Law and Human Behavior, Vol. 23, No.

3, 1999

What Is Forensic Psychology, Anyway?

John C. Brigham'

The issue of how "forensicpsychology"is definedhas taken on a new urgencyin

the contextof an applicationto have forensic psychology designateda "specialty"
by the AmericanPsychologicalAssociation. To provide a historicalperspective,I
brieflyreviewearlyattemptsto applypsychologicalconceptsto legalissues,beginning
with the McNaughtentrial in Englandin 1843. I then reviewcurrentconceptualiza-
tions of forensicpsychology,whichhave eithera broadfocus on all psychology-law
interactionsor focus more narrowlyon clinical applicationsto the legal system.
Potential advantagesand disadvantagesof each conceptualizationare briefly dis-
cussed.After touchingupon the major differencesin the "cultures"of psychology
and of law, I discuss three law-relatedareas of contemporarycontroversy:use of
clinically based evidence in the courtroom,"recovered"memoriesof child abuse,
and the use of the criteria-basedcontent analysis techniqueto evaluatechildren's
claimsof sexualabuse.Issuesconcerningthe educationand trainingof psychology-
lawscholarsandpractitionersarebrieflysurveyed.I concludethata broadconceptual-
izationof forensicpsychologyis importantin termsof relevantethicalstandards,but
that a more narrowdistinctionthatdifferentiatesbetweencliniciansand researchers
or legal scholarsalso is useful.

"Whatis forensicpsychology,anyway?"I have heard this plaintivequestionmany

timesover the pastfew years,askedby bewilderedundergraduatestudents,graduate
students,and fellow professionals.Indeed, I have asked myself the same question,
and I have never been able to come up with an entirely satisfactoryanswer.This
vexing questionis not simplyof arcaneacademicrelevance.Recentlythe American
PsychologicalAssociation (APA) opened the gates for the certificationof new
"specialties"in psychology,and "forensicpsychology"is one specialtythat will be
considered. The specialty designation issue has engendered heated and lengthy
debate among many membersof the AmericanPsychology-LawSociety (AP-LS)
aboutwhetheror not AP-LS shouldbe an activeparticipantin the specialtyapplica-
tion process. Much of this debate has been centered aroundthe basic question of
what is, and is not, "forensicpsychology."There seems to be general agreement

'Department of Psychology, Florida State University, Tallahassee, Florida 32306-1270 (e-mail: brigham@
psy.fsu.edu).
273
0147-7307/99/0600-0273$16.00/1 ? 1999 American Psychology-Law Society/Division 41 of the American Psychology Association
274 Brigham

thatforensicpsychologyinvolvesthe interactionof psychologyandthe legal process

(indeed,that'swhatthe dictionarysays),but beyond this generalconceptualization,
things become murky.
I will attempt to shed some light on this contentious issue, with particular
attention to the perspective of AP-LS. I will begin by briefly discussingseveral
importantmilestones in the intersectionof psychology and law over the past 150
years.Thiswill be followedby an analysisof the waysin which"forensicpsychology"
has been definedby contemporaryprofessionals.I will then turnto a brief analysis
of problematicissues in the interface of psychology and law, after which I will
discussthree law-relatedareasin psychologyin whichcontroversyhas been particu-
larly salient. The first issue is a general one-the use (or rejection) of clinical/
practice-orientedand of research-baseddata in the courtroom.The remainingtwo
areas pertain to allegationsof child sexual abuse: the heated psycholegaldebate
on "recoveredmemories"of childhoodsexual abuse (as representedby the report
of the APA WorkingGroup on Investigationof Memories of ChildhoodAbuse),
and the validity of the criterion-basedcontent analysis (CBCA) technique that is
intended to assess whether or not a child's allegation of sexual abuse is truthful.
Finally, I will touch upon some issues concerningthe education and training of
future psychology-lawscholarsand practitioners.

PSYCHOLOGYAND LAW: HISTORICALHIGHLIGHTS

In 1843 Daniel McNaughten(or M'Naghten),a woodturnerand shopkeeper

from Glasgow, Scotland, attempted to assassinateBritish Prime MinisterRobert
Peel. Instead,he mistakenlyshot and killed the PrimeMinister'ssecretary,Edward
Drummond.In his only publicstatementabouthis motives,McNaughtensaid,"The
Tories in my native city have compelled me to do this. They follow, persecuteme
wherever I go and have entirely destroyed my peace of mind. They followed me
to France,into Scotland,and all over England.In fact they follow me whereverI
go. I cannot sleep nor get no rest from them. I shall never be the man I was. I used
to have good health and strength,but I have not now" (quoted in Moran,1981, p.
10). McNaughten'sstatementformed the basis for an insanitydefense at his trial.
The concept of an insanitydefense was not new to the Britishlegal or medical
communities.One well-knownpreviouscase involvedJamesHadfield,who in 1800
had attemptedto assassinateKing George III. Hadfield,who had suffered a head
wound while fightingthe French6 years earlier,was found not guilty by reason of
insanity.Hadfield'sdefense attorney arguedsuccessfullythat one did not have to
be a raging"wildbeast,"totallyout of contactwith reality(as hadbeen the standard
up to then), to be consideredinsane.
When arrested,McNaughtenhad in his pocket a deposit slip for 750 pounds,
a huge sum for a man in his position. These funds were used to hire what might
be called the firstlegal defense "DreamTeam," 150 yearsbefore the 0. J. Simpson
murdertrial.McNaughtenwas defendedby four barristers;they callednine medical
expertswho testifiedthat he was insane or "partiallyinsane."The prosecutiondid
not attemptto counterthe defense'smedicaltestimonyandthe prosecutorwithdrew
What is ForensicPsychology,Anyway? 275

the Crown'scase againstMcNaughtenafter the medical testimonyhad been given.

Not surprisingly,the jury quickly came to a verdict (in less than 2 min!) of not
guilty by reason of insanity(Finkel, 1988).
Queen Victoria, who had herself been shot at by an assassin 3 years earlier,
was not amused, and neither was the House of Lords, which discussedthe issue
further. The eventual result was the "McNaughtenrule" as established by the
House of Lords, which specified that, "To establish a defense on the ground of
insanityit must be clearlyproved that, at the time of committingthe act, the party
accused was laboringunder such a defect of reason, from disease of the mind, as
not to know the nature and qualityof the act he was doing, or if he did know it,
that he did not know he was doing what was wrong" (Finkel, 1988, p. 21). This
"McNaughtenrule" remainsthe standardfor defininginsanityin about half of the
U.S. states.
A fascinatingsidelight to this case concerns the chaotic political situation of
the day and the mysterious750 pound note. Where did a lowly shopkeeper get
such a huge sum of money? Apparently,neither the defense nor the prosecution
was overly curious at the time. Much later, Moran (1981, p. 4) suggestedthat the
verdictwas mainlythe resultof politicalconsiderations,ratherthan McNaughten's
mental state, contrary to the court's stated basis for the decision. McNaughten
was not insane, Moran asserted. Given the great political turmoil of the times in
McNaughten'shome area (riots, general unrest and political intrigue,Tory spies
and agentsthroughoutEnglandand Scotland),and McNaughten'sknown statusas
an oratorand antigovernmentsympathizer,McNaughten'sstatementmay have had
the ringof truthto it. Finkel (1988,p. 18) suggested,"Perhapshe was strikingback,
defendinghimselfagainsta seriesof escalatingharassmentsthatmight,if unstopped,
lead to his own murder?Was it an act of self-defense?A much-provokedreaction?
Or was the unexplained750 pound note a paymentfor a politicalassassinationthat
simply did in the wrong man?" How ironic if this landmarkinsanityverdict was
based upon a false premise!
The early years of the twentieth century saw several significantattempts to
inject the young discipline of psychology into the legal system (Table 1). Two
pioneeringpsychologistswithvery differentperspectives,SigmundFreudand Hugo
Munsterberg(neitherof whom was shy about assertingthe value and applicability
of his nascent field), argued that psychology, even in its then early state, had
important applicationsfor the law. In a 1906 speech to Austrian judges, Freud
(1906/1959)assertedthatpsychologywasveryrelevantto theirjobs.Freudsuggested
that proceduresadaptedfrom psychoanalysis,especiallythe word associationtech-
nique,could establisha "newmethodof investigation,the aim of whichis to compel
the accused person himself to establish his own guilt or innocence by objective
signs" (p. 103). Freud suggestedfurtherthat, "The task of the therapist... is the
same as that of the examiningmagistrate.We have to uncoverthe hiddenpsychical
material;and in order to do this we have invented a numberof detective devices,
some of which it seems that you gentlemen of the law are now about to copy from
us" (p. 108). Freud's optimism about the eagerness with which the law would
embracepsychologicalprinciplesand methods was not borne out, however.
In his controversialbook, On the witnessstand,whichwas actuallya collection
276 Brigham

Table 1. Some LandmarkDates in the Studyof Law and Psychology

1843 Daniel McNaughten(M'Naghten)is found not guiltyby reason of insanity;nine medical
expertstestify on his behalf
1906 In a speech to AustrianJudges,SigmundFreudsuggeststhat psychologyhas important
applicationsfor their field
1908 In Mullerv. Oregon,attorneyLouis Brandeissubmitsa brief that includesempiricalre-
searchresultsrelatingto the issue at hand (workinghoursfor women)
1908 PsychologistHugo Munsterberg'sOn the witnessstandis published
1909 Legal scholarJohn H. WigmoresatirizesMunsterberg'sclaimsin a law review article
1909-18 Guy Whipplepublishesa series of articlesin PsychologicalBulletinextendingEuropean
research(e.g., Stern,Binet) on observation,memory,and witnesstestimony
1954 The "SocialScience Brief', writtenby psychologistsKennethClark,Isidor Chein, and
StuartCook and signed by 35 social scientists,is cited in a footnote of the momentous
Brown vs. Board of Education decision outlawing school segregation.
1968-69 The AmericanPsychology-LawSociety is founded
1971 The Programin Law and Social Science is establishedat NSF
1974 Firstjoint-degreepsychology-lawprogramis established(Universityof Nebraska)
1976 "Psychologyand the law" is firstreviewed(by J. L. Tapp) in the AnnualReviewof Psy-
chology.
1977 Law and HumanBehaviorbegins publicationas the AP-LSjournal
1980-81 APA's Division 41, Psychologyand Law, is established
1984 AP-LS mergeswith Division 41 of APA
1991 SpecialtyGuidelinesfor ForensicPsychologistsare approved
1995 Psychology, Public Policy, and Law begins publication as an APA journal

of previously published magazine articles, Munsterberg (1908) argued in strong

terms that lawyers should pay close attention to psychology. Munsterberg's argu-
ments that psychology had much to offer the legal system and the legal system's
generally negative reaction to this assertion illustrate an often acrimonious debate
between psychologists and the legal community that continued intermittently for
the rest of the century. Munsterberg, a Harvard professor, had emigrated from
Germany in 1892 at the invitation of William James and became the second president
of the APA a decade later. Munsterberg had an arrogant manner and often adopted
a pugnacious, somewhat sensationalized, self-promoting stand in his writings. As
illustrated in Table 2, he asserted that "the lawyer alone is obdurate" in failing to
recognize the importance of applied psychology.
Munsterberg's arguments were so strong that they provoked a scathing response
from legal scholar John Wigmore (1909), who created "transcripts" of a mythical
libel trial in which Prof. Munsterberg was sued for libel by the legal field for his
assertions, and was found guilty of claiming more than he could offer. The plaintiffs'
lawyer, Mr. Tyro, criticized the lack of relevant research publications available
(none had yet been published in English when Munsterberg's book was published),
and noted that eminent European psychologists such as William Stern had cautioned
against overzealous application of psychological findings. In 1906, Stern had written,
"It is not yet time to speak of the practical use of this method; neither too great
optimism nor too great skepticism is fitting. Thus far it has not yet passed beyond
the laboratory stage. An extensive series of purely methodological work will be
required before it can be thought of for application to the larger field of practice
... It is still premature to discuss its forensic use" (quoted in Wigmore, 1909, p.
Whatis ForensicPsychology,Anyway? 277

Table 2. How to Alienate the Legal Establishment:Some Quotationsfrom PsychologistHugo Mun-

sterberg's1908 book, On the witnessstand
My only purposeis to turn the attentionof serious men to an absurdlyneglectedfield which de-
mandsthe full attentionof the social community.(p. 12)
The time for such appliedpsychologyis surelynear ... the lawyeralone is obdurate.(pp. 9-10)
The lawyerand the judge and the jurymanare sure that they do not need the experimentalpsy-
chologist.They do not wish to see that in this field preeminentlyappliedexperimentalpsychology
has made strongstrides ... They go on thinkingthat their legal instinctand their commonsense sup-
plies them with all that is needed and somewhatmore;and if the time is ever to come when the ju-
rist is to show some concessionto the spiritof modernpsychology,publicopinionwill have to exert
some pressure.(pp. 10-11)
The courtswill have to learn sooner or later, that the individualdifferencesof men can be
tested today by the methodsof experimentalpsychology,far beyond anythingwhichcommonsense
and social experiencesuggest.(p. 63)
It is surprisingand seems unjustifiablethat lawyersand laymenalike should not have given any
attention, so far, to the ... many .... methods of the psychological laboratory-methods in the
study of memoryand attention,feeling and will, perceptionand judgment,suggestionand emotion.
In every one of these fields,the psychologicalexperimentcould be made helpfulto the purposesof
court and law. (p. 76)

414). Mr. Tyro accused Prof. Munsterbergof committing"the whimsicalmistake

of bearingtestimonyagainstour innocent profession... for neglectingto use new
and 'exact'methodswhichwere and are so little 'exact'and so incapableof forensic
use that even their well-wishersconfess that thousandsof experimentsand years
of researchwill be required before they will be practicable,if ever" (Wigmore,
1909, p. 415).
It should be noted that Wigmorecriticizedhis own field as well. In his article
the trial judge, after receivingthe jury's verdict in favor of the plaintiffs,pointed
out that, "No country in the world was probably so far behind in the scientific
study of the criminallaw as affected by the contributorysciences of sociology,
anthropology,psychology,and medicine.In no [other]countryhad the legal profes-
sion taken so little interest in findingout or using what those other sciences were
doing" (p. 433). Mr. Tyro expressedthe desire that "theirwhole professionwould
expect and hope to go forwardhereafterwith the other profession[psychology]in
joint endeavor to fruitfulends. They would put aside mutual distrustand public
fault-finding."He urgedthe "friendlyand energeticallianceof psychologyand law,
in the noble cause of justice" (p. 432).
Many years later, Bersoff (in press) suggested that Munsterberg'swork was
so vilified by legal scholars that it almost irreparablydamaged early attempts to
apply the behavioralsciences to the law. Elsewhere, Munsterberg'sattempt was
labeled "a miserable failure" (Bersoff, Goodman-Delahunty, Grisso, Hans,
Poythress,& Roesch, 1997,p. 1301). Although it has been suggested(Kuna, 1978)
that Munsterbergwas more an opportunistthan a trailblazer,Bartol and Bartol
(1987, p. 7) pointed out that nevertheless "he undeniably pushed his reluctant
Americancolleaguesinto the practicallegal arenaand made a seminalcontribution
to forensic psychology."
At about the same time, the firstlegal brief that containedthen-currentsocial
science(extralegal)knowledgeaboutan issuewas submittedto the OregonSupreme
278 Brigham

Courtby attorney(and later U.S. SupremeCourtJustice)LouisBrandeis,in Muller

v. Oregon (1908). The brief arguedthat Oregon'sstatute limitingwomen to 10-hr
workdaysshould be upheld because social science knowledge showed that longer
workdays would be deleterious to women's health and well-being. The court's
decision upheld the position taken in the brief. (Subsequently,such briefs have
been called "Brandeisbriefs.")However, this brief did not instantlystart a trend,
as presentingextralegalinformationto the courts did not become common until
the late 1930s (Hafemeister& Melton, 1987).
Probablythe most famous Brandeisbrief was the "SocialScience Statement"
submittedto the U.S. SupremeCourt in the landmark1954 case, Brown v. Board
of Education,that outlawed school segregation. Written by social psychologists
Isidor Chein, Kenneth Clark, and Stuart Cook, and signed by 35 eminent social
scientists (Allport et al., 1953), the brief summarizedresearch on the effects of
segregation on the self-esteem of Black children.The brief stated that research
demonstratedthat school segregationproducedlow self-esteem and was harmful
to Black children.The brief was cited in a footnote of the momentous decision,
and social scientists continue to argue to this day about the accuracywith which
the research results were portrayed,and also about whether the brief played a
significantrole in the Court's decision-makingor was merely added as "window
dressing" to the decision (e.g., Cook, 1984, 1985; Gerard, 1983; Stephan, 1978;
Tomkins & Oursland, 1991). Recently, Jackson (1998) provided an interesting,
detailedaccountof the geneses of the Statementandthe political,legal, andscientific
issues that surroundedit. The Mullerand Brown cases are probablythe two most
famous historicalexamples of using social science data as social authority(Mona-
han & Walker,1988)in orderto create or changea legal rule (Ogloff & Finkelman,
1988).Brownwas the firstapplicationof socialscienceto attack,ratherthansupport,
the actions of the state (Hafemeister& Melton, 1987).
Widespreadprofessionalrecognitionthat "psychologyand law"was an impor-
tant area of inquirygained momentumin the 1960s and 1970s, as shown by the
foundingof the American Psychology-LawSociety in 1968-69, the establishment
of the Programin Law and Social Science at the National Science Foundationin
1971,and the initiationof the AP-LS-sponsoredjournal,Law and HumanBehavior,
in 1977 (Table 1).
Where does the AmericanPsychology-LawSociety stand today? In 1998, the
AP-LS had over 2,100 membersand another 600 student members.About 8% of
AP-LS membersdid not belong to the APA. Interestingly,while the regularAP-
LS membershipis predominantlymale (68%), the large majorityof the student
members(71%)are women,suggestingthatthe genderratioof memberswill change
dramaticallyin subsequent years. Despite ongoing effects to increase the ethnic
diversity of the organization,the vast majority of members (93%) and student
members (89%) are White. Most AP-LS members who are also APA members
describedtheir major area of interest as clinical psychology(60.5%).Other areas
representedincludedcounselingpsychology(7%),social psychology(4%),and law
(2%).As one might expect from these figures,other APA divisionsto which AP-
LS/APA membersbelonged tended to be the clinicallyoriented ones: Division 42,
Psychologistsin IndependentPractice(23%),Division 12, Clinical(22%),Division
What is ForensicPsychology,Anyway? 279

40, ClinicalNeuropsychology(16%),and Division 29, Psychotherapy(14%).Other

APA divisionsthatwere somewhatpopularwithAP-LS/APAmembersareDivision
9, SPSSI (8%),Division 8, Personalityand Social Psychology(6.5%),and Division
37, Child,Youth, and Family Services (6%).

CURRENT CONCEPTUALIZATIONSOF "FORENSICPSYCHOLOGY"

If AP-LS memberswere directly asked, "Are you a forensic psychologist?,"

many would say "yes," some might say "no," and a substantialportion might
respond, "I don't know" or "It depends on what you mean." If we look at how
forensic psychologyhas been defined in the professionalliterature,there appear
to be two generaldefinitions:a broaddefinitionthat equates "forensicpsychology"
with "psychologyand law," and a more narrowdefinitionthat limits forensic psy-
chology to clinical/practiceissues.
The broad definition is contained in the Specialty Guidelines for Forensic
Psychologists,created by an AP-LS committee and endorsed by the AP-LS in a
membershipvote (Committee on Ethical Guidelines for Forensic Psychologists,
1991).The Guidelinesdefinethe field as covering"allformsof professionalconduct
when acting,with definableforeknowledge,as a psychologicalexpert on explicitly
psychological issues in direct assistance to courts, parties to legal proceedings,
correctionaland forensic mental health facilities,and administrative,judicial,and
legislativeagenciesactingin a judicialcapacity"(Committeeon EthicalGuidelines,
1991,p. 657). In a similarvein, the AmericanBoard of ForensicPsychologyon its
website in 1998gave a broaddefinition:"The applicationof the science and profes-
sion of law to questions and issues relating to psychology and the legal system."
In the Handbookof forensicpsychology,Bartol and Bartol (1987,p. 3) stated, "We
view forensicpsychologybroadly,as both (1) the researchendeavorthat examines
aspects of human behavior directly related to the legal process ... and (2) the
professionalpracticeof psychologywithin, or in consultationwith, a legal system
that embracesboth civil and criminallaw."
Others have stressedthe clinicalaspects.Roesch (in press) noted that, "Most
psychologistsdefine the area more narrowlyto refer to clinicalpsychologistswho
are engaged in clinical practice within the legal system." And the AP-LS's own
web site on graduateprogramsin 1998endorseda perspectiveseeminglyat variance
with the AP-LS SpecialtyGuidelines:"Forensicpsychologyis usually thought of
as clinicalpsychologyand law."
Anotherway to assesswhat "forensicpsychology"meansis to see whatforensic
psychologistsare tryingto learn.Examinationof the 26 workshopsfor professionals
offered by the American Academy of Forensic Psychologyfrom November 1998
to May 1999indicatesthat the topics are mostlyclinicalones. By my roughcategori-
zation, about 75% of the workshops appear clinical in nature (e.g., assessment;
custody evaluations;mental disability;child sexual abuse evaluations),while the
remaining25%(e.g., experttestimony;ethicalissues;juryselection) appearrelevant
to several subfields.The roster of workshopsoffered by the AAFP, then, appears
to supporta "mostlyclinical"pictureof forensicpsychology.(Of course, it should
280 Brigham

be noted thatthe developmentof workshopsmaybe drivenin partby state licensure

policies, as well as by conceptualissues.)
Does it reallymatterhow this area is defined?I thinkit does. Firstof all, many
professionalsare currentlyleft in "definitionallimbo." As a case in point, I am a
social psychologistwho carriesout researchon eyewitnessmemoryand I occasion-
ally deliver expert testimony in court on this issue. If asked in court, "Are you a
forensic psychologist?,"my most accurate current response would seem to be,
"Well, it depends...." And, in my experience,judges hate responses of that sort,
which they see as unnecessarilyvague or evasive.
But beyond problems of individuals'professional identity crises, the issue
becamemoresalientin the late 1990swhenthe APA Committeefor the Recognition
of Specialtiesand Proficienciesin ProfessionalPsychology(CRSPPP)opened the
door to the submissionof petitions for areas to be certifiedas specialtiesor profi-
ciencies. The AmericanAcademy of ForensicPsychology(AAFP) decided that it
would create a petition to establisha Specialtyin Forensic Psychologyand asked
the AP-LS (some of whose members also belong to AAFP) to join them in this
effort.Centralto this effort,of course,is how "forensicpsychology"is to be defined.
Although APA stressed that the specialty and proficiencydesignationswere to
be used for evaluation and development of training programs,and not for the
credentialingof individuals,the concern persists that, somewhere down the road,
such designationswill become a crucial part of the credentialingprocess. If that
becomes the case, then this definitionalissue may play a critical future role for
psychologists,clinicians and nonclinicians,who seek to play a role in the legal
process.
A broad definition of forensic psychologywould include not only clinicians,
but also other psychologists(social, developmental,cognitive, experimental,etc.)
who may consult with attorneysor deliver expert testimony.What are the advan-
tages of this broad conceptualization?First, a broad definition might promote
coherence and growthwithin the general field of psychologyand law. In addition,
it might facilitate the development of strong, broad graduatetrainingprograms.
Furthermore,it would be consistent with the Specialty Guidelines for Forensic
Psychologistsand with the definitionput forth by the American Board of Foren-
sic Psychology.
But there are also potential drawbacksto a broad definition;placing clinical
practitionersand nonclinicalresearchersinto the same categorycan be problematic.
The trainingof cliniciansdiffersfromthat of nonclinicians(e.g., predoctoralintern-
ships), and there are state licensingrequirementsfor cliniciansthat do not apply
to nonclinicians.The clinician/nonclinician"schism"has bedeviled psychologyfor
almost its whole history. A "forensic"trainingprogramthat attempted to train
both cliniciansand nonclinicianswould be difficultto implement.It is difficultto
envision a trainingprogramthat would instill expertisein all of the relevantareas:
clinicalpractice,social psychology,cognitivepsychology,and so forth.
A narrow (clinical) definition of "forensic psychology" has its own set of
advantagesand disadvantages.On the plus side, it would allow for a more clearly
specified trainingfocus (clinical) and would possibly make the boundariesof the
subareamore easily understoodby the courts.Further,designationas a specialist
What is ForensicPsychology,Anyway? 281

is most relevantto those whose practiceis regulatedby state licensure(i.e., clinical

forensic practitioners).The narrow definitionwould be consistent with licensure
and many trainingissues.
On the other hand, the narrow conceptualizationcould be divisive for our
field. It might exacerbatetensions between cliniciansand nonclinicians,tensions
that are sometimesevident within the AP-LS and that played a criticalrole in the
splittingoff of the AmericanPsychologicalSociety (APS) from the APA a decade
ago. Further,underthis distinction,the courtsmightdecide that only the testimony
of "forensic"(clinical)psychologistsshould be admitted,therebyexcludingpoten-
tially valuablecontributionsthat could be made by nonclinicalpsychologists.One
compromisemightbe to label a specialtyas "clinicalforensic,"therebyrecognizing
that there are othervarietiesof forensicpsychologyavailable(i.e., other approaches
that can providevaluableinputsinto the legal system).This option does not appear
viable, however,because in 1998 the APA Board of Directorsvoted not to permit
the use of the word "clinical"in the title of any new specialty.
Faced with this confusing array of potential costs and rewards,the AP-LS
ExecutiveCommitteestruggledfor 2 yearswith the issue. The AP-LS membership
was given the opportunityvia the spring 1998 newsletter to vote on whether the
AP-LS should get involved in the developmentof a forensicpsychologyspecialty
petition. Only a small numberresponded(N = 66), but the large majorityof these
indicated that AP-LS should not get involved in the development of a specialty
petition, regardlessof whether it suggested a narrowor a broad definitionof the
specialty area. The Executive Committee finally reached a majoritydecision in
August 1998. Recognizing that the movement toward specialty designation for
forensicpsychologywould go forwardwith or withoutthe participationof the AP-
LS, the AP-LS Executive Committeevoted to encouragethe AAFP to pursuethe
narrowdefinitionof forensicpsychology,with the designationof "clinicalforensic,"
if possible.
Whilethe predominantapproachhasbeen to dichotomizepsychology-lawareas
as clinicaland nonclinical,anotherpossibleconceptualizationhas been suggestedby
Heilbrun(1998). He suggestedthat law and psychologyinterest areas be trichoto-
mized into clinical (encompassingclinical,counseling,and school psychology),ex-
perimental(social,developmental,cognitive,humanexperimentalpsychology),and
legal (trainingin law as well as in behavioralscience or medicine). Professionals
in legal psychologywould most likely engage in scholarlyanalysesof mentalhealth
law and psychologicallyoriented legal movements such as psychologicaljurispru-
dence (e.g., Melton, 1992) and therapeuticjurisprudence(e.g., Wexler,1995).Their
appliedwork would center aroundpolicy analysesand legislativeconsultation(Ta-
ble 3). A numberof prominentmembersof the AmericanPsychology-LawSociety
could probablyfit into this third area, legal psychology.

LAW AND PSYCHOLOGY:DIFFERENT CULTURES

We have seen that in the earlydays of psychology,when an interestin applying

psychologicalconcepts and researchmethodologyto legal issues arose (e.g., Mun-
282 Brigham

Table 3. Law and PsychologyInterestAreas (with AssociatedTraining)

Experimental:
Clinical: Social,cognitive, Legal:
Clinical,school, humanexperimental, Trainingin law and in be-
counseling developmental havioralscience
psychology psychology or medicine
Research/ 1. Assessmenttools 1. Memory 1. Mentalhealth law
scholarship 2. Interventioneffec- 2. Perception 2. Other law relevantto
tiveness 3. Childdevelopment health and science
3. Epidemiologyof rele- 4. Groupdecision 3. Legal movements(law
vant behaviors(e.g., vio- making and social science,
lence, sexual offending) therapeuticjurispru-
and disorders dence, psychological
jurisprudence)
Applied 1. Forensicassessment 1. Consultationre 1. Policy and legislative
2. Treatmentin legal jury selection consultation
context 2. Consultationre liti- 2. Model law devel-
3. Integrationof science gation strategy opment
(idiographic,nomethe- 3. Consultationre
tic, reasoning)into "state of science"
practice 4. Experttestimony
re "state of
science"
Source:K. Heilbrun,personalcommunication,1998.

sterberg,1908),this interfacewas viewed with skepticismor overt hostilityby many

in the legal profession(e.g., Wigmore,1909). As one who has attemptedto deliver
expert testimonyin cases involvingdisputedeyewitnessevidence, I can reportwith
great personal assurancethat this skepticismand hostility towardpsychologistsis
alive and well in the courts to this day.
One difficultyis that many lawyers and judges seem unable or unwillingto
understandor acceptthe distinctionbetween nomothetic,ideographic,case-specific
clinicaltestimonyand research-based"stateof the science"experttestimony.Years
ago, Kalven (1958, p. 94) noted that the law seemed basically ambivalentabout
the relevance and value of social science. Kalven suggested that the 1954 Brown
v. Board of Educationdecision was "undoubtedly...a high point in the periodic
flirtationbetween law and social science." Three decades later, Bersoff (1986, p.
155) asserted that "if the relationshipbetween psychologistsand the courts were
to be examined by a Freudian,the analyst would no doubt conclude that it is a
highlyneurotic,conflict-riddenneuroticaffair.(I stress affairbecause it is certainly
no marriage.)"
It often appearsthat the courts will embracesocial science researchwhen its
resultshappento supportthe outcome that the justices alreadywish to reach (e.g.,
the 1954Brown v. Board of Educationdecision that outlawedschool segregation),
but will ignore or disparageequally good researchwhen the resultsdo not support
the desired decision. For example, in Rock v. Arkansas (1987) the U.S. Supreme
Court upheld the admissibilityof "hypnoticallyrefreshed"testimony under some
conditions,despitean amicusbriefsubmittedby the AmericanPsychologicalAssoci-
ation that described research findings concerning the potentially misleading or
Whatis ForensicPsychology,Anyway? 283

erroneousnatureof suchtestimony.In Lockhartv. McCree(1987)the Courtupheld

the so-called "death qualification"process for selecting jurors in death-penalty
cases, wherein potential jurors are automaticallyexcluded from considerationif
they have beliefs againstthe deathpenaltythatmightinterferewith theirwillingness
to vote guilty or to impose the death penalty. This rulingwas reached despite an
APA amicusbrief that summarizedsome 15 empiricalstudies that found that this
procedurewouldlikelyresultin juriesthatwerebiasedin a proprosecutiondirection
(see Bersoff, 1987, and Thompson, 1989, for further discussionof this issue). In
McCleskeyv. Kemp (1986), the Court chose to discount a large-scale multiple
regressionstudy that had shown that the death penalty in Georgiawas dispropor-
tionally imposed upon defendantswho had killed Whites, especially Blacks who
had killed Whites.
But there have been a few instancesin whichan appealscourtdecisionseemed
to follow the reasoningof an amicusbrief submittedby the APA. For example,in
the cases of Hawthornev. Florida (1985) and New Jersey v. Kelly (1984), appeals
courts seemed to supportthe psychologicalconcept of the "batteredwoman syn-
drome."Tremper(1987) discussedthese and other cases in whichthe courtsappar-
ently listened to what psychologyhad to say.
It is importantto keep in mind, however, that even when the courts fail to
follow the course of action recommendedin an APA-sponsoredamicusbrief, this
does not necessarilymean that it has disregardedall of the social fact information
containedin the brief.Grissoand Saks(1991)suggestedthat even in some Supreme
Courtcases in whichthe majorityreacheda decisioncounterto that recommended
in an APA brief, the justices did not appear to find real fault with the empirical
dataandseemed to acceptAPA's viewson the empiricalquestions.But the decisions
were made on otherconstitutionalgrounds.They proposedthat, "Ineffect, psychol-
ogy's input may compel judges to act like judges, stating clearly the fundamental
values and normativepremiseson which their decisions are grounded,ratherthan
hiding behind empirical errors or uncertainties"(Grisso & Saks, 1991, p. 208).
Further,they asserted,the value of psychologyin the legal systemis best evaluated
not in terms of which side wins the case, but of the extent to which the scientific
evidence is given careful considerationby the court.
This conflict and ambivalencemay be a reflection of the fact that, as Saks
(1989, pp. 1115-1116) observed, "lawyers and social scientists come from two
differentcultures... law studentsare typicallysmartpeople who do not like math.
The quantitative,empiricalsocial sciences exist in anotherworld.... The problem
is to bridge these two cultures and I have little expectation that it will happen
soon." Several"cultural"dimensionson whichpsychologyand law differhave been
enumeratedby Haney (1980) and others. To summarizethese differencesbriefly,
psychologytends to be creative,empirical,experimental,descriptive,theory-driven,
probabilistic,and academic.Law, in contrast,is more conservative,authoritative,
adversarial,prescriptive,case-specific,and reactive.It emphasizescertaintyand is
less academic.Given these basic differencesin approach,training,and philosophy,
it is perhapssmallwonderthat psychologistsand lawyersoften have great difficulty
respectingor even understandingeach other.
Is a successfulrapprochementbetween psychologyandlaw possible?A leading
284 Brigham

psycholegal scholar, Bersoff (1995, p. 55), expressed considerable uncertainty. On

the plus side, Bersoff noted the healthy state of the AP-LS, with its large and
active student section, and its excellent journal, Law and Human Behavior, and
the continued growth in the popularity of the biennial AP-LS conference. The
establishment in 1995 of the APA journal, Psychology, Public Policy, and Law
(Table 1), is another indication that, as Melton (1987, p. 681) had suggested almost
a decade earlier, "Psycholegal studies may fairly be termed as psychology's new
growth industry." Undergraduate courses in psychology and law became increas-
ingly popular during this period, and a number of psychologists were hired as faculty
in law schools.
But many thorny issues remain. At the undergraduate level, there appears to
be little consensus as to what topics encompass forensic psychology or psychology
and law. Chapter titles of four popular psychology and law textbooks are summa-
rized in Table 4. There are four substantive topics that merit chapter status in three
of the four texts: theories of criminal behavior, eyewitnesses, jury decision making,
and victims. Other chapter titles vary widely. Some of this lack of consensus may
be more apparent than real, as the same theoretical or empirical material may be
covered under different labels in the different texts, but nevertheless it appears
that overall consensus is not great.
At a conceptual level, disagreement remains about core issues such as the
extent of the relationship between violence and mental illness, and the validity of
recovered memories (an issue I will address below). Also, as Bersoff et al. (1997,
p. 1302) wryly noted, "New, often unvalidated 'psychological' syndromes seem to
proliferate every day." Training of professionals is a complex issue. It has been

Table 4. Psychologyand Law: CentralTopics. Commonalitiesin ChapterTitles Across

Four ContemporaryPsychologyand Law Textbooks
Numberof books with this chapter
Psychologyand Law (Introduction/Overview) 4
CriminalBehavior(Theoriesof/Psychologyof) 3
Eyewitnesses 3
JuryDecision Making 3
Victims 3
Competence/Insanity 2
FamilyLaw 2
Police/LawEnforcementIssues 2
Events from Arrest to Trial 2
The Trial Process 2
Sentencing 2
Corrections 2
Other chaptertopics include:CrimePatterns;CrimeInterventionand Prevention;Le-
gality,Morality,and Justice;Rightsof Victimsand the Accused;Civil Issues;Psycholog-
ical Testingand Assessment;Civil Commitment;Psychologyof Evidence;Rightsof Spe-
cial Groups;The Role of Procedure;Lawyers;PretrialIssues;ChildWitnessesand
ExpertTestimony;Presentationof ScientificEvidence;Psychologyand the Courts;The
Psychologyof Law;Social Science and the Death Penalty
Sources:Bartol & Bartol (1994); Foley (1993); Horowitz,Willging,& Bordens (1998);
Wrightsman,Nietzel, & Fortune(1998).
What is ForensicPsychology,Anyway? 285

assertedthat competentpsycholegalscholarsmust be "trilingual,"conversantwith

scientificpsychology, the law, and the psychology-law interface, a most difficult
traininggoal.
Within psychology,should the primaryfocus of forensic trainingin graduate
school be to educate applied professionals to perform clinical functions, or to
educate social scientists whose primaryfocus is research,with practicaltraining
perhaps postponed until the postdoctoral years (Bersoff, in press)? Further, at
what point can these professionalsgain sufficientexposureto the law, psycholegal
concepts, and the legal "culture"?A recent survey of students in psychology-
law graduateprograms(Baldwin & Watts, 1996) found that their most prevalent
complaintwas inadequateexposure to the law.
These issues were the focus of a NationalConferenceon Educationand Train-
ing Law and Psychology,popularlyknown as the VillanovaConference,in 1995.
in
The conferenceparticipantsidentifiedfive areas in which it was seen as crucialfor
the psycholegal scholar to be educated. The first was substantivepsychology, a
core knowledgeof basic areas of psychology:developmental,social, cognitive,and
abnormalpsychology,and an understandingof importantethical and professional
issues. The second area was knowledgeof researchdesignand statistics,both in the
laboratoryand in the field. Third was basic legal knowledge,the ability to "think
like a lawyer," learning the basic tools of law, the sources of the law, and the
core substanceof the law itself (e.g., civil, criminal).The fourth area was labeled
substantivelegalpsychology,whichinvolves an understandingof how social science
evidence is used in law. The final area was called scholarshipand training,and
includesthe experienceof conductingoriginaldissertationresearch.The conference
participantsnoted that it would be especially helpful if additionalopportunities
were providedfor studentsto obtain appropriatereal-lifeexperiencein legislative,
administrative,and judicial settings. The problem of how to educate psycholegal
scholars in all of these areas at the predoctoralor postdoctorallevels remains a
focus of active discussionand controversy(e.g., see Bersoff et al., 1997).

BATTLES WITHIN PSYCHOLOGY:THE VALUE AND USE OF

RESEARCH AND CLINICALLYBASED DATA IN COURT

NoncliniciansVersus Clinicians
Almost since its inception,the field of psychologyhas been riven by tensions
between practicingclinicalpsychologists,on one hand, and researchpsychologists,
on the other. This mutualdistrustand disrespectreached a head in the late 1980s,
when the AmericanPsychologicalSociety (APS) was formedby researchpsycholo-
gists, many of whom were unhappywith what they saw as the increasinglyclinical,
practice-orientedorientation of the APA. Social/personalitypsychologistRobyn
Dawes's (1994) book, House of cards: Psychology and psychotherapy built on myth,
strongly criticized the foundations of many aspects of clinical practice. In 1997,
developmental psychologist MargaretHagen attacked the testimony of clinical
expert witnesses in her book, Whoresof the court,which was subtitled, Thefraud
286 Brigham

of psychiatrictestimonyand the rapeof Americanjustice.Hagen attackedclinicians

with a vengeance; a few illustrativequotes from early in the book are given in
Table 5. Many psychologists,cliniciansand noncliniciansalike, were outragedby
the vehemence of her attacks.But as social psychologistSaul Kassin observed in
a review, her basic point of view was not new: "Eightyyears ago this book could
have been authoredby John Watsonabout SigmundFreud"(Kassin,1997,p. 322).
Some reviewers (e.g., Fulero, 1997; Kassin, 1997) observed that there was some
truth in what Hagen had to say: some expertwitnesses are arrogant,indifferentto
research findings,prone to making overblown claims, and apparentlywilling to
modifytheir testimonyto serve political/socialor financialmotives.Donald Bersoff
(in press), formerAPA counsel, opined that, "In our courtroom,psychologyis still
seen as a mysteriousinexact discipline.. .populatedby hired guns who will switch
sides and profferopinions for the right fee and the greatest notoriety."
Willattackssuchas Hagen'simprovethis situation?A totallyone-sideddiatribe
promotes disrespect for the entire field of psychology and is likely to keep all
psychology, good and bad indiscriminately,out of court. Hagen overdramatized
the impact of clinical psychologistsin the courtroomand obscuredsome possibly
validpointswith "anecdotes,errors,flamingovergeneralizations,and inflammatory
charges"(Fulero, 1997,p. 10). Hagen urged us to "throwthe expertsout," but did
not provide suggestionson what to do next. Ratherthan takingthe draconianstep
of excluding all psychologicalexpert witnesses, Fulero (1997) suggested that the
courts make better use of the time-tested legal techniques for evaluating expert
evidence such as cross-examinationand opposing expert witnesses.
It's a shame, in my opinion, that Hagen's anger apparentlydrove her to such
an extreme position, because the validity of some of her points is likely to be
obscured by the vehemence of her attacks. (Hagen, 1997, p. xiii, noted that she
became motivatedto write the book after watchingher brotherspend over $90,000
to defend himself,successfully,in a $3.4 millionlawsuitcharginghim with "psycho-

Table 5. PsychologistVersusPsychologist:Attacksfrom Within

I began to take a closer look at the activitiesof my clinicalcolleaguesin the world of law. I
found that they were everywherewith their fingersin every half-bakedlegal pie cooked up by the
wildest of imaginations.(Hagen, 1997,p. xiii)
Psychology'stakeoverof our legal system representsnot an advanceinto new but clearly
chartedareas of science but a terrifyingretreatinto mysticismand romanticism,a massivesuspen-
sion of disbeliefpropelledby propaganda.Thanksto the willingnessof judges and juries to believe
psychobabblewith scientificfoundationsequal to horoscopecharts,babblepuffed about by psycho-
logical professionalswith impressivecredentials,what we've got now are thousandsof self-styled
soul doctorsrun amok in our courts,drunkwith power, bedazzledby spectacularfees for the no-
heavy-liftingjob of shootingoff their mouthsabout any psychologicaltopic that sneaks a toe into a
courtroom.(Hagen, 1997,p. 4)
For all forensicpsychologistswho work one side of the courtroomor the other, the job is lucra-
tive ... But we also must wake up to the fact that the present and growingdominanceof psychology
in the courtroomposes a graverdangerto society than simple monetarycorruption.Muchof the
presentmarriageof psychologyand the law has been cementedby a virtuallyimpregnablearrogance
and institutionalizedin both law and legal practice,and that is a scarythoughtindeed. Both the pub-
lic and the practitionersthemselveshave been seducedinto believingthe pseudo-experts'bunkum,
have managedto get that bunkumwritteninto law, and have effected a wide acceptanceof a crucial
judicialrole for the bunkumartistsas well. (Hagen, 1997,p. 11)
What is ForensicPsychology,Anyway? 287

logical injury."The plaintiffused a great deal of clinical expert testimony against

him.) Nevertheless,it seems to me that Hagen's diatribemay end up servingsome
good purposeif it stimulatesincreasedscrutinyof questionabletheory and expert
testimonyin areas where good theory or empiricalsupportis lacking.

Research and TestimonyAbout "RecoveredMemories"

Probablyno issue electrifiedpsychologyin the 1990sas did the appearanceof
long-forgottenmemories of childhood sexual abuse that were apparently"recov-
ered" in adulthood,often duringpsychotherapy.On one side of the debate, some
clinicallyorientedwritersarguedthat people do not invent memoriesof childhood
sexual abuse and, hence, these "recovered"memories should be assumed to be
accurate.The book Courageto heal, by Bass and Davis (1988), was often cited as
the "bible" of the "recoveredmemory movement." On the other side, the False
Memory SyndromeFoundationwas establishedin 1992 by persons who said they
had been falsely accused of a crime, usually sexual abuse of a child, where the
accusationswere based on the alleged victim's "recovered memories." As this
controversyraged throughthe 1990s in the popularpress, the researchliterature,
and the courtroom,the APA established a Working Group on Investigationof
Memoriesof ChildhoodAbuse. The WorkingGroupconsistedof three prominent
clinicians(sometimestermed "scientistpractitioners")and three prominentmem-
ory researchers.The group's task was to evaluate carefully current theory and
researchand develop a report on the "state of the field." Alas, despite 2 years of
intense work and interaction,the WorkingGroup was unable to agree on a single
report,but insteadproducedtwo reports,prefacedby a generalintroductorystate-
ment. The consensualconclusionsthat the whole committeewas able to agree on,
andthe remainingpointsof disagreement,as specifiedin the introductorystatement,
are summarizedin Table 6 (APA WorkingGroup, 1996).
I have told studentsin my psychologyand law classesthat I found this outcome
profoundlydiscouraging:six highly intelligent, well-informedscientists could not

Table 6. APA WorkingGroupon Investigationof Memoriesof ChildAbuse

ConsensualConclusions
1. Childsexual abuse is a complex and pervasiveproblem
2. Most people who were sexuallyabusedas childrenrememberall or part of what happenedto
them
3. It is possible to forget memoriesof abuse for a long time, then remember
4. It is also possible to constructconvincingpseudomemoriesfor events that never occurred
5. Gaps remainin our knowledgeabout processesthat lead to accurateand inaccuraterecollections
of childhoodabuse
RemainingPoints of Disagreement
1. The constructivenatureof memory;accuracyof memoryover time
2. The mechanismsunderlyingdelayedremembering
3. The presumed"special"statusof memoriesof traumaticevents
4. The relevanceof basic memoryand developmentalresearchliterature
5. The "rulesof evidence"for testing hypotheses
6. The frequencywith whichpseudomemoriesare createdby suggestion
7. The ease with whichreal memoriescan be distinguishedfrom pseudomemories
288 Brigham

come to any meaningfulagreement,except on the most basic issues. It appeared

that, over a 2-year period, nobody was able to convince anybody of anything!I
decided to contact each of the six WorkingGroup membersdirectlyto see if they
could shed any light on this apparent impasse. I was gratifiedthat all six were
willing to talk with me about their experiences. One question I had: Are any of
the "consensualconclusions"(Table 6) ones that you would not have agreed with
before the WorkingGroup was formed? Only one person said yes; this Working
Group member would not have endorsed point 4, the possibilityof constructing
convincingpseudomemoriesfor events that never occurred,before the Working
Group began its task. Everyone else said that they had alreadyagreed with all of
those points before the WorkingGroup began its work.
Was the impasseinevitable?Was my discouragementjustified?In discussions
with me, the WorkingGroup membersthought not, for the most part. One issue
concernedthe compositionof the groupitself. In its eagernessto select knowledge-
able members, the APA Board of Directors selected people who had publicly
establishedpositions (via books, researchpapers, conference presentations,etc.)
on either side of the debate. At least some of these previouslyestablishedpositions
were seen by others as extreme. In retrospect,it is easy to see that such people
might not be good candidatesfor compromiseand mutual attitude change. If we
view this as an intergroupcontact situation,researchfindings(e.g., Allport, 1954;
Cook, 1978; Hewstone, 1996; Pettigrew, 1986, 1998) have shown that beneficial
attitudechangeis most likely when the participantsfrom one groupdo not embody
the negative stereotypesthat membersof the other groupmay hold. One estimate
on the participants'public position can be gleaned from a recent book in which
Brown, Scheflin,and Hammond(1998) attemptedto classifythe positionstaken in
the academicwritingsof psychologistsactive in this area. They classifiedwritings
into severalcategories,rangingfroman extreme"traumaaccuracy"position(belief
in the accuracyof recovered memories of traumaticevents) to an extreme "false
memory"position (belief that recovered memories are not likely to be accurate).
The writingsof fourof the six WorkingGroupmemberswere amongthose classified,
one each as follows: moderate traumaaccuracyposition;balanced but off-center
toward the trauma accuracyposition; balanced but off-center toward the false
memoryposition;and extremefalse-memoryposition.As far as the WorkingGroup
is concerned,it seems likely that the relativelyextreme positions expressedby (or
attributedto) the group members may have reinforcedthe negative stereotypes
("They are extreme;they are intransigent,"etc.) that membersof the other camp
may have held.
It is perhapspropheticthat in its initial interactions,the WorkingGroup was
unable to agree on a chairperson,and instead settled for two cochairs,one from
each camp.Interestingly,and perhapsnot coincidentally,the two psychologistswho
had not published enough in this area to be included in the Brown et al. (1998)
classificationwere the two chosen as cochairsby the WorkingGroup. Would the
WorkingGroup have had an easier, and perhapsmore productive,time if at least
some memberswith more neutral orientationshad been selected? Perhapsso. It
is interestingthat a similargroupin GreatBritain,the BritishPsychologicalSociety
WorkingGroup on Recovered Memories,was able to come to a more informative
group consensus (Courtois,1997).
What is ForensicPsychology,Anyway? 289

A second major issue was the strong impact of the different preexisting perspec-
tives of the clinical and nonclinical members, what one member called "two different
world views and epistemologies" (see Table 7). This group member went on, "And
after a while, it became evident that we [clinicians and nonclinicians] differed
substantially in our understanding of research methodology and of the 'rules of
evidence' that are necessary to evaluate hypotheses in both laboratory and clinical
contexts. There were times when it was difficult to believe that all six of us held
Ph.D. degrees in the same parent discipline!" Another group member stressed that
psychology should stop teaching students to think in a dichotomized (e.g., research
vs. practice) manner. It appears that the Working Group became a microcosm for
this enduring schism (e.g., note points 4 and 5 in the Remaining Points of Disagree-
ment in Table 6).
Did the Working Group make a positive contribution? Most of the participants
seemed to think that it did. The dichotomized report accurately represented the
"state of the art" in this area, one participant suggested. Another pointed out that
the final report would have made a contribution if it stimulated informed discussion
and research. I believe that the Working Group's report may have done just that.
As a case in point, a couple of years later the International Society for Traumatic

Table 7. Some Commentsfrom Membersof the APA WorkingGroup on Investigationof Memories

of ChildhoodAbuse
Compositionof the WorkingGroup
"I believe that the WorkingGroupwas miscreatedby the APA Board of Directorsin that it
was polarizedto begin with.... The battle lines were drawn.... This is not the way science is done."
"I think that what happenedon the WorkingGroupwas an anomalycreatedby the playersin-
volved. It was a setup from the first.... So don't use the WorkingGroupas a predictor."
DifferingPerspectives
"The importantpoint I would emphasizeis that the substantivedisagreementsamongthe six of
us were neitherineluctable(as I think I have made clear) nor were they necessarilycounterproduc-
tive from the standpointof science. In science disagreementscan often fuel synthesisand conver-
gence. In this case it did not, but I believe that had more to do with personalitiesthan substance."
"It was a bad day for professionalpsychology-not becausewe differed,but becausewe demon-
stratedso little respectfor each other'sreasoningand evidence and displayeda passionthat effec-
tively ruled out furthercollaboration."
"My bottom line was that I was very disappointedbecausewe were confrontedwith two differ-
ent worldviews and epistemologies.... It wasn'tjust that the cliniciansdifferedfrom the researchers
in what they read, but it seemed as if we were dealingwith two different'waysof knowing."'
"We should stop teachingour studentsto think in this dichotomized[research/practice] manner
about psychology.All of us are doing variationsof science and practiceall the time with differing
emphases.That kind of polarizedthinkingis inculcatedvery young in our students,and then we
model it. We need to stop, now, and ask, rather,what can each learn from the other?"
OverallEvaluationsof the Experience
"I joined the task force with feelings of optimism,albeit cautiousoptimism,but I certainlyleft it
with feelings of distress".
Endingup with two reportsis not necessarilya negativething;it really representsthe 'state of
the art."'
"I thinkwe have achievedgreaterunderstandingin the field of memorythan is reflectedin
those 'consensus'points ... althoughof course we have a great deal more to learn.The activitiesof
the groupdid, however,get me readingarticlesthat I mightnot have otherwisefound."
"It was still a worthwhileexperience."
"Wasit all worthwhile?'No' and 'yes,' with an emphasison the 'yes' ... the final reportof the
WorkingGroupwill representa positive contributionto the recovered/falsememorydebate if it
stimulatesdiscussion-and hopefullyresearch-in both the clinicaland experimentalcommunities."
290 Brigham

Stress Studies (1998) published an informative report on the current scientific

knowledgebase aboutmemoriesof childhoodtrauma,a reportthat appearsto take
into account, and gives serious attention to, both sides of this issue. Christine
Courtois(1997),a formermemberof the WorkingGroup,laterpublishedguidelines
for the treatmentof adults abused or possibly abused as children (see also Enns,
Campbell,Courtois,Gotlieb, Lese, Gilbert, & Forrest, 1998).

ResearchVersus PracticeRevisited:The Criteria-BasedContent Analysis

(CBCA) Technique
As alreadynoted, many writers,from Wigmore(1909) to Hagen (1997), have
been criticalof the ways that psychologicalconceptsand measureshave found their
way into the courtroom,often via expert testimony by clinical practitioners.The
recoveredmemorycontroversy,brieflydescribedabove,providesone contemporary
examplewhereinsome cliniciansand researchershave disagreedvehementlyabout
the validityandrelevanceof a set of concepts(e.g., repression,recoveredmemories)
andthe researchthat has purportedto investigatethese concepts.A secondcontem-
porary example of this debate, not as generally well known as the one above,
involvesthe criteria-basedcontent analysis(CBCA) technique.I choose to describe
this issue here because it also centers aroundthe validityof reportsof sexual abuse
of children, this time focusing on children'scontemporaneousreports of abuse,
rather than delayed memories of past abuse. The CBCA technique is alleged to
discriminatebetween truthful and untruthfulreports of sexual abuse made by
children.Given the status of child sexual abuse as a major societal problem, any
techniquethat could accuratelyassess the truthfulnessof a child's report of abuse
wouldbe exceedinglyvaluableandwelcomedby the legal system.It is not surprising
that the technique received considerable attention from psychologistsin North
America when it became known to them.
The CBCA technique was originallydeveloped by clinical psychologistUdo
Undeutsch in the 1950s in Germany.Undeutsch reasoned that children'sreports
of experiencedevents would differ systematicallyfrom reportsof invented events.
He identified18 or 19 characteristicsthat, if presentin a child'sverbalreport,were
believed to be indicativeof truthfulness(Undeutsch,1982).These includedgeneral
characteristicssuch as logical structureand recall of many details, and specific
attributessuch as contextualembedding,reports of specific actions, reproduction
of speech, reports of unexpectedcomplications,reportsof unusualor superfluous
details, recall of the child's subjectiveexperience, accuratereport of details (e.g.,
about sexual behavior)that are misunderstoodby the child, and attributionsmade
about the alleged perpetrator'smental state. Finally, motivation-relatedcontents
seen as indicativeof truth included makingspontaneouscorrectionsor additions,
admittinglack of memoryor knowledge,raisingdoubtsabout one's own testimony,
self-deprecation,and makingexcusesfor, or failingto blame,the allegedperpetrator
(Raskin& Esplin,1991a).Undeutsch(1982)proposedthatthe more of these criteria
that are present in a child's statement about alleged sexual abuse, the greater is
the likelihood that the child is being truthful.
In the past decade, some psychologistshave pressed for the use of analyses
What is ForensicPsychology,Anyway? 291

based on the CBCA techniquein Americanand Canadiancourtsas partof a more

general approachlabeled statementvalidityanalysis(e.g., Raskin & Esplin, 1991a,
1991b; Zaparik, Yuille, & Taylor, 1995). In a law review article, Honts (1994)
arguedthat "scientificresearchsays that [CBCA]is a reliableand valid technique"
(p. 894); he furtherasserted that, "all of the accuracyestimatesproducedto date
suggest that the CBCA ... has an accuracyrate higher than most other forensic
evidence acceptedby the courts"(p. 897). Experttestimonythat evaluatesa child's
truthfulnessbased at least in part on the CBCA technique has been admittedin
North Americancourts in recent years.
But is the CBCA techniqueas valid as Honts (1994) and other supportershave
argued?Does the CBCA evaluativetechnique have an accuracyrate higher than
most other types of forensic evidence (e.g., crime scene analyses,fingerprintevi-
dence, DNA analyses)? Or is this another area in which an evaluativetechnique
is enthusiasticallyendorsed by some psychologicalpractitionerswho are eager to
put it to use in the courtroom,even though the scientificfoundationfor its validity
is weak or nonexistent?Hagen (1997) stronglyalleged that such occurrencesare
commonplace,althoughshe did not mention the CBCA technique.
It appearsto me that concerns are legitimate in this instance. CharlesRuby
and I reviewed the researchliteratureand concluded that Honts' (1994) glowing
accolades were "prematureand unwarranted"(Ruby & Brigham, 1997, p. 729).
Empiricalsupportfor the validityof the techniquewas spottyat best. Onlya handful
of studies, several of them unpublished,have found evidence that the technique
can distinguishtruthfulfrom untruthfulstatements.Further,we identified16 issues
thatneed to be resolvedbeforeit couldbe concludedthatthe techniqueis sufficiently
reliableand validto provideinformationthat is of probativevalue in a sexual abuse
case. These issues relate generally to (1) characteristicsof the CBCA technique
itself, (2) possible differencesdue to characteristicsof the person whose statement
is analyzed,and (3) possible culturaldifferences.
Detailed analysesof these issues are beyond the scope of this paper,but I will
provide a few examples of problemsthat are unresolved.Concerningthe scoring
of statements,evidence of sufficientreliabilityfor ratingsof criteriapresenceis not
strong (e.g., Anson, Golding, & Gully, 1993), and there has been great variance
acrossstudiesin the numberof criteriathat are actuallyscored,rangingfrom2 to 18.
The number of CBCA criteria that are present in a child's statement may
depend on manyfactors.For example,the use of particularinterviewingtechniques
may alter the content of a child's statement and change the number of CBCA
criteriaidentified.Additionally,there is greatvariationbetween criteria,and across
studies,as to whichcriteriaappearmost useful as indicatorsof accuracy(see Table
3 in Ruby & Brigham, 1997). Further, there is little consensus or guidance on
"decisionrules,"such as how many criteriamust be present for a statementto be
classifiedas truthful(Yuille, 1990;Zapamik et al., 1995). Studies show that prior
use of the cognitive interview technique (Geiselman & Padilla, 1988) can affect
subsequent CBCA scores (Koehnken, Schimossek, Ascherman, & Hofer, 1995;
Steller & Wellershaus,1995).
There is also ambiguityabout the group to whom the techniqueis applicable.
Proponentsof the technique have said that it should only be used with children,
292 Brigham

and only concerningallegationsof sexual abuse. But as Berlinerand Conte (1993)

pointed out, if the techniqueis a valid way of assessingtruthfulness,why should it
be limited to childrenand to allegationsof sexual abuse?A couple of studies have
found that the techniquemightbe diagnosticfor adults'statementsaboutnonabuse
situations(Koehnkenet al., 1995;Landry& Brigham,1992),but other studieshave
not found it effective with adults (e.g., Ruby & Brigham,1998)).
The age of the child whose statement is being evaluated is another issue.
Researchindicatesthatyoungerchildren'sdescriptionsof events tend to be shorter,
less internallyconsistent,and less likely to mention internalstates (e.g., Fivush &
Shukat, 1995;Poole & Lindsay, 1995). Hence, younger children'sstatements are
likely to contain fewer CBCA criteria.While this issue has been noted by some
CBCA proponents,no guidelinesexist as to revised decision rules or weightingof
criteriathat take the child's age into account.
Furtherempiricalwork is also needed on the effect of motivation to lie, as
well as the impactof being coached to lie (e.g., Poole & Lindsay,1995). And what
of cases whereina childis not deliberatelylying,but insteadis reportinga distorted
memorythat the child believes is true? Studies have shown that when questioned
repeatedly about a (nonexperienced)event, many childrenreport having experi-
enced the event. Can the CBCA techniqueidentifythese mistakenmemories?The
preliminaryanswer appearsto be "no." Ceci, Huffman,Smith, and Loftus (1994)
found that expertstrainedin the CBCA techniquecould not distinguishchildren's
reportsof mistakenmemoriesfrom their accuratememoryreports.
A final issue concernsethnicity.The CBCA techniquewas developed in Ger-
many and virtually all studies of the technique have analyzed the statements of
White North Americansor Europeans.There is abundantevidence that different
ethnic groupshave quite differentexpressivestyles (e.g., Hall, 1959;Kim & Gudy-
kunst, 1988). Hence, a text-analysismethod developed from the analysesof verbal
behavior in one culture (Eurocentric/White)might not be applicableto another
culture (Afrocentric/Black,Hispanic, Asian, etc.). Some empiricalevidence but-
tressing this point comes from a study by Ruby and Brigham (1998), who found
that the pattern of criteria that proved somewhat diagnostic of truthfulnessof
statementsmade by White Americanswas very differentfrom the patternthat was
related to the truthfulnessof statements made by African-Americans.Further,
the technique as a whole did not differentiatesignificantlybetween truthfuland
untruthfulstatements for speakers of either race. To further complicate things,
"intergroupinteractionanxiety"(Stephan& Stephan,1985)may occurwhen mem-
bers of two ethnic groups interact (e.g., when an African-Americanchild is ques-
tioned by a White interviewer).This anxiety might significantlyaffect the content
of a child's statement,influencingthe CBCA criteriain unknownways.
Taken together, these factors suggest that psychologicalexpert testimony on
a child's truthfulness,when based upon the CBCA technique,is vulnerableto the
criticismslevied by Hagen (1997) and many others. It seems to me that we do
ourselves a disserviceas a field, and provide a disserviceto the legal system and
society as a whole, when we encourageexpert testimony that is based upon tech-
niques of dubious or unproven value. Certainly,there is great temptation (and
possible financialreward)to introducetestimony based upon an evaluative tech-
What is ForensicPsychology,Anyway? 293

nique that one believes in (even in the absence of strongempiricalvalidation).But

if we continue to champion techniques or positions of unprovenvalidity, we lay
ourselvesopen to destructive(thoughwarranted)criticismsfromresearchpsycholo-
gists, legal scholars,lawyers,and judges.
The examplesabove illustratesome of the potentiallydivisiveissues that result
from differences in trainingand perspective that exist between the broad fields
of psychology and law, and between different subfieldswithin psychology itself.
Participantsat the Villanova Conference proposed that more inclusive training
of "legal psychologists,"which would make them familiarwith the content and
perspectivesof both psychologyand law, could bridge the gap, producingscholars
who can make seminalcontributionsto the psychology/lawarea.With this in mind,
I will brieflyrevisit the issue of trainingbelow.

WHERE DO WE GO FROM HERE?

TrainingForensic Psychologists
Differences in the way that forensic psychologyis defined are also apparent
in the way that graduate trainingprogramsare set up. These issues have been
covered in detail elsewhere (e.g., Bersoff et al., 1997;Melton, 1987;Ogloff, Tom-
kins, & Bersoff, 1996;Roesch, Grisso, & Poythress,1986;Wexler, 1990) and will
only be touched on briefly here. As of 1998 there were at least five joint degree
programsin the United States:Ph.D./J.D.programsat the Universityof Nebraska
(the oldest program),the Universityof Arizona,StanfordUniversity,andAllegheny
Universityof the Health Sciences/VillanovaLaw School, as well as a Psy.D./J.D.
programat WidenerUniversity(Bersoff et al., 1997). It was noted at the Villanova
Conferencethat there had been little regularcommunicationbetween the directors
of the programs.Bersoff and his colleagues (1997) pointed out that, "althoughone
can denominate the benefits and costs of joint-degree training,its worth is still
unproven(p. 1308)."While such programsmay representthe most direct route to
achieving the integrationof psychology and law (Tomkins & Ogloff, 1990), the
programsrequiremassiveamountsof time, effort, and tuitioncosts (to two schools
within the university).
A numberof doctoral programsnow offer trainingin "forensicpsychology,"
"psychologyand law,"or "socialscience andlaw."The latterconcentrations(which
I'll call "legalpsychology")may be located withinsocial psychologyprograms(e.g.,
SaintLouis University,Universityof Kansas,Universityof Nevada-Reno)or stand
alone as a legalpsychologyprogramincorporatingsocial,cognitive,andI/O psychol-
ogy (FloridaInternationalUniversity) or a psychologyand law track (e.g., Simon
FraserUniversity).Graduateconcentrationslabeled as "forensic,"in contrast,typi-
cally are within clinicalprograms(e.g., Universityof Alabama;Universityof Vir-
ginia). A survey of AP-LS graduatestudent members (Baldwin & Watts, 1996)
found that 48%of those who replied were in clinicalprograms,18%were in social
psychologyprograms,10%were in joint-degreeprograms,and 8%were in applied
graduateprograms.
294 Brigham

As noted earlier,the VillanovaConferenceparticipantsenumeratedfive areas

that doctoral-levellegal psychology programsshould cover. They proposed that
graduatesof such programsshould be able to applysocial science and legal knowl-
edge to legalproblems.Suchbroad-basedtrainingseems to presupposethe presence
of several faculty memberswith varied knowledge.But, as Bersoff et al. (1997, p.
1304) noted, it is a "cold fact that most departmentshave only one, if any, faculty
member interested in social science applicationsto law." Nevertheless,there is a
growingneed for well-trainedpsycholegalscholarsfor policydevelopment,training
of law enforcementpersonnel,lawyers,and judges, work on legislativecommittee
staffs, and involvementin various phases of the legal process (e.g., jury selection,
expert testimony,trial consultation,dispute resolution).
Forensic psychologyconcentrationshoused in clinical graduateprogramsare
presumablyorientedtowardapplyingthe scientist/practitioner model to psycholegal
issues. For clinical students, the predoctoralinternshipmay offer an avenue to
enhanced forensic training.The Villanova Conference working group surveyed
clinical internshipprogramsand found that slightly over half (54%)of those that
repliedofferedmajorforensicrotations.The sites primarilyofferedinpatientexperi-
ences with adult criminalforensic populations.The working group was able to
identify only a few (10 or 11) postdoctoralforensic trainingprograms,but noted
that these programsshould be oriented toward producingthe future leaders in
(clinical)forensic psychology.

So, What is ForensicPsychology?

It appearsto me there are two forensicpsychologies:the broad,legal-psychol-
ogy forensic psychology,and the more focused, clinical-forensicpsychology.At a
conceptual level, the broad definition seems most logical, as represented in the
Specialty Guidelines for Forensic Psychologistscreated by an AP-LS committee,
and the definitionput forth by the AmericanAcademy of ForensicPsychology.It
is understandablethat the authorsof the SpecialtyGuidelineswanted the ethical
guidelinesto apply to the whole range of psychologistswho might engage in law-
relatedactivities.But this comprehensivedefinition,while it matchesthe dictionary
definitionof "forensic,"is problematicbecauseit pools cliniciansand nonclinicians,
who have differenttraininghistories and are sometimes at loggerheadswith each
other on majorpsycholegalissues (Table 5). Further,the comprehensivedefinition
is at variance with the way that attorneys and the courts seem to see forensic
psychology (i.e., as clinical psychology).Hence, it appearsnecessary to maintain
two, or perhapsthree, categories.Referringback to Heilbrun'strichotomyof law
and psychologyinterest areas presented in Table 3, we can describe three areas:
clinicalforensic (what Heilbruncalls clinical);experimental(researcherswho con-
sultwith attorneysand/orgive experttestimonyin theirresearchspecialty),andlegal
(those with trainingin law andsocialsciencewho workon broadpsycholegalissues).
Each of these three orientationsis stronglyrepresentedwithinthe membership
of the AmericanPsychology-LawSociety.Differencesin trainingandfocus provide,
I believe, a valuable "spark"to AP-LS programsat the APA and at the biennial
AP-LS convention, and can lead to a broad range of theoretical and research
What is ForensicPsychology,Anyway? 295

perspectives.Some years ago, Michael Saks (1986, p. 279), then editor of the AP-
LS journal, Law and Human Behavior, bemoaned the narrow range of content
areasrepresentedin articlessubmittedto the journal;he entitledhis editorial,"The
law does not live by eyewitnesstestimonyalone." A glance at recent issues of the
journal shows that this admonitionhas been taken to heart and a wide range of
issues and foci (clinical,experimental,legal) have been representedin recent years.
The AmericanPsychology-LawSociety is comprisedof people who represent
all sides of two major schismsthat have long and tumultuoushistories:the legal
field versuspsychology,and clinicalversus nonclinicalpsychology.While we have
not been immuneto the pressuresthat fracturedpsychologya decade ago, I believe
that the active AP-LS members have been particularlysensitive to the need to
avoid destructive"turf wars,"narrow-mindedness,and professionalstereotyping.
This constructiveorientationhas been especiallyvisible, I think, in the hard work
of the programchairsfor the APA conventionsandthe AP-LSbiennialconventions,
who have struggledmightily (and successfully)to develop balanced, stimulating
conference programs.
To returnto my originalquestion about what is forensicpsychology,I believe
that there are two levels of classificationthat yield two sets of definitions.At the
level of ethical guidelines and professionalresponsibility,the broad definitionfits
best. Any psychologist(clinical,social, cognitive, developmental,etc.) who works
within the legal system is a forensic psychologistin this sense, and the same high
ethical and professionalstandardsshould apply to all. When it comes to how the
legal system and the public conceptualizeforensicpsychology,however,there is a
definite clinical flavor. The clinical/nonclinicaldistinctionis a meaningfulone, I
believe. For example, educational,training,and licensingissues that are pertinent
to clinical forensic psychologistsmay be irrelevantor inapplicableto nonclinical
forensicpsychologists.Further,cliniciansandnoncliniciansdifferin theirorientation
to the legal process and in the role that they are likely to play in the courtroom
(e.g., individualassessmentsvs. research-basedsocial fact evidence). So there you
have it-two varietiesof forensicpsychologists,clinicaland nonclinical(who Heil-
brun would subdivide into experimentaland legal psychologists).What is most
important,it seems to me, is that we continue to work together, recognizingthe
differences in training (and often, philosophy) that exist between clinicians and
nonclinicians,and buildingupon our shared respect for creatingvalid knowledge
about humanbehaviorand applyingthat knowledgewithin the legal system. Ours
is a vibrant,exciting field, driven by scholarsand practitionerswho are dedicated
to understandingthe variousinteractionsbetween psychologyand the law, and to
applyingthat knowledgefor the bettermentof humankind.

ACKNOWLEDGMENTS

This paper was delivered as the PresidentialAddress, AmericanPsychology-

LawSociety,at the 106thAnnualConventionof the AmericanPsychologicalAssoci-
ation, San Francisco, August 1998. I would like to express my appreciationto
Donald Bersoff,SolomonFulero,Jane Goodman-Delahunty,KirkHeilbrun,Chris-
296 Brigham

tian Meissner, James Ogloff, Ronald Roesch, Adina Wasserman,and Lawrence

Wrightsman,and to the six membersof the APA WorkingGroup on Investigation
of Memoriesof ChildAbuse:JudithAlpert, LauraBrown,Stephen Ceci, Christine
Courtois, Elizabeth Loftus, and Peter Ornstein, all of whom generously shared
their ideas with me.

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