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Wiley Series in
The Psychology of Crime, Policing and Law

Series Editors

Graham Davies and Ray Bull

University of Leicester, UK

The Wiley Series in the Psychology of Crime, Policing and Law publishes concise and integrative reviews on important emerging areas of contemporary research. The purpose of the series is not merely to present research findings in a clear and readable form, but also to bring out their implications for both practice and policy. In this way, it is hoped the series will not only be useful to psychologists but also to all those concerned with crime detection and prevention, policing, and the judicial process.

For other titles in this series please see www.wiley.com/go/pcpl

Practical Psychology for Forensic Investigations and Prosecutions

Mark R. Kebbell

Griffith University, Australia

Graham M. Davies

University of Leicester, UK

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The Editors would like to dedicate this book to their families.

About the Editors

Mark Kebbell is Associate Professor of Forensic Psychology and the Director of the Forensic Psychology Programme at Griffith University. His expertise and research is in the area of interviewing particularly with regards suspects and vulnerable witnesses. He wrote the guidelines for police officers in England and Wales (with Wagstaff) for the assessment of eyewitness evidence. He has worked on more than 70 criminal cases, principally involving murder or serious sexual assault, and has given expert evidence on numerous occasions including uncontested psychological evidence in an Old Bailey appeal case. Academically, he publishes in international journals and has been awarded a British Academy Postdoctoral Fellowship for Outstanding Younger Scholars.

Graham Davies is Professor of Psychology at the University of Leicester. His main research interests lie in the area of eyewitness testimony in children and adults on which he has co-authored over 100 papers in scientific and professional journals and 6 books. He evaluated the live link and videotaped interview innovations for child witnesses for the Home Office and edited the current official guidance on interviewing: Achieving Best Evidence. He acts as an expert witness in cases involving children’s evidence and is a serving magistrate. He is a past Chair of the Society for Applied Research in Memory and Cognition and the current President of the European Association of Law and Psychology.

About the Contributors

Laurence Alison is Professor of Forensic Psychology and Director of the Centre for Critical Incident Research at the University of Liverpool. His research interests include investigative decision making, police leadership and law enforcement personnel’s use of expert advice. He has published widely on these topics at an international level in a variety of academic and practitioner outlets. He has contributed advice to several major cases in the last 10 years, including rapes, murders, armed robberies and terrorist attacks. He has produced several books on profiling and investigation, most recently as editor of The Forensic Psychologist’s Casebook: Psychological Profiling and Criminal Investigation.

Jennifer Beaudry is a doctoral candidate at the Department of Psychology, Queen’s University under the supervision of Rod Lindsay. Before pursuing graduate studies at Queen’s University she worked as an emergency services child protection worker for the Sudbury Children’s Aid Society. Her main research interests are eyewitness identification evidence, radical lineup procedures and juror decision making. She has co-authored a chapter, entitled “Belief of Eyewitness Identification Evidence”, for the Handbook of Eyewitness Psychology: Memory for People. Her research has been presented at several international conferences, including the American Psychology-Law Society and the Society for Applied Research in Memory and Cognition. She currently holds a Canadian Graduate Scholarship from the Social Sciences and Humanities Research Council.

Ray Bull is Professor of Forensic Psychology and Director of Forensic Psychology at the University of Leicester. His main interests focus on investigative interviewing (e.g. of suspects and witnesses) and witness testimony (e.g. of children and voice identification). His major books include Investigative Interviewing: Psychology and Practice (with Milne), Handbook of Psychology in Legal Contexts (with Carson), Psychology and Law: Truthfulness, Accuracy and Credibility (with Memon and Vrij). He has co-authored numerous articles in research journals. He has been commissioned by government to co-author guidance documents on good practice in interviewing child witnesses, achieving best evidence from vulnerable witnesses and the taking of evidence on commission. He has written expert reports for many dozens of court cases (including Courts of Appeal) and has testified in criminal trials and civil hearings in a number of countries. He recently received the rare honour (for a “civilian”) of a Commendation from the London Metropolitan Police Service for his work on a particular case.

Deborah Davis is an Associate Professor in the Psychology Department of the University of Nevada-Reno. With regards to forensic psychology, her areas of expertise are witness memory, false confessions, issues of sexual consent, rules of evidence and jury research. She has also conducted a variety of research in the areas of social psychology of ageing, and attachment and relationship behaviors, and has written papers concerning research ethics. She was the editor of From the Mind’s Eye, a newsletter designed to report social science research on law and courtroom psychology. She has also been a member of the editorial boards for Representative Research in Social Psychology, the Journal of Experimental Social Psychology, and the Journal of Personality and Social Psychology.

Paul Dupuis is a Psychology Instructor at Red Deer College in Alberta, Canada. He obtained his PhD from Queen’s University. His research interests are in social psychology and eyewitness testimony. He has a particular interest in identification evidence and how lineups are constructed. He has published in this area including a study testing the influence of simultaneous face, body and sequential voice lineups (with Pryke, Lindsay and Dysart) and has demonstrated that multiple identifications (by the same witness) from independent lineups of different features are highly diagnostic of suspect guilt.

Elizabeth Gilchrist is Reader in Forensic Psychology and Director of Forensic Psychology at the University of Kent. Her research interests are in the area of domestic violence and the needs of vulnerable victims, and in criminal justice processes, particularly decision making and in the effectiveness of interventions in the domestic violence arena. Her recent work has included work with women and children who have experienced domestic violence, and a large national study on perpetrators and victim/survivors of domestic violence, which was funded by the Home Office. She is also working on an evaluation of a community-based intervention for domestic violence, funded by the local probation area, and an evaluation of support for victims of sexual offences, funded by the Home Office. She is currently involved in establishing research priorities for the parole board and is developing further work in the area of domestic violence and underlying neural mechanisms, exploring decision making within the parole board and the implications of intimate offending for future risk.

Don Grubin is Professor of Forensic Psychiatry at the University of Newcastle and Honoury Consultant Forensic Psychiatrist at 3 NNNs Trust, St Nicholas Hospital. His research interests are risk assessment and treatment of sex offenders, prison health screening and fitness to plead. His current work focuses on the use of polygraphy in the treatment and supervision of sex offenders and in the treatment of personality disordered prisoners and patients. He is also carrying out a study into the use of SSRI medication in the treatment of sex offenders.

Kevin Howells is Professor of Forensic Clinical Psychology at the University of Nottingham, Head of the Peaks Academic and Research Unit in Nottinghamshire Healthcare Trust and also a member of the Centre for Applied Psychological Research at the University of South Australia. He has been involved in assessment, treatment and research work with offenders in both the United Kingdom and Australia.

Emily Hurren is a PhD candidate within the School of Psychology at Griffith University. Her research interests include child maltreatment, the links between child maltreatment and juvenile offending, sex offending and improving police interviewing of suspected offenders to increase rates of confession. Most recently she has interviewed approximately 60 convicted sex offenders concerning their perceptions of how they were interviewed by the police and how police interviewing of suspects can be improved.

Richard Leo is an Associate Professor of Criminology, Law and Society and an Associate Professor of Psychology and Social Behavior at the University of California, Irvine. He is a leading international authority on police interrogation practices, Miranda requirements, coercive persuasion, false confessions and wrongful convictions. In the last decade, he has authored numerous publications on these subjects in a variety of leading social science journals and law reviews. He is also co-author (with Thomas) of The Miranda Debate: Law, Justice, and Policing and is the recipient of The Ruth Shonle Cavan Award from the American Society of Criminology, the Saleem Shah Career Achievement Award from the American Psychological Association and a Soros Senior Justice Fellowship from the Open Society Institute. He has lectured widely to police, judges, criminal defence attorneys, prosecutors and other professionals. He is currently completing a book on police interrogation and American justice for Harvard University Press.

Rod Lindsay is Professor of Psychology at Queen’s University. His main interests focus on eyewitness identification techniques (lineups and showups) and the credibility of witness testimony (e.g. of children). He is a co-editor of the 2006 two-volume Handbook of Eyewitness Psychology: Memory for Events and Handbook of Eyewitness Psychology: Memory for People (both with Ross, Read and Toglia). He has co-authored over 80 articles and book chapters and over 100 conference presentations, mostly on topics related to eyewitnesses. His publications include several articles in law journals and he was recently awarded a career achievement award from the Canadian Psychological Association for his Distinguished Contribution to the Application of Psychology. He participated in the sessions leading to the National Institute of Justice (US) publication Eyewitness Evidence: A Guide for Law Enforcement. He has participated extensively in the training of Canadian judges, prosecutors and law enforcement officers regarding issues of eyewitness accuracy and police procedures for obtaining and evaluating eyewitness evidence, particularly identification evidence. He has written expert reports for many court cases and has testified in criminal trials and civil hearings in a number of countries including consultation with prosecutors in the Rwandan war crimes trials.

Becky Milne is Principal Lecturer in Forensic Psychology at the Institute of Criminal Justice Studies of the University of Portsmouth. Her main interests focus on the cognitive interview, investigative interviewing (e.g. of suspects and witnesses), the investigation process and miscarriages of justice and the interviewing of vulnerable groups. She has written Investigative Interviewing: Psychology and Practice (with Bull). She has co-authored numerous articles in research journals and has been commissioned by the UK government to co-author guidance documents on achieving best evidence from vulnerable witnesses and the taking of evidence on commission. She sits on the Association of Chief Police Officers Strategic Steering Committee for Investigative Interviewing as the academic lead and acts as an interview advisor on many cases concerning the best ways to interview witnesses and victims. In addition, she trains investigators from numerous organizations with regard to the enhanced cognitive interview.

Jacqueline Stacey works as a researcher in the Peaks Academic and Research Unit in Nottinghamshire Healthcare Trust and is doing a PhD on the role of forgiveness in forensic populations, based at the University of Nottingham.

Aldert Vrij is Professor of Applied Social Psychology at the University of Portsmouth. His main research interests lie in deception, and he examines nonverbal and verbal correlates of deception and people’s ability to detect deceit. He has received grants from the Leverhulme Trust, ESRC, British Academy and the Nuffield Foundation to support this research. He has published almost 300 articles and six books on the above topics. His book Detecting Lies and Deceit provides a comprehensive overview of nonverbal, verbal and physiological correlates of deception. He presents seminars to professionals on a regular basis in Europe and other parts of the world. He also gives lie-detection training sessions to fellow academics. He acts as an expert witness on lie-detection issues in criminal cases in both his native country, the Netherlands, and in the United Kingdom. He is editor of Legal and Criminological Psychology and sits on the editorial boards of Law and Human Behavior, Human Communication Research, Psychology, Crime, and Law and Journal of Nonverbal Behavior.

Helen Westcott is Senior Lecturer in Psychology at The Open University. She is a member of the International Centre for Comparative Criminological Research (ICCCR) at The Open University, and has a longstanding interest in issues concerning child sexual abuse and interviewing children, along with cross-examination practice, and the abuse of children who are disabled. She publishes and presents widely on topics related to children’s evidence, for example her book Children’s Testimony published by Wiley in 2002, with Davies and Bull. She was a member of the writing team that produced the 2002 Home Office guidance, Achieving Best Evidence in Criminal Proceedings, and she works closely with practitioners and policy makers.

Series Preface

The Wiley Series on the Psychology of Crime, Policing and the Law publishes integrative reviews of important emerging areas of contemporary research. The purpose of the series is not merely to present research findings in a clear and readable form, but also to bring out their implications for both practice and policy. In this way, it is hoped that the series will not only be useful to psychologists, but also to all those concerned with crime detection and prevention, policing and the judicial process.

This is particularly the case for the current volume with its emphasis on practical psychology in investigations and prosecutions. As the editors point out, there have recently been made a number of technological advances that assist investigations and prosecutions but most still heavily rely on human abilities.

The chapters in this volume each cover one of the major aspects of investigations and prosecutions. Obtaining comprehensive and reliable information from witnesses has, until fairly recently, not really been a priority for police forces around the world. However, this is beginning to change, largely based on research, theory and input from psychologists. Similarly, the interviewing of suspects and the topic of false confessions is, at last, being influenced also by peer-reviewed, published research rather than solely by the views of experienced professionals. The topic of eyewitness identification has over recent decades been the focus of substantial research by psychologists, which has culminated in practical and useful recommendations for increasing their reliability.

Another very important topic that has received considerable attention from research psychologists is that of the detection of deception, particularly regarding the mistaken beliefs that many people have about reliable cues to deception. People also have mistaken beliefs about what offender profiling involves and how effective it has been.

Understanding the psychological characteristics of offenders can be useful to decision making both regarding investigations and prosecutions. Indeed, deciding to prosecute involves a range of psychological factors. One crucial factor here is the likely risk to society posed by the alleged wrong-doer.

An important issue that can influence decisions to prosecute and the effectiveness of prosecutions is investigators’ and courts’/jurors’ understanding of why many reports of sexual abuse are only made a long while after the alleged offences. Of similar importance is an understanding of why some (alleged) victims may subsequently try to withdraw their complaints.

This volume provides comprehensive chapters on each of the above topics. The editor and authors have succeeded in explaining psychological contributions in a clear way and of providing links across the chapters. I am confident that you will find this volume both very interesting and of immense practical use.

RAY BULL

University of Leicester

Preface

Crime is a blight on our societies. From Australia to the United States, Russia to South Africa, Iceland to Argentina, crime has a major impact on how people live their daily lives. Minor crimes such as vandalism and petty theft are a nuisance, and while they typically have comparably little economic impact, they create an environment of distrust and suspicion that can poison communities. More serious crimes such as assaults, kidnappings, rapes and murders have a more profound impact both on victims and their communities, leading to fear, hatred and isolation.

Technological advances, for example DNA testing and CCTV, have improved our methods of investigating and prosecuting crime, but despite these advances the majority of forensic investigations and prosecutions still rely on human factors. In this respect forensic investigations and prosecutions have changed little over the past couple of centuries. Investigators still rely on their own conceptualizations of who commits certain crimes to identify potential offenders, eyewitnesses are still integral to most investigations and prosecutions, and a suspect confessing still has a major impact on decisions to convict a suspect. It is in these human factors where psychology has its role. In this book, we outline current, cutting-edge research and its application to investigating and prosecuting offences.

Acknowledgements

We would like to acknowledge gratefully the contribution of Emily Hurren to the editing of this book.

Introduction

GRAHAM M. DAVIES AND MARK R. KEBBELL

Almost a century has passed since the publication of On the Witness Stand by Hugo Munsterberg (1908), one the first books to treat legal issues from a psychological standpoint. Munsterberg was an acknowledged pioneer of applied psychology, who moved from his native Germany to set up the first experimental psychology laboratory at Harvard at the invitation of William James (Hale, 1980; Moskowitz, 1977). Munsterberg’s book, based on a series of successful magazine articles, aimed at promoting the role of psychology in the courts, the police and the prisons. Despite its somewhat bombastic tone, the book’s central message, that the law and its agencies had ignored the importance and potential of psychology, shines through. Sadly, the research he was able to offer to support his claim was limited, took little account of the principles of jurisprudence or the realities of law enforcement and was leavened with trenchant criticism of lawyers (labelled as “obdurate”) and other law-enforcement professionals. Not surprisingly, the book was a popular success, but did little in the short term to promote the union of psychology and law. Indeed, it drew from the distinguished American jurist John Henry Wigmore a satirical review (1909), which though savage in its treatment of Munsterberg’s pretensions, did foresee a time when psychology might have something to offer the law.

We hope that on the evidence of the contributions to the current volume, Wigmore might well have concluded that psychology’s time had come. The contributors illustrate the many practical applications of psychology to forensic problems and the manifest opportunities for mutual cooperation that currently exist. There are many topics included in Munsterberg’s classic that feature in this book. They include the accuracy of memory of witnesses, the detection of crime and deception, untrue confessions and the use of suggestive questioning in court. In addition, the current volume covers other topics that Munsterberg could only have dreamed of: offender profiling, risk assessment procedures, sexual violence and offender behaviour, to name but a few. As the contributors illustrate, all are issues on which psychologists are currently working fruitfully with their professional colleagues in the police, social services and the law.

We trust our readers will find the tone adopted by all our contributors is more measured and constructive than Munsterberg and takes proper cognisance of the differences in the ways that psychologists and lawyers think and reach decisions. It would be foolish to think that there is not some residual friction between the different professional groups involved in the legal arena, but it is fair to say that guarded respect and mutual understanding is increasingly the norm. This process has been accelerated by the many positive impacts of forensic psychology on legal processes described by the various distinguished contributors to this volume.

Together, the contributions provide an overview of appropriate psychological methods for investigating and prosecuting offences. Practical information is provided designed to maximize the possibility of guilty persons being convicted and those innocent of charges being exonerated. Importantly, the book illustrates ways of ensuring that victims and suspects, both innocent and guilty, are treated with respect and in a professional way. A theme running through many contributions is the need for a more holistic approach to criminal justice that links the different stages of the investigative and prosecution process together by maximizing reporting rates, thorough investigation, effective presentation of evidence in court and effective sentencing. Clearly, forensic psychologists cannot by themselves ensure that such joined-up thinking prevails, but they can make a contribution to this ideal by working with their professional colleagues in law and law enforcement.

AN OVERVIEW OF THE CONTRIBUTIONS

In the opening chapter, Becky Milne and Ray Bull discuss the interviewing of victims of crime, with a particular emphasis upon children and those with intellectual disabilities. They emphasize the role of the interviewer’s expectations and agenda in shaping both the witness’s responses and any subsequent written report. Given these influences, they argue for the value of full recordings of all witness interviews conducted by the police. Effective styles of interviewing are discussed with a particular emphasis upon the staged interview recommended in the Home Office guidance, Achieving Best Evidence (Home Office, 2002). The practical problems of interviewing vulnerable victims are explored and some solutions offered to common problems with such witnesses.

Jennifer Baudry, Rod Lindsey and Paul Dupuis present some practical guidance on the conduct of identification procedures for suspects by the police. The simplistic view that identification is a matter of common sense has long since been demolished due to serious miscarriages of justice caused by confident but wrong identifications by witnesses. The authors draw attention to the most recent list of convicted persons exonerated through new DNA evidence where a primary cause of error was mistaken identification (Innocence Project, 2005). The authors produce a series of evidence-based recommendations on procedures to be followed in conducting mugshot searches and the composition of lineups and show-ups, designed to maximize the likelihood of an offender being identified, while minimizing the likelihood of an innocent suspect being selected.

Next, Laurence Alison and Mark Kebbell provide an evenhanded review of the research evidence for and against the authenticity of recovered memories. The issue of recovered memories – memories of traumatic events remembered after long intervals of apparent amnesia – initially polarized the psychological and psychiatric community between those who saw such ‘memories’ as invariably fabrications springing from suggestive therapeutic practices and those who believed they were the plausible consequences of global traumatic amnesia. Today, there are indications of a middle ground emerging in this debate (Davies & Dalgleish, 2001) and the current chapter is another constructive contribution. The authors also offer some cautionary words of advice for experts and investigators who may be drawn into cases involving the delayed reporting of sexual abuse.

Kevin Howells and Jacqueline Stacey examine the psychological characteristics of offenders: what makes a criminal. The authors stress that no one single factor characterizes all criminals and that some fashionable nostrums – such as “lack of self-esteem” – are not necessarily associated with criminality. The authors focus on serious offending, with an emphasis upon sexual and physical assaults, and draw on their experience of designing and running offender treatment programmes to argue that a range of factors, including impulsiveness, levels of anger and on occasion, cultural and political factors, need to be taken into account in reducing reoffending and countering crime in society.

Aldert Vrij’s chapter on detecting deception via verbal and nonverbal cues would have made disappointing reading for Hugo Munsterberg, an early exponent of the use of the lie detector. Vrij’s review of the research suggests that not only is the polygraph an unreliable instrument in the detection of deception, but also such contemporary successors as the voice-stress analyser and thermal imaging. He recommends more traditional solutions, such as getting suspects to elaborate on their alibis and withholding police evidence until after suspects have had the opportunity to give their version of events.

Mark Kebbell and Emily Hurren discuss techniques for interviewing suspects to obtain accurate information. They point out that a genuine confession from a guilty suspect has many advantages, not least the savings in time and cost and obviating the need of the victim to testify in court. They outline some of the psychological models that have been proposed to explain the process of confession and review ethical interview procedures that might encourage confession in guilty suspects: disclosing the mass of evidence against an accused is a far more effective and reliable method of securing a confession than the adoption of an aggressive and bullying posture.

The use of inappropriate interviewing techniques can lead to false confessions, another important source of miscarriages of justice according to DNA exoneration records. Deborah Davis and Richard Leo review the investigative techniques that are likely to lead to false confessions. These include prolonged interviewing and a certainty of guilt of the suspect that is not warranted by objective evidence. They emphasize the difficulties for both interrogators and the courts in readily distinguishing between true and false confessions and echo Milne and Bull in calling for all interviews to be videotaped. Once a confession is made, it is difficult for a suspect to re-establish their innocence, even when other evidence is inconsistent with the suspect’s account.

Laurence Alison and Mark Kebbell explore the myths surrounding one of the most prominent activities undertaken by forensic psychologists: offender profiling. They argue against the predominant view among profilers and indeed, the police, that it is possible to confidently infer from a crime scene, the character and the background of the offender. They describe research that suggests that crime-scene characteristics may owe as much to the situational factors as to the nature of the offender. They are critical of many profiles, which they assert, contain many generalized statements and unverifiable assumptions and call for a more overtly evidence-based approach to profiling.

Elizabeth Gilchrist discusses the factors underlying the decision to prosecute in criminal cases. The research she reviews undermines the belief that decisions are made purely on the basis of a rigorous consideration of the evidence and the demands of the public interest. She argues that any comprehensive model of legal decision making requires consideration of such factors as police practices on decision to charge, prosecutors’ beliefs and stereotypes, class attitudes and political influences. She points to the procedures adopted in Tasmania that list factors that should not be taken into account as well as those that should, in reaching decisions to prosecute.

Graham Davies and Helen Westcott look at the problem of the premature withdrawal of complaints by victims of crime, which can leave an offender free to perpetrate the same or more serious offences against other persons. This problem is particularly acute among witness victims who are vulnerable by reason of age or mental disability. They examine what can be done to reduce overt intimidation of witnesses and to support complainants, both during the investigative phase and at trial. They argue that while much can and is being done for vulnerable witnesses through alterations in legal process and social support, the demands of cross-examination will continue to be a formidable obstacle to justice for many victims.

Don Grubin tackles the contentious topic of communicating risk to the court. Advising on the likelihood of an offender committing further serious offences is a high-profile task for a forensic psychologist or psychiatrist. Success goes unnoticed, but failure is public and likely to lead to denigration by the press for the professional involved. Grubin highlights common confusions, such as that between the likelihood of further offending and the consequences for the victim. He illustrates how actuarial approaches are rapidly overtaking clinical judgement as the most accurate and transparent method for assessing risk with violent and sexual offenders. He emphasizes that while the final decision lies with the courts, it is up to the assessor to communicate clearly the reasons for their assessments, both immediate and in the longer term.

In the concluding section, the editors note the roles that forensic psychologists are already taking in progressing the investigative, prosecution and trial process, as described by the contributors to the current volume. These contributions illustrate also the different methodological approaches that have been adopted, not merely quantitative but qualitative, not merely experimental, but also field and case-study approaches. Finally, they emphasize the crucial importance of communicating with the other players in the legal process: police officers, social workers, lawyers and judges. This communication process needs to be two-way: forensic psychologists passing on their own insights, but also learning more about important and unexplored issues, which can better shape their research to the practical realities of the police station and courtroom. Only then perhaps, can forensic psychology be said to have fully learned the lessons of Hugo Munsterberg and On the Witness Stand.

REFERENCES

Davies, G.M. & Dalgleish, T. (2001). Recovered memories: Seeking the middle ground. Chichester: John Wiley & Sons, Ltd.

Hale, M. (1980). Human science and social order: Hugo Munsterberg and the origins of applied psychology. Philadelphia: Temple University Press.

Home Office (2002). Achieving best evidence in criminal proceedings: Guidance for vulnerable or intimidated witnesses, including children. London: Home Office.

Innocence Project (2005). Accessed at http://www.innocenceproject.org.

Moskowitz, M.J. (1977). Hugo Munsterberg: A study in the history of applied psychology. American Psychologist, 32, 824–842.

Munsterberg, H. (1908). On the witness stand: Essays on psychology and crime. New York: McClure.

Wigmore, J.H. (1909). Professor Munsterberg and the psychology of testimony: Being a report of the case of Cokestone v. Muensterberg. Illinois Law Review, 3, 399–445.