‘At the end of the day, the clinician is in no different position from members of juries who must seek independent evidence to corroborate the authenticity of witnesses’ evidence … The consequences of drawing premature conclusions, both for the client and significant others in the client's life, are likely to be farreaching and irreversible.’ (Thomson, 1995b:104)

‘Vulnerable witnesses may be the victims of negative ideologies and unhelpful societal assumptions, so that an effective strategy involves challenging the culture as well as the law.’ (Birch, 2000:224)

‘The main challenge for those of us who work with survivors of child sexual assault is to ensure that our practices do not compromise either the legal or therapeutic process. We must be aware of the problems inherent in working with memory and in particular, guard against contaminating the process of recall.’ (Broughton, 1995:95).

Introduction

Psychologists have paid very little attention to the influence of individual differences in personality and their effects on identification (Hosch, 1994:328). Hosch attributes this lack of research to the facts that: (a) psycholegal researchers in the field have a background in social or cognitive psychology; and (b) the acceptance by many psychologists of Wells' (1978) argument and the focusing on system rather than on estimator variables in order to increase the practical usefulness of their work (p. 328). Let us, therefore, take a close look at the empirical literature on witness personality, demographic and other characteristics and their relationship with accuracy of eyewitness memory.

‘Few problems can pose a greater threat to free, democratic societies than that of wrongful conviction – the conviction of an innocent person.’ (Huff et al., 1986)

In a democracy, the presumption of innocence is of paramount importance. Although there is sometimes a natural desire among police officers to seek to prove cases well beyond a reasonable doubt, there is very real need to ensure that such desires do not lead to behaviours that are manifestly unfair and add unjustifiable strength to the prosecution case.’ (McKenzie, 1995)

‘Particularly alarming is the fact that police receive little or no training on lineups and photospreads, there are no rules or laws that prevent constructing and conducting line-ups and photospreads in ways that place an innocent suspect at risk, and courts are relatively insensitive to the ways these subtle variations in line-ups and photospreads have strong effects on the chances of mistaken identification.’ (Wells et al., 1999:72)

‘there are a large number of ways in which even well-intentioned witnesses can make mistakes which could result in the conviction of an innocent person.’ (Ainsworth, 2000a:174)

‘For the criminal justice system, the current findings suggest that police and courts should treat voice identification made by auditory-visual witnesses with caution.’ (Bull and Clifford, 1999)

Introduction

Very often, the identity of the perpetrator of a crime is not an issue or it can be readily established by the prosecution. In such cases, the primary concern of police investigators is to establish the necessary points of proof regarding the charges laid against the defendant.

‘…Scientific truth … must come about by controversy … Without fighting you get science nowhere …’ (Boring, 1963:68).

‘Children have a right to justice and their evidence is essential if society is to protect their interests and deal effectively with those who would harm them.’ (Jack and Yeo, 1992)

‘To permit adult witnesses to relate children's unrecorded hearsay from investigative interviews is to tolerate listener distortion, foster professional ineptitude, and again to frustrate justice.’ (McGough, 1995:385)

‘The demonstrable fact that investigative interviews with young children can be rendered worthless by inept practice should not blind us to the substantial literature demonstrating that reliable information can be elicited from young children who are competently interviewed, however.’ (Lamb et al., 1995:446)

‘ … Despite the rhetoric, consistency in findings is not always present, … in the fields of stress and arousal, suggestibility, and misleading information, … there is scope for methodological developments which could serve to further empower the child within the criminal justice system.’ (Clifford, 2002:334)

Introduction

Psycholegal research into children as witnesses has a history going back to the beginning of the twentieth century (Binet, 1900). Since the 1970s there has been an increasing interest in western countries in victims of crime, especially sexual abuse. Since the 1990s there has been an alarming increase in the number of sex crimes against children that are reported to the police (Sedlak and Broadhurst, 1996; US Bureau of Census, 1994).

The contents of this book show that a great deal has been happening at the interface of psychology and law.

Especially since the 1980s, major advances have been made in our knowledge on a broad range of issues and the influence of psychology and law has been a two-way process. The maturity of legal psychology as a discipline in its own right and its contributions to society, both diverse and significant, are of special interest in view of a number of impediments in the process of bridging the gap between psychology and law. As legal psychology continues to evolve, the indications are that psycholegal researchers are more cognisant than they used to be of the need to use a range of research methods and to conduct research that is ecologically valid. Of course, however forensically relevant research might be, ‘there is always some risk when generalising from scientific studies to real world analogs’ (Bruck and Ceci, 1995:309).

The discussion of empirical studies in the preceding chapters also shows that legal psychology's advances are more evident in some areas than in others and some summits still wait to be conquered. As Kadane (1993) has noted, there is undoubtedly an imbalance in the amount of attention psychologists have paid to different areas within law and legal processes. This imbalance probably reflects the fact that: (a) some issues are more amenable to study by the experimental method (psychologists' preferred method); and (b) the contemporary sociolegal climate in a country is such as to make some research topics the focus of psycholegal researchers' attention.

It is a great pleasure to welcome this second edition of Andreas Kapardis' textbook, Psychology and Law. The first edition rapidly became recognised as a classic and has been widely used in undergraduate and postgraduate courses in legal and forensic psychology. My own students have found it incredibly useful and informative.

This second edition is even better. Although it follows the successful organisation of the first edition, this book has been completely revised and updated, especially the chapters on children as witnesses and on the psychologist as an expert witness. Novel features include margin notes, case studies and revision questions. Like the first edition, this book is scholarly, detailed, wide-ranging and up-to-date, but nevertheless very readable. There is no comparable modern textbook with such an international coverage of research on psychology and law.

The international coverage reflects the fact that Andreas Kapardis is a very international person. He completed Masters and PhD theses under my supervision at Cambridge University about 20 years ago and then taught and carried out research for a long time in Australia. Now he is pioneering research and teaching in legal and forensic psychology in Cyprus. Dr Kapardis is exceptionally knowledgeable about psychology and law throughout the world, as readers of this book will soon discover.

Forensic psychology is expanding very quickly in many different countries and there is an increasing need for trained scholars and practitioners.

‘Appearing as an advocate in court is the most challenging thing a lawyer can do: it is the sharp end of lawyering and it calls not only for courage but a great deal of skill as well.’ (Evans, 1995:vii)

‘the feeling is [among practitioners] that the skills for the job of advocacy bear little or no relation to that knowledge most cherished by the law schools or by the Law Society's examining boards.’ (Mungham and Thomas, 1979:174)

‘Writing in a magazine in January 1889 Oscar Wilde … complained that, with the possible exception of the speeches of barristers, lying as an art had decayed.’ (Barnes, 1994:1)

‘When a court hears two competing accounts about what happened it must choose between them. One account will be more persuasive than the other. But what makes it more persuasive? The facts are very important, though they need to be told in an interesting way, and the witness as storyteller needs to be believable.’ (Selby, 2000:55)

Introduction

Law is a difficult course to get into at most universities. Being a practising lawyer confers social status in many countries and there is a strong tendency internationally to include judges on committees that are entrusted with important tasks in society. Such status seems to be synonymous with being a distinguished trial lawyer, a senior barrister in Great Britain and in the Commonwealth and, especially, becoming one of that elite group of Queen's Counsels who can command impressive fees.

‘A witness to a crime is expected, as a civic duty, to report the crime to the police … At a later date the witness may be asked to give oral evidence in court about what he may have seen, and answer questions during cross-examination by the defence.’ (Home Office, 1998:19)

‘Testimony to personal identity is proverbially fallacious.’ (William James, 1890:97)

‘Although such testimony is frequently challenged, it is still widely assumed to be more reliable than other kinds of evidence. Numerous experiments show, however, that it is remarkably subject to error.’ (Buckhout, 1974:23)

‘Human memory is a fragile and elusive creature. It can be supplemented, partially restructured, or even completely altered by post-event inputs. It is susceptible to the power of a simple word. This is not to imply that all memories are changed and no original memories remain intact.’ (Loftus and Ketcham, 1983:168–9)

‘Nowhere are the problems of generalizability and reliability of research findings more acute than in the study of eyewitnessing.’ (Davies, 1992:265)

‘It is important not to exaggerate the fallibility of human memory. Memory is often wonderfully detailed and accurate.’ (Lindsay and Read, 1994:293)

Introduction

The above quotes reflect the concern over the years with the limitations of eyewitness testimony, the more recent acceptance of the fact that the whole process of observing and recalling faces and events is a complex, interactive and dynamic one and, finally, that we should not overlook the fact that such testimony can be accurate.

‘Sentencing cannot be an exact science; indeed, Lady Wootton likened the sentencer to a small boy adding up his sums but with no one to correct his answer.’ (His Honour Judge P.K. Cooke, OBE, 1987:57)

‘Sentencing is part of a very complex system. Many events and agencies influence the decision, and sentencing can cause anything from a ripple to a tidal wave throughout the system. And so sentencing, in common with other stages in the criminal justice process, cannot be viewed in isolation.’ (Morgan et al., 1987:169)

‘Most judges do not read psychology journals or scholarly books; some do not even read law reviews.’ (Wrightsman, 1999:viii)

Introduction

Judges have been termed ‘the gatekeepers of the legal system’ (Wrightsman, 1999:vii). Since the 1970s the judiciary in western countries has undergone unprecedented expansion in both its size and power. The expanding judicial role is evident in the appointment, training and scrutiny of members of the judiciary (Malleson, 1999). At the same time there has been increasing tension between the requirement of judicial independence and accountability created by the changes that have taken place.

In imposing sentences such as terms of imprisonment, judges and magistrates inevitably make policy and can become prison reformers, for example. At the same time, ‘Trial judges like to think of themselves as autonomous decision-makers whom nobody bosses around’, when, in fact, judges, prosecutors and defence lawyers are interdependent (Jacob, 1997:3); furthermore, ‘the constraints flowing from the organisational context in which judges work affect not only their personal careers but also the distribution of cases by trial courts’ (p. 4).

‘The law is hostage to the knowledge possessed by others; it needs data, good data. It can well do without the biases and prejudices of related disciplines – it has enough of its own to deal with.’ (Allen and Miller, 1995:337)

‘The use of expert witnesses in the courtroom has entered a dynamic era. Over the course of the next decade a great deal is likely to happen.’ (Landsman, 1995:157)

‘Expert witnesses do not just appear out of the blue. They are recommended by a city's “old boy” network over lunches, telephone calls and drinks. Or they are tried out by legal firms and insurance companies and, if successful, put on to their “panels” of suitable experts.’ (Ragg, 1995)

‘Psychology can play a valuable role in the criminal process, even if it must end at the door of the court.’ (Sheldon and McCleod, 1991:820)

‘greater numbers of expert witnesses are being permitted to testify on a broader base of subject matter than has hitherto been permitted.’ (Freckelton and Selby, 2002:12).

Introduction

Experts, in the form of medical doctors, appear to have been first called upon to advise judges at the Old Bailey six hundred years ago, but it was not until around 1620 that a jury was furnished with expert testimony for the first time. By 1721 there was the first challenge to an expert witness (a surgeon) testifying for the prosecution by another expert testifying on behalf of the defendant (Landsman, 1995).

‘Although the roots of law and psychology were planted at the turn of the century, the “tree” has been slow to grow and only has begun to bear fruit recently.’ (Ogloff and Finkelman, 1999:17)

‘In the recent past psychologists’ claims to knowledge and fact finding ability were altogether too forceful, and lawyers’ reluctance to use psychological evidence, insights and sophisticated techniques altogether too irrational.’ (Clifford and Bull, 1978:19)

‘However relevant they may be to each other, the offspring of the relationship between psychology and law is still an infant and doubts are still cast upon its legitimacy.’ (Carson and Bull, 1995a:3)

‘The issues are not the relevance of psychology and law to each other but the extent to which the law and legal system should and are prepared, to embrace psychology and the extent to which psychologists should, and are prepared, to adapt their work to the needs and requirements of the legal system.’ (Carson and Bull, 1995a:4)

Introduction: Development of the Psycholegal Field

The plethora of applications of psychology to law can be differentiated in terms of what has been defined as: (a) ‘psychology in law’; (b) ‘psychology and law’; and (c) ‘psychology of law’. According to Blackburn (1996:6), psychology in law refers to specific applications of psychology within law: such as the reliability of eyewitness testimony, mental state of the defendant, and a parent's suitability for child custody in a divorce case. Psychology and law is used by Blackburn (1996) to denote, for example, psycholegal research into offenders (see Howells and Blackburn, 1995), lawyers, magistrates, judges and jurors.

‘The public tends to forget, but nonetheless understands and will agree with the service that officers are busy people, hard pressed, pressured by limited resources and pressing demands, often reflective of primitive emotions rather than considered reflection. The public, however, entrusts the police service – from top landing to the ‘front line’ – to keep its head and to observe society's moral guidelines to respect the person, to tell the truth and to converse accordingly.’ (Shepherd, 1991b:55)

‘The interviewing or interrogation of suspects is often seen by police officers, especially detectives, as a good way of demonstrating their professional prowess. A great deal of respect will be given to the police officer who is able to persuade a reluctant suspect finally to confess to the crime in question – the more serious the crime, the greater will be the kudos.’ (Ainsworth, 2000a:174)

‘The police uniform can have extraordinary psychological and physical impact. Depending on the background of the citizen, the police uniform can elicit emotions ranging from pride and respect, to fear and anger.’ (Johnson, 2001:28)

Introduction

The domain of policing offers ample opportunity for psychological research. As psychological research is appreciated more by police management and an evaluation component is included more often than it used to be when changes are introduced within police forces, psychologists will come to play a more significant part in contributing to knowledge about, and influencing developments in, a broad range of policing issues.

‘Lies are everywhere. We hear continually about lying in public and private life. Very few people would claim never to have told a lie, and even fewer would say they have never been duped by a liar.’ (Barnes, 1994:1)

‘Human beings hate to be deceived. It makes us feel violated, used and stupid … The intellectual and moral traditions of Western culture have been shaped and driven by an explicit and consistent fear of deception … but … without such lies humanity cannot survive.’ (Rue, 1994:4–5)

‘Not every deception involves emotion, but those who do may cause special problems for the liar. When emotions occur, physiological changes happen automatically without choice or deliberation.’ (Ekman and O'Sullivan, 1989:299)

Introduction

A moment's reflection tells us that deception implies that someone intentionally does or says something in order to induce a false belief in someone else (Ekman, 1985; Miller and Stiff, 1993:16–31; Vrij, 2000:6). Miller and Stiff have argued persuasively that a useful approach to studying deceptive communication is to conceptualise it as a general persuasive strategy, that is, as a means to an end and not an end in itself. Others, however, advocate using a discourse-centred definition rather than the intent criterion (Bavelas et al., 1990). Deception, as old as human existence, is a social phenomenon that permeates human life, irrespective of context, or one's age, gender, education or occupation. The Internet provides endless opportunity for deception.