1st Slide

Social Psychology and the Legal System

How much faith do you put in the justice system? Most people would claim a dose of
healthy cynicism towards the legal process and, in particular, solicitors, but in the
population as a whole, a lot of that seems to be just bravado. Jacqueline Wheatcroft – a
forensic psychologist from the University of Liverpool – has been researching the
psychology of the courtroom for over a decade. In one of her studies, which familiarised
members of the general public with cross examinations, the focus groups’ feedback was
eyebrow-raising. “They just did not believe that the barrister would try to manipulate or
trick them into saying things that were wrong.”

You may scoff at that, but it’s a serious problem. For all the solemn imagery that the
scales of justice and gavel conjure in our mind – that of unbiased, dispassionate justice
– there are plenty of known problems with the courtroom. So many, in fact, that it’s
difficult to know where to start, until you narrow it down to the common factor that all of
the issues have in common: people.

How people’s perceptions, misperceptions, and cognitive biases can affect criminal
investigations and court room outcomes?

*Studying the legal system helps psychologist s see how behaviour occurs in a
complex. Personally relevant, and emotion laden-contests.

2nd Slide & 3rd Slide

We humans, packed with our own years of experience and internal biases, are
extremely unreliable. We’re also, as it turns out, worryingly easily swayed, and often
less by cold, hard facts than what conveniently fits our understanding of the world
around us. Acknowledging this isn’t a way of criticising the integrity of individuals, it’s
about putting the justice system beyond reproach.

The legal community understands the importance social psychological factors play --
Many law schools require their students take courses on it

Social Psychology has examined many areas of legal/social significance:

 Accuracy and Persuasiveness of Eyewitness Testimony

 Criminal investigation interview techniques
 Factors which can affect Police line-ups
 Jurors ability to follow judges instructions
 Defendant Characteristics
 Jury size
Eyewitness Testimony

Lab studies have shown that eyewitness testimony can be crucial in criminal cases.

Example:

Elizabeth Loftus -- preeminent researcher of eyewitness testimony and repressed memories.

Constructed a hypothetical homicide-burglary scenario:

One group of "jurors" heard only circumstantial evidence which linked the defendant to the crime ---
18% voted to convict

A second group heard the circumstantial evidence and the corroboration of 1 eyewitness --- 72 %
voted to convict !

A third group heard the c. e. And the eyewitness, but the eyewitness was discredited (Your blind, it
was dark, you were a 1/4 mile away from the defendant). Despite the eyewitness being attacked ,
68% still voted to convict !

The bottom line is that criminal cases where an eyewitness is produced is more
likely to result in a conviction (Visher, 1987)

If the prosecution produces an eyewitness, the defense needs to both discredit that
eyewitness and be able to produce their own eyewitness, in order to minimize the
damage to the defendant.

Eyewitness Accuracy

Buckhout (1974) --- Staged a physical-assault on a professor in front of about 140 students at
California State University.

6 weeks later, the students were shown photographs of six males, one of which was the assailant. 60
% of the students identified the wrong individual.

Juror’s often focus on the mannerisms, of a witness, so more confident, self-assured witness’s
testimony is given more credibility.

However, there is only a small positive correlation between self-confidence and

accuracy of report.

Large scale analysis of eyewitness accuracy indicates that eyewitnessess are only
about 80% accurate under good circumstances.

People’s memory can often be influenced after the fact

The Misinformation Effect: Questions asked can often contribute to the
distortion of a memory.

The Misinformation Effect : (remembering wrong information)

This experiment helps to demonstrate how question wording can affect a persons
memory for an event.

Loftus (1978) : Had students view slides of a traffic accident.

One group saw the car parked in front of a stop sign.

The second group saw the car parked in front of a yield sign.

Later, students were asked : Did you see a green car pass in front of the red car while it was at the (
stop or yield) sign ?

Students who saw the "Stop" slide and were asked the question with the word "stop sign" were 75%
correct when asked:

Was the car in front of a stop sign ?

Students who saw the "Stop" slide and were asked the question with the word "yield sign" were only
41% correct when asked.

Moreover, the students who were wrong were adamant in their belief that the car was at a yield sign !

Retelling an event can solidify memories, accurate or not.

Attorneys often have their witnesses go over events repeatedly before trial, helping
their witnesses seem more self-confident and assured.

Police interview techniques:

Because the type of questions asked can influence a witnesses subsequent memory
for an event, researchers have developed a "cognitive interview technique" for police
to use which can help gather more information than "traditional interview"
techniques.

Traditionally, police will ask questions which are based on their own pre-existing
understanding of the facts -- this can lead to confirmation bias.

Fisher et. Al. (1987) developed an interview technique which produced 50% more
information when used by actual police officers.
Fisher’s Guidelines for police interview techniques:

1. Allow people to tell their story uninterrupted.

First, have them recreate the setting, and visualize the scene, showing pictures if necessary.

Prompt them to remember what they were thinking and feeling at the time (mood congruency)

2. After their complete retelling, then attempt to jog

their memory with open-ended questions which do not reveal any additional information which the
police may know.

Minimizing False Lineup identifications:

Expectations can affect police lineups

People often will choose a person who is similar to the actual culprit, if the culprit is
not in the lineup him/herself.

Having people look at numerous mugshots can reduce accuracy in later identifying a
suspect. (Brigham & Cairns, 1988)

How a person looks for a suspect can lead to misidentification:

Witnesses who analytically compare mugshots are less accurate than witnesses
who look for a face to just "pop" out of a lineup or photographs.

Eyewitness misidentification can be reduced by having people make "yes/no"

judgements to a series of suspects one at a time, rather then showing them all
suspects at once.

Misidentification can also be reduced by including instructions that state "the suspect
may not be in this lineup, so you are under no pressure to pick out an individual from
this lineup"

Because of psychological factors which affect peoples memories, Social

Psychologists are often called on as expert witnesses to help educate juries:

Social Psychologists often testify how:

 Eyewitnesses often perceive events selectively

 Discussion of events after they happen can affect subsequent memory of that
event.
 Research using staged crimes indicate the fallibility of eyewitnesses
 Eyewitnesses are especially prone to error when trying to identify someone of
another race.
 That eyewitness confidence in not a good indication of eyewitness accuracy.
 Experiments have shown that this information can cause juror’s to analyze
eyewitness testimony with more skepticism and discuss eyewitness testimony
more fully during deliberations.

Defendant’s Characteristics

Researcher’s have studied how physical attractiveness and similarity to the juror’s
of a defendant can affect the outcome of a trial.

Researchers give different mock juries the same facts concerning a case and
manipulate physical attractiveness and/or similarity of the defendant to the jurors.

Although jurors do not ignore the "facts" of a case when deliberating, when the
evidence is ambiguous or lacking, they are more likely to let the personality traits of
the defendant influence their decisions.

Berry & McArthur (1988) -- Found that students judged "baby-faced" adults as being more naive and
rated them not-guilty of intentional criminal acts more often than "mature-faced" adults

Downs & Lyons (1991) -- Had police escorts rate the physical attractiveness of defendants in over
1500 misdemeanor cases in Texas and then correlated the physical attractiveness with the monetary
fines given by the judge.

A strong negative correlation was found between the physical attractiveness and the
amount of money the person was fined.

Similarity of the defendant to the jury.

Political Beliefs (Amoto, 1979)

Same Language (Stephan & Stephan, 1986)

Expectations of stereotypical behavior:

Mock jurors punished white defendants more severely for white-collar crimes
(embezzlement, fraud) (Mazzella & Feingold, 1994)

Mock jurors punished African-American defendants more harshly for violent crimes.
(Sweeny & Haney, 1992).
Despite the cognitive biases of jurors, when the evidence is clear and the jury
focuses on that evidence, these biases will have minimal impact on the outcome of a
trial

The Judges Influence in the courtroom

Very often, a judge will instruct jurors to ignore a piece of evidence of information
during the course of a trial.

However, studies have shown that jurors are often unable to ignore or repress the
forbidden testimony, and the fact the judge tells them to ignore it may make it even
more salient.

This has lead to "rape-shield" laws, which state the discussion of a rape victims prior
sexual history is not admissible.

Pre-trial publicity can also affect the jury, and judges instructions to potential juries to
ignore everything they had seen on TV and in print have little impact.

Kramer et. al. (1990) Exposed 800 mock jurors to pre-trial publicity damaging to the
defendant (past criminal history)

After jurors saw the videotape of the trial, they either heard the judges instructions to
ignore the pre-trial publicity or heard no additional instructions. The same proportion
of jurors voted to convict in both instructional groups.

Certain studies have shown that even a judges nonverbal behaviors can be picked
up on by juries. (Hart, 1995)

Juries and Justice

Jury comprehension: Due to the intricacies of the legal system, the understanding of
the jury with respect to certain legal terms can be quite different from the judges
and/or lawyers understanding.

Smith (1991): showed that pretrial training sessions for jurors can make the jury more
receptive and understanding of both the judges instructions to them and the precise
comprehension of rules of evidence and testimony.

Death Qualified Jurors: In capital punishment cases, jurors who will not support capital
punishment are excluded. Attitude surveys of people who do not oppose the death penalty
 show that they have more interest in crime control than due process of law which might
favor criminals.

6 or 12 people on a jury?

The less people who are on a jury, the less deliberation, and less diversity, and less
chance of minority influence to reverse the predominant viewpoint of the jury

Slide 5

Serving as a consultant to the court is a relatively new role for the psychologist.
Traditionally, forensics has been considered the area of psychiatric expertise. A consultant's
role is advisory and collaborative; consultants have no line power of administrative authority
over those with whom they are requested or assigned to work. Services of a forensic
psychologist may be requested at any of the three stages in the judicial process

1. Pre-trial
2. Trial, and
3. Post-trial.

Pre-Trial Process

Pretrial procedures in both civil and criminal cases vary from jurisdiction to jurisdiction. In
general terms, it's any of the activities that take place prior to the trial hearing.

Civil pre-trial procedures

In civil pretrial procedures, it starts from the plaintiff/petitioner filing a complaintin the proper
court against the defendant/respondent. The complaint states the plaintiff's version of the facts,
the legal basis (e.g. breach of contract, negligence), and the damages or relief asked for. Then
it ends when the defendant is served with the summons, acknowledges receipt of it, and sends
back to the court an answer to contest the allegations. Then both parties await a date set for
court hearing. That's the general picture in a nutshell.

Before the date of the court hearing, sometimes there might be pretrial conferences (usually
between the judge and the lawyers) such as early conference, mainly (a) to help the judge
manage the case, (b) to set a timeframe for concluding all pretrial activities, (c) review evidence
and clarify issues, and (d) set a time for an issue conference if necessary to settle on
"stipulations" (undisputed facts or points of law).

In some cases, the pretrial procedure may include an arbitration or mediation programme. For
example, divorce cases often involve disputes over child custody, so the court may refer or
require a third party to reach a settlement in that before the court hearing date.

Criminal pretrial procedures

Not to put too fine a point on things, the criminal procedures of all countries are a mess, so the
following is in very broad terms.

Criminal pretrial procedures vary from jurisdiction to jurisdiction, and the steps are not
necessarily equivalent between jurisdictions. The main reason boils down to the different
hierarchies of criminal offences between countries (e.g. indictable offence in UK vs. felony in
USA).

The whole criminal procedure is easier to see in action than to describe, to be honest.

Preliminary sequence of events:

- Criminal act takes place.

- Crime report to the police.
- Police investigation, resulting in unsolved case or below.
- Arrest of suspect, resulting in either release or below.
- Booking at police station, resulting in release or below.
- Prosecution of suspect, then await initial court appearance (below).

Initial court appearance

The initial court appearance of the suspect is arguably both the start of the pretrial procedure
and the end of it. It's pretrial because it's before the main trial. It's not because it's already one
of many court appearances.

The initial court appearance is mainly to sort cases according to minor, intermediate, hybrid and
serious offences (the classification of them varies between jurisdictions). Typically it takes
places without jury in a magistrate's court (magistracy, a.k.a. "police court"). It results in either
charges dropped ("case dismissed") or the case moves forward to the next stage (preliminary
court hearing).

The initial court appearance tends to be the default court to try minor statutory offences (e.g.
traffic violations). For any minor offence that needs to move forward, those are then lumped
along with other intermediate or hybrid offences for the main higher court to handle (i.e. not the
preliminary court hearing).

The end of the preliminary court hearing is generally taken to mean the end of the criminal
pretrial procedures.
What is the role of Psychologist in the Pre-Trial Process

1. Showup identifications through the following:

a) the inherently suggestive nature of showup procedures;
b) the psychological effect of eyewitness identifications on the jury; and
c) the constitutional implications as a result of showup identification.

In addition to the methods of the showup procedure, the location further

intensifies the intrinsic suggestiveness of the procedure. Placing a suspect at the
scene of the crime shortly after its commission further sets up the suspect in a
suggestion of guilt.

2. Diagnostic appraisal or making evaluations of defendants to determine

competency to stand trial.

3. A forensic psychologist conducts pre-trial or pre-release psychological

evaluations of defendants. A typical evaluation would involve gathering an
extensive background history, which is compared to victim and witness
statements. The forensic psychologist supplements these data with the results of
an extensive battery of psychological tests, which are compared to normative
data on other criminals and persons of the same age and gender. The final
product is a comprehensive psychological evaluation, including information about
mental health and substance abuse problems the defendant may be
experiencing, his need for treatment and risk to the community.

4. Psychologists may provide expert opinions regarding an individual's competency

to be a witness

5. Key people in the Treatment services in some cases (Drug Abuse)

Slide 6

Gathering Evidences

Psychologists are actively engaged in and committed to evidence-based practice.

Evidence-based practice in psychology (EBPP) is the integration of the best available research
with clinical expertise in the context of patient characteristics, culture, and preferences.

This definition is an adaptation of the classic evidence-based medicine definition provided by

Sackett (Sackett, Rosenberg, Gray, Haynes, & Richardson, 1996) that has been widely used
and paraphrased since its inception: “Evidence-based practice is the conscientious, explicit, and
judicious use of current best evidence in making decisions about the care of individual
patients.”
Practicing psychologists are often faced with questions on a regular basis, for which evidence
might exist to answer them, but which may not be easily accessible. A recent search of
PsycINFo located many articles about psychologists adopting evidence-based practices, but
very few about the skills and steps needed to search for evidence. So although psychologists
undergo extensive training in research methods, there may be some recent initiatives from the
world of library science that may be additionally helpful in locating evidence to answer
questions. Many of the techniques outlined will already be familiar, but here they are placed
within the context of evidence-based practice (EBP), and they can be supplemented by articles,
chapters, books, and websites in quickly and efficiently locating relevant and useful evidence for
either research or practice (Eady, Wilczynski, & Haynes, 2008; McGowan, 2008; McKibbon &
Wilczynski, 2009).

The evidence-based process has been well-documented (Guyatt, Rennie, Meade, &
Cook, 2008; Hamilton, 2005; Parkes, Hyde, Deeks, & Milne, 2001; Straus, Richardson,
Glasziou, & Haynes, 2005; Weinfeld & Finkelstein, 2005; Wyer et al., 2004) and
involves the following steps, of which this paper will concentrate on the first two: (1)
Formulate a clear question about patient or research issue; (2) Search the literature to
find the best available evidence; (3) Critically appraise the evidence for its validity,
accuracy and usefulness; (4) Apply useful findings, integrating them with clinical
expertise and patient’s characteristics, culture, and preferences; and (5) Evaluate the
outcomes and if needed, initiate a refined search. Formulate a clear question about
patient or problem.

Scientific Research in the Context of the Legal System

“The cross-examination process is the tool that we utilize in the courtroom along
with the advocacy of lawyers. What I think is missing from some scientific
research that’s done for purposes of litigation is the opportunity for there to be a
true peer review process.”

— Marsha Rabiteau

EYEWITNESS IDENTIFICATION RESEARCH

A social scientist described a notable—and rare—success story in which a

psychological insight led to substantial change in the operation of the legal
system—in this case, police lineup procedures. The insight grew out of
eyewitness identification research that began in the 1970s. The problem was that
the identification of guilty parties by eyewitnesses had great credibility in the
courtroom even though the error rate of mistaken identification was high.

Psychologists attempted without success to convince the justice system of the

unreliability of the technique through the 1980s and early 1990s. As long as 25
years ago, however, extensive psychological research with eyewitness
identification had begun to expose the weaknesses of the technique.
Psychologists found that witnesses tended to point to the person in the lineup
who looked most like the perpetrator relative to the other people in the lineup—
but who was not necessarily the perpetrator. They made a relative, not an
absolute, judgment. Because someone in a lineup always looks more like the
perpetrator than the other people in the lineup, witnesses tend to choose that
person rather than choosing no one. By using a sequential system, in which
witnesses were shown a single pic-ture at a time without knowing whether they
would see any more, the accuracy rate rose significantly.

Even after this finding had been established, however, the court system resisted
any changes. Psychologists tried explaining it directly to the police, testifying as
expert witnesses in court, and talking to the media. But general change did not
begin until DNA testing arrived in the 1990s. It soon became apparent that DNA
evidence had the capacity not only to convict but to exonerate those convicted
mistakenly. Criminal justice researchers were able to show that 84 percent of
these mistaken convic-tions were based on eyewitness evidence. In 1997,
Attorney General Janet Reno, having seen this evidence, ordered the National
Institute of Justice to develop the first set of national guidelines on eyewitness
evidence and to include the substantial body of findings regarding eyewitness
evidence produced by research psychologists. This set in motion the substantial
change that has now taken place.

The social scientist listed several factors that finally led to change: (1) the
scientists had clear experimental evidence; (2) they had publicized that evidence
in leading, peer-reviewed psychology journals; and (3) they developed their own
policy recommendations based on evidence, learned which policy makers could
effect change, and lobbied those policy makers for change.

RESEARCH DESIGNED TO INFLUENCE COURT PROCEEDINGS

The session moderator, a scientist, suggested that courts may ask several
questions about research whose results are used to influence court proceedings.
First, does the content of the research meet the standards for scientific evidence
discussed in Daubert? Second, is the provenance of the evidence appropriate: Is
the organization or the person who did the research trustworthy? In what context
was it issued?

The moderator went on to say that experts bringing evidence to trials may gather
their information in two ways. The first is “before-the-fact” science, where the
literature in the field is surveyed and presented by the expert. The second is
“after-the-fact” science in which actual experiments or other research is done to
answer a question in the context of particular litigation (such as the breast
implant controversy). After-the-fact science has several virtues. It is relatively
frugal, because the goal is clear and specific, and it is highly focused, so that the
scientist can design the research to answer a specific question.

Slide 7

Events During Trial

1. Psychologists should always act in such a way as to maintain the repute of the
profession when working as an expert or professional witness. This includes
being punctual and arranging to arrive at the Court in good time, being
appropriately dressed and conducting themselves appropriately towards the
Court, colleagues and all other participants. It is the case that expert and
professional witnesses are generally permitted to sit in Court whilst other experts
are giving evidence, both in the process of voir dire and in the trial or hearing
itself. Psychologists should, wherever possible, sit in the Court to listen to what is
being said and to prepare themselves further to give evidence and to prepare for
cross-examination on issues raised by preceding witnesses.

2. Psychologists acting as expert or professional witnesses may be asked to attend

Court on a ‘just in case’ basis, i.e. well ahead of the expected time that the expert
actually gives evidence. It is also not unusual for ad-hoc professional meetings or
meetings between counsel to be arranged immediately prior to the delivery of
evidence, or for new documentation to be submitted for consideration. Arriving
early may assist with this. The fundamental issue is your role in assisting the
Court. Psychologists should where possible be accommodating and helpful to the
Court.

3. Psychologists are always expected to provide truthful testimony. Where relevant

psychologists should decide in advance if they will take an oath or affirmation.

4. In Court proceedings the Court Clerk keeps a note of the progress of the trial,
logging the time each witness goes into and leaves the witness box. Only the
Court Clerk is able to endorse a later explanation by an expert that an extended
period of waiting to give evidence was incurred by, say, an unanticipated
prolongation of voir dire submissions or evidence by a preceding witness taking
up much more time in cross-examination and re-examination. It is important that
psychologists make a point of liaising with the Court Clerk to ensure that the clerk
will be in a position to provide the necessary evidence to justify a claim for a
prolonged period of waiting.

5. Psychologists should make reasonable efforts to plan ahead concerning Court

attendance. Where appropriate witness summons may be issued with a broad
time frame covering multiple dates. The instructing party should be asked on
what day exactly it is anticipated the psychologist will start giving evidence and
 how long it is likely to take. Often a psychologist will be asked about availability in
advance and requested to reserve dates in the diary. Courts can be very
accommodating to experts and will often build a witnesses timetable around the
expert’s availability.

6. Psychologists are expected to preparing adequately for a Court appearance and

the provision of oral evidence.

Slide 8
Social Psychology in the Court Room: Perceptions of Justice
Law, science and technology are emerging as a new genre of legal knowledge for practitioners
and scholars. The study shall demonstrate the importance in psychological discoveries in the
administration of justice. It is the forensic psychologist that is qualified to measure the truth and
lies/ mental capacity to stand a trial/ and difficult cases that require scientific methods. For
instance, the work of expert witness is attributed to scientists whose expertise shall abet court
decisions on the matter. The law does not cover repetition of certain crimes by individuals but
deals with behaviour in terms of regulations. Psychology gets into the nature of certain
behaviour and is prepared to reconstruct facts using scientific and empirical methods. Cases
involving certain use of violence against persons, and conducting forensic investigations will
definitely require science and technology. The court does not have scientific preparations to
measure the truth or establish corrective justice. It is in this manner law considers the
importance of using scientific methods in order to arrive at informed decisions. It is also in the
interest of social psychology that certain crimes shall be tamed or deterred other than applying
punitive regulations. Some criminals may need rehabilitation and treatment other than
punishment.

Psychology of the Court shall explore the right language of law and court for forensic
psychologists. It is the power of the court or judge to assign one to perform some expert
investigations and come up with scientific report on a particular offence. It is also in this sense
that the court can reconstruct the genesis and causality of a criminal offence. For example, use
of DNA tests to know the offender or use of eye witness and forensic testimonies in Court. The
psychology of the court therefore, explains areas that cover the mind, memory and will. Justice
cannot ignore human behaviour in determining its outcome in the most accurate way possible.
Lawyers and judges are not trained in forensic psychology and their main point of reference is
the law other than psychology. But the forensic psychology shall only abet the outcome of the
trial but it is not binding. Neither is the court bound by the expert testimony. Today, the use of
science and technology in the work of court is common. The advancement in criminal and civil
procedures take into account factors that go beyond the limits of law. In this case, forensic
psychologist is best placed to be deployed in various needs for the court. Science and
technology have become elements in which the scope of law is interested in.
 Application Social Psychology

1. Social psychology is the application of psychological theory to legal processes. It is

most effective when both psychologists and legal representatives (such as lawyers,
jurors, etc.) trust reliability and validity.

Social Psychology is the application of psychological theory to legal processes. This relatively
wide subfield applies research and theory from many areas of psychology to a wide variety of
contexts. Six categories of application are shown in Table X. Some of these categories fit easily
with standard training in psychology. For example, you are probably more prepared than you
realize to start down a path of conducting particular kinds of assessments and program
evaluation. However, as with many partnerships, the relationship between psychology and the
law is sometimes both intimate and contentious. It is intimate because law and psychology
seem to be working on the same important social problem: individual and social self-regulation
(see Goldstein, 1968). But the relationship between them can become contentious because
their professional cultures often are in conflict. Many of the attitudes, training experiences, and
professional values of lawyers and psychologists simply will not easily fit together.

Psychology and lawyers have similar goals that include gathering evidence that is both reliable
and valid. In addition, both want the best for their clients and both have some interest in
promoting social justice. So it seems as if there ought to be some degree of meaningful overlap
– and there is. However, the points of contention are also fundamental to each discipline.

2. Several case studies in the history of law can be used to see how the application of
psychology to law evolved over time.

Different Philosophies: Advocacy Versus Objectivity Law generally determines what is right by
virtue of precedent, or prior authority; psychology determines what is right by virtue of empirical
observations. Law can only react to and process ongoing events; psychology gets to choose
what it studies. The practice of law is based on advocacy; the practice of psychology requires
objectivity. Consequently, trying to fit psychology into law has often been difficult – and this
tension between psychology and law has been present from their first interactions. Hugo
Münsterberg. The relationship between psychology and the law got off to a shaky start. When
psychologist Hugo Münsterberg published his book On the Witness Stand (1908), he was
hoping to influence the legal system to accept evidence from psychology in the same way it
accepted evidence from other branches of science. He was unsuccessful. Costanzo and Krauss
(2015, p. 2) described the book’s “icy reception from legal scholars.” One reviewer gave it a
“savagely, satirical critique” for Münsterberg’s “exaggerated claims for psychology.” Even worse,
the book was not well received by fellow psychologists.

Louis Brandeis. The next occurrence was more promising. That probably was because a future
Supreme Court justice, Louis Brandeis, understood irrational human psychology better than
Hugo Münsterberg understood the law. Brandeis cited social science as he argued in favor of
improving wages and limiting the workday to 10 hours. The case of Muller v. Oregon (see
Woloch, 1996) involved a woman working long hours in a laundry factory. Brandeis argued from
a social science perspective that excessive work hours produced negative social consequences
such as infant mortality and children harmed by neglect. It was data more typical of sociology
than psychology, but it was a start. In these first two examples, the psychologist (Hugo
Münsterberg) was trying to push psychology’s big ideas through a very small door of legal
acceptance. He was ineffective – maybe even counterproductive. But the lawyer (Louis
Brandeis) was trying to pull something relatively small (some social science data) through that
same small door. His data were specific and limited. He was much more effective – and his
success created opportunities for others.
3. One example of a modern application of psychology to law is in research on false
confessions. For example, a typology by Costanzo and Krauss (2015) identifies four
different reasons people might give false confessions.

The Social Psychology of False Confessions Kelly Michaels, from the chapter’s opening, told
Oprah Winfrey, “I was absolutely terrified because you were completely defenseless . . . you’re
being accused, you’re being attacked, you can’t do anything except say the words, ‘I am
innocent.’” She probably could have received a shorter sentence if she had been willing to plead
guilty. An accused person, whether innocent or guilty, can plead guilty to a lesser crime than the
one they are charged with and receive a lighter sentence. The alternative is to roll the dice and
hope that a jury finds you not guilty. A Confession Does Not Equal Guilt. It is easy to assume
that any confession – even by torture – is an admission of guilt. But there are reasonable
alternative explanations. In the United States, many trials involved Black defendants who had
confessed – but only after being beaten (Kassin, 1997; Kassin & Wrightsman, 1985;
Wrightsman & Kassin, 1993; Wrightsman, Neitzel, & Fortune, 1994). This situation persisted
until Brown v. Mississippi started to alter the legal landscape. In that case, the Supreme Court
ruled that a trial “is a mere pretense” if a conviction has been “obtained by violence.” Jurors tend
to accept confessions as authentic even when the confessions (a) have been discredited; (b)
are ruled inadmissible; and (c) the judge has instructed jurors to disregard the confession
(Kassin & Sukel, 1997; Kassin, Williams, & Saunders, 1990). There is now a rich psychological
research literature about false confessions, when people report doing something they didn’t
really do (see Kassin, 1997, 1998; McCormick, 1992; Wrightsman & Kassin, 1993) and the
various psychological reasons why someone might admit to doing something they never really
did. Costanzo and Krauss (2015, p. 39) organized the literature about false confessions into the
four situations summarized in Table X.

Instrumental, Coerced Confessions. An instrumental confession means that the person has a
reason for confessing. A coerced confession means that it is forced. In criminal cases, the
instrumental, coerced confession is most common. In fact, instrumental coerced confessions
arguably have become the most contentious issue that the American Psychological Association
has faced in several decades. It’s not difficult to understand why a person being tortured would
confess – they want the torture to stop! And that’s why torture is not an effective technique for
getting information. Instrumental, Voluntary Confessions. Instrumental, voluntary confessions
are given for a reason that is typically known only to the person confessing. Costanzo and
Krauss (2015) provided several examples of purposeful, voluntary confessions. A parent might
“take the fall” to protect a child from harm. Someone seeking notoriety might confess to gain
attention. The serial killer Henry Lee Lucas falsely confessed to several murders that he did not
commit in an effort to secure his name and reputation as among the elite killers of all time.
“Peculiar” was how Costanzo and Krauss summarized many of the motives for these voluntary
false confessions. Authentic, Coerced False Confessions. In contrast with instrumental
confessions, authentic confessions occur when the person honestly believes they committed the
crime in question – even when they didn’t. For example, Clifton Lawson admitted to a brutal
murder on camera and gave details that could only be known by someone who had been there
(Kassin & Wrightsman, 2012). But Lawson had a very low IQ and was anxious; he was simply
telling his interrogators wanted he believed they wanted him to say. And the details of the
murder? He had learned them during the long hours sitting in the police station, listening to the
officers as they discussed the case. He barely avoided conviction and seemed confused about
whether he had actually committed the crime. This confession can be considered coerced
because it never would have happened if Lawson had been treated more fairly and with more
respect. Authentic, Voluntary False Confessions. These cases generally involve someone with
mental illness or severe psychological pressure, suffering from a delusion. Someone really
believes that he or she committed a crime and confesses to something that he or she did not
do. The (unverified) story of Himmler’s missing pipe suggests that innocent people being
punished may come to believe that they must have done something wrong. The Nazi leader had
lost his favorite pipe during a tour of a concentration camp. Six people confessed to stealing it
before he discovered it in his own vehicle.

4. Another application of psychology to law is research on eyewitness testimony

and the misinformation effect, which occurs when memories are changed based
on exposure to post-event incorrect information or leading questions.

The Social Psychology of Eyewitness Testimony If you are ever a juror on a case with an
eyewitness, you need to be extremely cautious. The problem is that memory is malleable – and
that means that it can be manipulated. The misinformation effect occurs when exposure to false
information or leading questions about an event leads to errors in recall of the original event.
Most research on how eyewitnesses fall victim to the misinformation effect is based on the
construction hypothesis, the idea that memories are not just sitting in our heads, ready to be
accessed like computer files. Instead, they are constructed as needed at the time we’re asked
to use them – and they are subject to bias, stereotypes, probabilities, and wishes (Loftus, 1975;
Loftus & Zanni, 1975). Loftus (1975) demonstrated how easily memories could be pushed
around by small influences in how a question was worded. She had participants view a one-
minute film of a multi-car accident and then write out a brief description of what they had just
witnessed. The crash itself lasted only four seconds. The experimenters then asked participants
a series of questions about the accident and found that the participants’ confidence in their
observations was influenced by tiny details. For example, Loftus changed the way the questions
were worded changed participants’ memories. For example, the survey asked some
participants, “Did you see a broken headlight?” and other participants, “Did you see the broken
headlight?” The word “the” in the second version is a presupposition, wording that assumes
something (here, the participants could infer that there was a broken headlight – and if they had
been paying attention, they should say “yes” to this question). In reality, there was not a broken
headlight – but participants who received the presupposition version of the question were
significantly more likely to say “yes.” In other versions of this experiment, Loftus (1975, p. 562)
focused on leading questions by emphasizing that, “Our concern is not on the effect of the
wording of a question on its answer, but rather the answers to other questions asked some time
afterward.” For example, early on in the survey participants received, Loftus asked people
either: (1) How fast was Car A going when it ran the stop sign? (2) How fast was Car A going
when it turned right?

The critical question was not how fast the car was going, but whether or not they believed that
they had witnessed seeing a stop sign. Later in the survey, everyone was asked whether they
saw a stop sign. Importantly, no stop sign existed in the actual event – but when people had
been subtly introduced to the idea of a stop sign in an earlier question, 55% now said yes, they
had seen a stop sign. In contrast, only 35% of people who had been asked about the car turning
right reported seeing a stop sign. People now remembered false things about what they had
witnessed simply because of the process of being asked leading questions. The most famous
version of this experiment was included in a 1974 report by Loftus and Palmer. They showed
people a car accident and then asked half of the participants each of these questions: (1) About
how fast were the cars going when they smashed into each other? (2) About how fast were the
cars going when they bumped into each other? As you would expect, the word “smashed”
elicited higher speed estimates. But the more interesting finding was that one week later,
everyone was asked whether they had witnessed broken glass. Even though there had not
been any broken glass, broken glass seemed plausible as a result of a car accident, especially
one with “smashing” cars – so people who had received that question a week earlier were now
more likely to invent a memory of broken glass. The participants in these studies had their
memories manipulated by researchers asking leading questions – and the “eyewitnesses” had
no idea that their memories had been altered. They were probably being honest when they
remembered what they thought they saw. Consider the implications of this research on how
real-life eyewitnesses might change their memories based on questions they receive from the
police, from lawyers, or even from their own family members who ask about what happened.
These participants, acting as witnesses, had constructed plausible memories and then
convinced themselves that they were telling “the truth, the whole truth, and nothing but the
truth.” But they were wrong.

Social psychology plays a role in the justice system. In a way, the social
psychology influences the jury decision making.

The jury selection entails a very rigorous process of selecting persons of utmost
integrity and irrevocable rationale for rendering independent and sober
determinations. Nonetheless, as social psychologists assert the process of jury
decision-making is one that is significantly affected by the social interactions of
the jury with either themselves or the society.