same effect as testimony on the ultimate issue of guilt or innocence. For example, a psychologist cannot testify to premeditation, but can state the defendant is impulsive. However, sometimes testimony on the lack of a specific intent is appropriate, as is testimony in support of a self defense claim.
3. Under no circumstances should psychologists be used to argue whether a witness is truthful or lying. The rule is that courts are prohibited from ordering witnesses to submit to psychological examinations or therapy for repressed memories in the case of eyewitnesses.
4. Unimpeached psychological testimony, except in the case of a serious mental disorder rendering the defendant incapable of understanding their action, can be contradicted by contrary lay witness testimony, and juries should be instructed that they can disregard psychological evidence if they want to.

In terms of FRE standards:

1. Psychological testimony should be relevant in making some fact in the case more or less probable that it would be without the testimony. In short, psychology should assist the trier of fact, and not be involved in assisting the trier of law. Insanity is a legal concept, for example.
2. Psychological testimony should be related to mental state, personality, or character of the defendant, and either of these should be at issue in the case before admitting such testimony.
3. The probative value of psychological testimony should outweigh its prejudicial impact. Juries are often impressed by an expert’s qualifications or psychometric testing, so the court must be assured that the value of the testimony is greater than the expert’s influence on the jury.
4. The expert should have expertise in the area in question in the particular case. This means that a mix of education and experience qualifies one as an expert. If one expert has a master’s degree but little experience (a one-year internship), they are less qualified than another expert with only a bachelor’s degree but who has testified as an expert in 40 similar cases.

Each different set of admissibility standards has its advantages anddisadvantages. The FRE standard (as amended to avoid disguising experts as laywitnesses) is probably the best since Frye-like standards sometimes run the risk of letting”junk science” in and Daubert requirementsare a bit restrictive. Several states also use a DUAL SYSTEM of standards: onefor the scientific soundness of the results of any psychological tests orexaminations; and another for qualifying the expert witness and their scientificopinion testimony. Psychological tests, like the MMPI for example, are subjectedto Daubert requirements in terms of error rates, threats to validity, andso forth, while the expert is admitted under Frye, a Frye-likerule, or the FRE. The trend is toward assuring more rigor and discipline withthe latter by raising the educational requirements (to a Ph.D. or J.D./Ph.D. asa kind of permit to practice).

Ethics: The Specialty Guidelines for Forensic Psychologists go beyond the APA Ethical Principles of Psychologists and represent an aspirational code of ethics for those who represent themselves as psychologists involved in providing professional psychological expertise to the judicial system. The following substantive areas are covered:

• RESPONSIBILITY – services and/or products should be provided in a forthright, responsible manner, reflecting the highest standards of the profession
• COMPETENCE – services should only be provided in those areas of psychology in which a person has specialized knowledge, skills, experience, or education
• RELATIONSHIPS – fee structure and anticipated costs should be contracted beforehand, avoiding “contingency fees”; a certain amount of work should be done pro bono, and clients should be informed of their legal rights and give informed consent
• CONFIDENTIALITY – every effort should be made to maintain confidentiality of any information that does not bear directly on the legal purpose of the services provided
• METHODS – accepted clinical and scientific standards for scholarly/empirical investigation should be used, actively testing plausible rival hypotheses, minimizing reliance upon hearsay, and exercising extreme caution in preparing reports or other documentation, applying such detail and quality to the documentation that the standard is higher than for general clinical practice
• COMMUNICATIONS – every reasonable effort should be made to correct any misunderstandings, misuse, or misrepresentation of products, evidence, and testimony, but avoiding any out-of-court statements

SELECTED PRACTICE AREAS

Here is a nearly-complete list of all the practice areas where forensic psychology has made unique contributions to. The list includes: risk assessment with respect to the potential for violence and dangerousness; understanding criminal behavior, the psychology of aggression and juvenile delinquency; jury behavior and selection; the accuracy ofeyewitness testimony; the psychology of confessions and false confessions; the dimensions and assessment of legalcompetency (e.g., to stand trial) and insanity; domestic violence and family law including custody evaluations; prevention and treatment ofantisocial behavior. For the most part, this list makes up the topics that are discussed in this course. The following sections provide some brief overview of a selected subset of these areas.

EYEWITNESS TESTIMONY

A few psychologists try to carve out a specialty area whereit’s understood that this is the one and only area they’ll testify about. Thiswork is typically unpaid work, as opposed to all-purpose psychologists whousually get paid. Eyewitness science is one such area. It’s estimated that there are over 4,250 wrongful convictionseach year due to sincere, yet inaccurate eyewitness identification. This has ledmany courts to consider inviting forensic psychologists to offer testimony aboutperception and memory. Forensic psychologists are not permitted to testify onthe accuracy of a particular witness, only on the inherent unreliability ofeyewitnesses in general. They are allowed to explain the mechanisms ofperception, processing, memory, and recollection, and to describe the empiricalresearch which has been conducted on these subjects. With victims, the rule isthat a psychologist can testify about how victims of child abuse, domesticviolence, or rape often have trouble remembering the incidents in their past,but they cannot state whether a particular victim was abused, battered, or raped(but juries usually get the idea).

Several states do not allow forensic psychologists to testifyabout eyewitness identification at all, the reasoning being that it invades theprovince of the jury. Some jurisdictions don’t consider it Frye-compatible;others seriously limit its scope to general circumstances under the FRE, andit’s a common subject matter in Daubert pretrial hearings.

The expert testimony involves a discussion of event factors(duration, complexity, and violence). Eyewitnesses normally overestimateduration. Personal factors are also involved (stress, weapon focus, andexpectation). Psychologists have termed the relationship between stress andmemory the Yerkes-Dodson Law. Expectation involves personal bias, cultural bias,and stereotypes. Over half of victims who didn’t even see or hear theirassailant think it was a black man. Memory is also affected by storage factors.One psychologist, Elizabeth Loftus, has pioneered research in this area, whichdemonstrates the gap-filling process of the mind (with certain words andinaccuracies). There’s actually a negative correlation between witnessconfidence and accuracy. Finally, recall factors play a part, and psychologistsare especially critical of police line-ups, being quick to spot suggestiveprocedures, or other social forces at work.

COMPETENCY TO STAND TRIAL

If a defendant’s irrational behavior is known to either sideor observed in court, this raises doubts as to competency (a legal concept) andability to assist his/her attorney. In such cases, a special competency hearingmust be held. Forensic psychologists often testify at these hearings.Incompetency is separate from insanity. If the defendant is found incompetent(IST), no trial is held. If the defendant is found competent, then a trial willcommence at which time the issue of insanity will be raised. Competency is allabout mental state at the time of trial; insanity is about mental state at thetime the offense was committed.

Determination of competency normally takes place during anexamination at a state mental hospital or a forensic psychiatric unit of acorrectional facility. Other times, private facilities are involved. The inmate is interviewed for a period of days, sometimesweeks. Psychometric and neurological testing will also be done. Mentalretardation, amnesia, and mild forms of mental disorder are not considered proofof incompetency by the courts. In general, the courts will often take persons totrial that psychiatrists think are incompetent. If the person is declaredincompetent, the court will order them, under civil commitment, to undergorehabilitation with drugs and/or therapy so that they can be restored to a pointwhere they are able to stand trial.Psychologists often get paid forrestoring someone to competency so they can stand trial, which in many ways is adirect conflict of interest if they testified previously about someone’s needfor treatment, and referred them to their own clinic or that of acolleague’s.

Forensic treatment programs fall into three categories: traditional(medication, family therapy, substance recovery); contemporary (cognitivetherapy, biofeedback, psychoeducation); and targeted (behavioralapproaches to restoring competency, including role playing and mock trials).Somewhere around 50-75% of the time, the treatment is effective inraising them to a higher level of functioning so that they can stand trial.

PREDICTION OF FUTURE DANGEROUSNESS

Judges are often uncertain about how high to set bail or what sentence to impose;convicted inmates often come before various boards or committees asking forrelease; schoolchildren with tendencies toward violence often come to forensicattention from mandated reporters; and police often call the mental healthcenter for assistance in dealing with a mentally disordered offender. These aresome of the situations in which a forensic psychologist or mental healthprofessional is legally obligated to assess the risk of further, or futureviolence.

A standardized risk assessment interview or instrument isgiven to the mentally disordered criminal at some point. Many states havemandated particular forms in their statutes. An individual’s score is thencompared to national norms that have been put together from longitudinal orcohort research. A review of that research is beyond the scope of this lecture,but suffice it to say that predictive validity and actuarial norms are quitewell-known. A few jurisdictions use Hare’s PCL-R (Psychopathy Checklist Revised)where a score of 30 out of 40 tends to predict violence. Other jurisdictionsrely upon the MMPI, the Rorschach, or some combination ofboth.

The official position of the APA is thatneither psychologists nor psychiatrists have any special abilities to predictfuture dangerousness. Despite this, both kinds of experts are frequently calledupon by the legal system for just such services. The error rates in predictingdangerousness are quite high, on the order of 80-90%, regardless if actuarial orclinical methods are used. Past criminal behavior is actually the best predictorof future dangerousness. Also, many of the risk markers that are used in thelegal system are sociological, not psychological. Things such as “bond withcommunity” might be a legal criteria which a psychologist may or may not beable to ascertain.

INSANITY

Both “sanity” and”insanity” are legal terms, and forensic psychologists andpsychiatrists must relate their scientific language to them. Various legaljurisdictions define insanity differently and require different tests. There areat least five (5) different tests:

1. The M’Naghten Test (1843) – this is the hardest one for the defense to satisfy. It really consists of two tests: one, a determination that the defendant was suffering from a mental defect; and two, proof that at the time of offense, the defendant could not tell the difference between right and wrong.

2. The Irresistible Impulse Test (1844) – this is intended to tap into the defendant’s powerlessness to do otherwise, as with compulsive disorders or syndromes. It covers the things people do anyway even when they know it is wrong.

3. The Durham Test (1954) – this is a largely abandoned test that asks if the offense was a product of a mental disease.

4. The A.L.I. Test (1970) – this one, formulated by the American Law Institute, asks whether at the time of offense, as a result of mental disease, the individual lacked substantial capacity to appreciate their criminality or conform to the requirements of law.

5. The Federal Test (1982) – this one was codified in the 1984 Insanity Defense Reform Act, and involves determining if a severe mental disease made the person unable to appreciate the wrongfulness of their act.

This isn’t the place to go into all theintricacies of insanity law, but the mainproblem most people encounter is sorting out the historical lineage of the various tests. Themost commonly seen misperception is that M’Naghten’s modern equivalent is theDurham Test, and this is correct to a point. The “know” requirement of M’Naghten was first replaced by the”appreciate” standard of Freeman, and “mental disease ordefect” (two separate things) was replaced by components of the ALI rule,not the Durham Test which only existed in the District of Columbia from 1954 to1972. Mental defect isusually thought of as permanent; mental disease need not be. Mentaldefect is what M’Naghten was all about. It required proof of an incurablecondition. Modern psychology is all about mental disease, and psychologistsrarely believe in incurability. Durhamhas more in common with Freeman, Wolff, and a number of othercases which produced standards like diminished capacity, compulsive impulse, andsubstantial appreciation. There’s also something called Revised M’Naghten, whichgets at the recalcitrant treatment possibilities of those with antisocialpersonality disorders, sociopathy, or psychopathy.

REFERENCES

Ackerman, M. (1999). Essentials of Forensic PsychologicalAssessment. NY: Wiley.

Arrigo, B. (2000). Introduction to Forensic Psychology: Issues andControversies in Crime and Justice. NY: Academic Press.

Barker, R. & Branson, D. (Eds.) (1999). Forensic Social Work, 2e. Binghamton, NY: Haworth.

Bartol, C. & Bartol, A. (2004). Introduction to Forensic Psychology. Thousand Oaks, CA: Sage.

Blau, T. (1998). The Forensic Documentation Sourcebook: A ComprehensiveCollection of Forms. NY:Wiley.

Ganellen, R. (1996). Integrating the Rorschach and the MMPI-2 in PersonalityAssessment. NY: Lawrence Erlbaum Assoc.

Hagen, M. (1997). Whores of the Court: The Fraud of Psychiatric Testimony.NY: Harper Collins.

Hess, A. & I. Weiner. (1999). (Eds.) The Handbook of Forensic Psychology.NY: Wiley.

Melton, G. et al. (1997). (Eds.) Psychological Evaluations for the Courts.NY: Guilford Press.

McCann, J. & F. Dyer. (1996). Forensic Assessment with the MillonInventories. NY: Guilford Press.

Moenssens, A., J. Starrs, C. Henderson & F. Inbau. (1995). ScientificEvidence in Civil and Criminal Cases. Westbury: Foundation.

Ogloff, J., Tomkins, A. & Bersoff, D. (1996). “Education andTraining in Psychology and Law/Criminal Justice. Criminal Justice & Behavior 23:200-235.

Ramsland, K. (2002). The Criminal Mind: A Writer’s Guide to Forensic Psychology. Cincinnati: Writer’s Digest Books.

Roesch, R., S. Hart & J. Ogloff. (1999). Psychology and Law: The State ofthe Discipline. NY: Kluwer Academic.

Ross, D., D. Read & M. Toglia. (1994). (Eds.) Adult Eyewitness Testimony:Current Trends and Developments. NY: Cambridge Univ. Press.

Shapiro, D. (1999). Criminal Responsibility Evaluations: A Manual for Practice.NY: Professional Resource Exchange.

Tapp, J. (1976). “Psychology and Law: An Overview” AnnualReview of Psychology 27: 359-404.

Towl, G. & D. Crighton. (1996). The Handbook of Psychology for ForensicPractitioners. NY: Routledge.

Valciukas, J. (1995). Forensic Neuropsychology: Conceptual Foundations and Clinical Practice. Binghamton, NY: Haworth.

Walker, L. & Shapiro, D. (2004). Introduction to Forensic Psychology: Clinical and Social Psychological Perspectives. NY: Kluwer Academic/Plenum.

Wrightsman, L., M. Taflinger & M. Linsenman. (2000). Forensic Psychology.Belmont, CA: Wadsworth.

Ziskin, J. & D. Faust. (1995). Coping with Psychiatric and PsychologicalTestimony. NY: Law & Psychology Press.

Online Resources