During “questioning” on the stand, the expert may be offered the choice of sitting or standing. As a rule, depending upon the position of the case bundle to be consulted during questioning, the authors prefer to stand when giving evidence. It is also entirely appropriate for the expert to request, of the judge, a glass of water at the outset. This simple act denotes comfort and familiarity with courtroom procedures and surroundings, together with helping to establish rapport with the adjudicator. Water, and requests for refills, also offers the expert an opportunity to reflect while having a drink and gives a message to the parties to the proceedings that the expert is in no hurry to conclude giving his or her testimony. It is important to maintain an open stance and even, respectful eye contact throughout, whilst directing responses to the judge after receiving questions from the examining barrister. A recognition that the lawyer is representing his or her client as skilfully as possible assists the expert in not taking questions personally or becoming defensive.
At all times the expert’s job is to be objective, stay within their range of expertise in responding, demonstrating an open and reflective manner and presenting as a reliable and credible witness. In some instances, barristers may attempt to intimidate expert witnesses. In these circumstances the expert is advised to accept questions from the barrister, whilst essentially marginalising communication with the barrister and directing dialogue to the bench. Accordingly, the judge will, by virtue of the role they undertake, maintain an objective and non-biased view in the interests of collecting the information they require to support the jury or in civil cases make an independent and fair judgment at the conclusion of the case. Whilst nerve racking and challenging this work is often rewarding and an exercise in “mental gymnastics”.
In some cases of expert witness disagreement, where experts may be instructed by opposing parties, a judge may order concurrent evidence. The 60th update to Criminal Procedure Rules (CPR, 2013) amended the Practice Direction (PD) accompanying Part 35 of the CPR. PD35 gives the court the power to order concurrent evidence/hot-tubbing by allowing it to direct that expert witnesses from like disciplines can give their evidence concurrently by sharing the witness stand together. The judge may initiate the discussion by asking the experts, in turn, for their views. Once an expert has expressed a view the judge may ask questions about it. At one or more appropriate stages when questioning a particular expert, the judge may invite the other expert to comment or to ask his own questions of the first expert. The idea of “hot-tubbing” is increasingly being used as a method of reaching points of agreement between experts without delaying the court timescale. Similarly, the court may order that the experts attend a professionals meeting and prepare a joint statement highlighting the areas of agreement and disagreement.
16.8 CONCLUSIONS
Forensic psychologists often have specific and different areas of expertise, since the knowledge base of forensic psychologists cuts across clinical, educational, social, developmental, abnormal, neurophysiological, occupational and other areas of psychology (Craig, Dixon, & Gannon, 2013; Gudjonsson, Sigurdsson, Sigurdardottir, Steinthorsson, & Sigurdardottir, 2014; Wilcox, 2013). Forensic psychologists will invariably have an expertise in at least one area of psychological knowledge that has common application to forensic settings (e.g. assessing capacity, determining clinical diagnosis, evaluating the behaviour of specific groups of individuals with, for example heightened anger potentials, deviant sexual interests, psychopathic personality features, etc). In addition, the forensic psychologist’s recognised area of expertise may centre around assessment (Craig & Rettenberger, 2016), treatment (Wilcox, Garrett, & Harkins, 2014), theory (Ward & Beech, 2016) or research (Davies & Valentine, 2007). However, longer term involvement in expert reporting tends to give rise to a gradual development and diversification of professional interests and an expansion of the expert’s skill base.
In the UK, these factors are reflected in the way that this discipline came to acceptance as a separate field by the British Psychological Society, following the initial chartering of forensic psychologists within the society in the 1980s and 1990s. This development occurred through a process of “grandfathering in” chartered psychologists from other areas of psychology where they were substantially involved in the criminal justice system, via the courts or associated agencies, including the police, probation and prison services. Over the intervening period in the UK, training programmes have been developed at masters and doctorate level in the field of forensic psychology (see the introductory chapter of this book). The masters’ programmes can only take the students through the stage one requirements and stage two is fulfilled via doctorate programmes or via the BPS route. Once qualified, it is expected the psychologist will work with more senior colleagues and experienced expert witnesses, gaining valuable clinical skills, carrying out assessment and shadowing their colleagues when attending court, for a significant period of time, before they are considered ready and experienced enough to act as an expert witness.
16.9 SUMMARY
An expert witness must help the court to achieve the overriding objective by giving opinion that is objective and unbiased, and within the expert’s area or areas of expertise.
Expert witnesses are entitled to give expert opinion to a court based on their expertise, qualifications and training.
Expert witnesses are expected to be familiar and qualified in content and process and have knowledge of relevant legislation in the areas within which they work.
A competent and experienced expert witness will be able to identify and addresses the main issues, explain complex concepts in a way to assist the court, deal with challenging questions under cross-examination and advance key strengths in their evidence whilst remaining calm and composed throughout.
ESSAY/DISCUSSION QUESTIONS
What are the origins of the Daubert Standard and how do these apply to the forensic psychologist expert witness?
Critically comment on the role of psychologists as expert witnesses. Being an expert does not necessarily imply one can be an expert witness. Discuss.
How does the English criminal procedure deal with the accused person whose mental state is such that he/she may be “unfit to plead”? What safeguards are there to ensure that such persons are not committed to a psychiatric hospital or other institution without an inquiry into the facts of the case?
In what situation might a person be found not guilty of murder but legally responsible for a person’s death?
ANNOTATED READING LIST
British Psychological Society. (2007). Statement on the conduct of psychologists providing expert psychometric evidence to courts and lawyers. Retrieved from http://www.bps.org.uk/sites/default/files/documents/statement-_psychometric_evidence.pdf Sets out the guidance to psychologists and users of psychological tests concerning obligations when providing evidence or opinion, which rests on the results of psychometric testing.
British Psychological Society. (2015). Psychologists as expert witnesses: Guidelines and procedure (4th ed.). Retrieved from http://www.bps.org.uk/system/files/Public%20files/inf129_april_2015_web_expert_witness_guidance.pdf Provides some guidance to expert witness psychologists in terms of expected qualifications, the nature of receiving instructions and issues of confidentiality and appearance in court.
British Psychological Society. (2015). Criminal procedure rules. Part 19: Expert evidence. Retrieved from http://www.justice.gov.uk/courts/procedure-rules/criminal/docs/2015/crim-proc-rules-2015-part-19.pdf Outlines the expert witness’s duty to the court, how the instruction of an expert is decided upon in court and the requirements of the contents of the expert’s report.
Crown Prosecution Service. (2010) Guidance booklet for experts disclosure: Experts’ evidence, case management and unused material. Retrieved from http://www.cps.gov.uk/legal/d_to_g/disclosure_manual/annex_k_disclosure_manual/ This booklet is designed to provide a practical guide to preparing expert evidence and the disclosure obligations for expert witn
esses. When properly applied, these instructions will assist expert witnesses, investigators and prosecutors to perform their disclosure duties effectively fairly and justly.
REFERENCES
American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders (5th ed.). Arlington, VA: American Psychiatric Publishing.
Craig, L. A., Dixon, L., & Gannon, T. A. (2013). What works in offender rehabilitation: An evidence-based approach to assessment and treatment. Chichester: John Wiley & Sons.
Craig, L.A., & Rettenberger, M. (2016). The Wiley Handbook on the Theories, Assessment and Treatment of Sexual Offending: Volume 2, Assessment. Chichester: Wiley-Blackwell.
Craig, L. A., Stringer, I., & Hutchinson, R. B. (2017). Assessing mental capacity in offenders with learning disabilities. In K. D. Browne, A. R. Beech., & L. A. Craig (Eds.), Assessment in forensic practice: A handbook: (pp. 172–197). Chichester: Wiley-Blackwell.
Criminal Justice Act (2003). London: HMSO. Retrieved from http://www.legislation.gov.uk/ukpga/2003/44/contents
Criminal Procedure [Insanity] Act (1964). London: HMSO. Retrieved from http://www.legislation. gov.uk/ukpga/1964/84
Criminal Procedure (Insanity and Unfitness to Plead) Act (1991). London: HMSO. Retrieved from http://www.legislation.gov.uk/ukpga/1991/25/contents
Crown Prosecution Service. (2010). Chapter 36 : Expert witnesses – Prosecution disclosure obligations. Prosecution policy and guidance, legal guidance. Disclosure manual. Retrieved from http://www.cps.gov.uk/legal/d_to_g/disclosure_manual/disclosure_manual_chapter_36/#a251
Daubert v Merrell Dow Pharmaceuticals Inc (1993) 509 U.S., 113 S.Ct 2786.
Davies, G. M., & Valentine, T. (2007). Facial composites: Forensic utility and psychological research. In R. C. L. Lindsay, D. F. Ross, J. D. Read , & M. P. Toglia (Eds.), Handbook of witness psychology: Volume 2: Memory for people (pp. 59–86). New Jersey: Erlbaum.
Domestic Violence, Crime and Victims Act (2004). London: HMSO. Retrieved from http://www.legislation.gov.uk/ukpga/2004/28/contents
Drayton, M., & Wilcox, D. T. (2013). The parents putting kids first programme. Unpublished manuscript.
Frye v United States (1923). 293, F.1013 (D.C.Cir, 1923).
Friedman, A. F., Webb, J. T., & Lewak, R. (1989). Psychological assessment with the MMPI. Hillsdale, NJ: Lawrence Erlbaum Associates.
Gudjonsson, G. H., Sigurdsson, J. F., Sigurdardottir, A. S., Steinthorsson, H., & Sigurdardottir, V. M. (2014). The role of the memory distrust in cases of internalised false confessions. Applied Cognitive Psychology, 28, 336–348.
Hammelstein, P., & Soifer, S. (2006). Is “shy bladder” (paruresis) correctly classified as social phobia? Journal of Anxiety Disorders, 20, 296–311.
Mental Capacity Act (2005). London: HMSO. Retrieved from http://www.legislation.gov.uk/ukpga/2005/9/contents
Mental Health Act (1983). London: HMSO. Retrieved from http://www.legislation.gov.uk/ukpga/1983/20/contents
Mental Health Act (1983, revised 2007). London: HMSO. Retrieved from http://www.legislation.gov.uk/ukpga/2007/12/contents
Ministry of Justice (2009). Preparing for care and supervision proceedings: A best practice guide. London: Care Proceedings Programme for the Ministry of Justice.
Police and Criminal Evidence Act (1984). London: HMSO. Retrieved from http://www.legislation.gov.uk/ukpga/1984/60/contents
R. v Clark (1999) Crown Court, 9.11.1999.
R. v Clark (2003) EWCA Crim 1020, 11.04.2003.
R v. Prichard (1836) 7 C&P. 303.
Ward, T., & Beech, A. R (2016). The Wiley Handbook on the Theories, Assessment and Treatment of Sexual Offending: Volume 1, Theory. Chichester: Wiley-Blackwell.
Wilcox, D. T. (2013). Experience as a forensic psychologist in working with sex offenders. In K. Harrison & B. Rainey (Eds.). Legal and ethical aspects of sex offender treatment and management. Chichester: Wiley-Blackwell.
Wilcox, D. T., & Baim, C. (2015). Applications of the Dynamic-Maturational Model of Attachment with children involved in care and family proceedings. Child Abuse Review, 25(4), 287–299.
Wilcox, D. T., Garrett, T., & Harkins, L. (Eds). (2014) Sex offender treatment: A case study approach to issues and interventions. Chichester: Wiley-Blackwell.
NOTE
1 The scientist-practitioner model produces a psychologist who is uniquely educated and trained to generate and integrate scientific and professional knowledge, attitudes, and skills so as to further psychological science, the professional practice of psychology, and human welfare.
PART 4
Dealing with Offenders
17 Crime and Punishment: What Works?
JAMES MCGUIRE
CHAPTER OUTLINE
17.1 INTRODUCTION
17.2 THE SENTENCE OF THE COURT
17.3 THE OBJECTIVES OF SENTENCING 17.3.1 Retribution and Desert
17.3.2 Incapacitation
17.3.3 Deterrence
17.3.4 Rehabilitation
17.3.5 Restoration and Reparation
17.4 THE IMPACT OF SENTENCING 17.4.1 The Effects of Criminal Sanctions
17.5 REDUCING OFFENDING BEHAVIOUR 17.5.1 The Evidence Base
17.5.2 Findings of the Reviews
17.5.3 Implications for Effective Practice
17.5.4 Examples of Effective Interventions
17.6 PSYCHOLOGICAL CONTRIBUTIONS TO OFFENDER ASSESSMENT AND MANAGEMENT
17.7 SUMMARY
LEARNING OUTCOMES
BY THE END OF THIS CHAPTER, YOU SHOULD BE ABLE TO:
1.Understand why an analysis of sentencing informed by psychology can provide a useful perspective on the legal process
2.Appreciate the range of research methods used to explore the effectiveness of sentencing and its components
3.Have an increased awareness of the implications of existing findings for supporting psychologically-based approaches to offender assessment and rehabilitation.
17.1 INTRODUCTION
The process of sentencing is probably familiar to most people. For the majority, this is likely to have derived from pervasive media attention devoted to “law and order” issues and to courtroom decisions. But a sizeable proportion of the population experience direct personal contact with the legal system: in the UK it has been estimated that almost one-third of us will be convicted of a criminal offence at some point in our lives.
PHOTO 17.1 Under the general political obligation that binds individuals to each other and to the state, there is a necessary reciprocity: punishment then restores a proper balance.
Source: © arturbo/iStockphoto
This chapter examines several aspects of sentencing with reference to psychological research. The opening section of the chapter takes us into the field of penology – the study of legal punishments. It outlines what are generally considered to be the main objectives of sentencing, and the rationale underpinning them in each case. These objectives include retribution, incapacitation, deterrence, rehabilitation, and restoration. To the extent that sentencing is intended to achieve certain socially desirable effects, mainly in terms of its impact on those made subject to it, the second section of the chapter reviews research findings relevant to this. Is it possible to reduce rates of recidivism (a pattern of repeated criminality) amongst persistent offenders? Research clearly shows that the nature of a sentence is much less important in this respect than what happens during the course of it. Alongside other professions, psychologists have made significant contributions to this area in a number of ways, for example in terms of: identifying risk factors for recurrent involvement in crime; in designing and implementing methods of working with frequently convicted offenders; and in evaluating the outcomes of psychosocial interventions. The final, brief section of the chapter considers the somewhat paradoxical situation in which psychology finds itself in relation to the practice of criminal justice.
17.2 THE SENTENCE OF THE COURT
Individuals found guilty of committing crimes1 can expect to be sentenc
ed by the courts. This has been standard practice in many countries for several hundred years. Broadly speaking, there is a rough correspondence between the seriousness of crimes committed and the severity of sentences imposed. Where there are marked departures from this – mainly when sentences are deemed too lenient – controversy often erupts. Centuries of accumulated experience notwithstanding, many aspects of the process remain poorly understood. Until recently some of them had not been very searchingly examined.
This chapter approaches the nature and the outcomes of sentencing from a psychological perspective, and outlines the roles that psychologists may play in the different stages of sentencing decisions; though generally with reference to what happens after those decisions have been made. Other chapters have addressed earlier stages of the legal process, such as police investigation and the presentation of evidence in court. For the criminal courts, at least at present, the culmination of the legal process is the finding of guilt or innocence and the passing of sentence.
The word “sentence” derives (via Middle English and Old French) from the Latin word sententia, meaning a feeling or opinion communicated by someone to others. This captures something crucial about it: other than in highly exceptional circumstances, sentencing is a public process. Magistrates, judges and others engaged in it are reflecting and embodying the community’s distaste, perhaps revulsion, regarding something someone has done. Hence sentencing is often considered to serve a primarily expressive function: it conveys to the offender the public’s reaction to his or her conduct in the criminal offence.
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