Poor Psychology Produces Poor Law

Law & Human Behavior

Underwager, Ralph, & Wakefield Hollida

Both psychology and law are concerned with human behavior. Law depends upon what everyone knows and believes about human behavior, upon common knowledge. In contrast, psychology distrusts common knowledge and substitutes knowledge based on empirical data systematically gathered and rationally analyzed. This conflict may cause misunderstanding between law and psychology. However, a common ground of both law and psychology is the goal to reduce error. Neither discipline can claim complete validity and reliability, but both continuously seek to improve procedures and the understanding of human behavior. "Whatever justice may be, surely it is not error" (Saks & Kidd l980-8l, p. 123).

The only reason for the law to pay attention to psychology is the expectation that it may improve the accuracy and effectiveness of the legal system. However, within psychology there are differences in the level of scientific status or credibility. Meehl (1989) draws a distinction between psychological theories, techniques, and procedures with high and clear validity and those with low and doubtful validity. Testimony in court by psychologists should be limited to high and clear validity material, or at the very least the limits and qualifications of low and doubtful validity statements must be described.

The Specialty Guidelines for Forensic Psychologists, prepared by Division 41 of the American Psychological Association and the American Board of Forensic Psychology, contain the principle that psychologists who

  • "provide professional psychological expertise to the judicial system ... have an obligation to provide services in a manner consistent with the highest standards of their profession" (American Psychology-Law Society, 1991, p.8).

When the science of psychology is represented to the U.S. Supreme Court in an amicus curiae brief by the largest professional organization of psychologists, the American Psychological Association, it is reasonable to expect adherence to the highest standards of the profession and the highest level of competence (Bersoff, 1987). Anything less is poor psychology. If such a representation is, in fact, poor psychology, the best prediction is that the interaction will produce poor law.

This is what we suggest happened in the presentation of the APA's amicus curiae brief to the U.S. Supreme Court in the Craig v. Maryland case (110 S. Ct. 3157, 1990). The science of psychology simply cannot do what the APA brief told the Supreme Court it can do. In this case, poor psychology of low and doubtful validity has been represented as good psychology with high and clear validity, causing the Supreme Court to generate poor law that cannot serve the cause of justice nor advance the goal of reduction in error and increased accuracy.

Effects of Testifying on Children

In child sexual abuse cases, the child's testimony is critical. However, mental health professionals and legal experts are concerned about the effects of court procedures on children. The concern is not only that children will be traumatized by participating in court, but that high levels of anxiety will adversely affect their ability to testify accurately and persuasively.

This concern for minimizing "secondary victimization" of sexually abused children and maximizing the accuracy and credibility of their testimony has led to modifications of court procedures when the witness is a child. Courts have dispensed with defendants' constitutional confrontation rights when they judged it necessary to facilitate the testimony of alleged child victims of sexual abuse and to protect the child from the psychological trauma of testifying in the presence of the defendant. This is the constitutional issue addressed in Craig v. Maryland.

There are numerous articles addressing the question whether children are psychologically damaged by testifying in court in the presence of the defendant. However, the psychological literature contains very few quantitative studies; most are

  • case studies,
  • clinical impressions, or
  • anecdotal reports.

Although three recent studies

  • (Goodman, 1989;
  • Flin, Davies, & Tarrant, 1988;
  • Runyon, Everson,
  • Edelsohn, & Hunter, 1988)

have addressed the effects of testifying on children, there are no empirical studies that have focused exclusively on the psychological effects of child witnesses testifying in the presence of the defendant.

APA Amicus Curiae Brief in Craig v. Maryland

Three years before Craig v. Maryland, the American Psychological Association (APA) submitted to the U.S. Supreme Court an amicus curiae brief (American Psychological Association, 1987) in a child sexual abuse case, Kentucky v. Stincer (282 U.S. 730, 1987). The 1987 APA brief noted this case raised the question of "the proper accommodation of two cardinal principles" –

  • the fundamental right of criminal defendants to personally confront adverse witnesses with
  • the State's interest in safeguarding the physical and psychological well-being of minors (p.2).

The important question, therefore, is the potential harm of testifying in court in the presence of the defendant.

In the review of the literature, the 1987 APA Kentucky v. Stincer brief concluded there were few data to support the proposition that face-to-face confrontation has more negative effects for child victims than it has for adults.

However, 3 years later, in 1990, the APA submitted an amicus curiae brief in Maryland v. Craig (No.89-478). The Motion for Leave to File an Amicus Curiae claims

  • "the data generated by psychological research has (sic) developed substantially since the APA submitted its Stincer brief in January 1987" (p.3).

In the brief (Goodman, Levine, Melton, & Ogden, 1991) the APA claimed that there was now "much stronger" (p. 17) evidence to support the contention that children are emotionally distressed by courtroom confrontation with their alleged abusers and stated:

  • The resulting body of research supports the proposition that children as a class may be especially likely to be emotionally distressed by courtroom confrontation with their alleged abusers (p.17) ...
  • Sexually abused children frequently suffer serious emotional trauma and may be particularly vulnerable to further distress through the legal process (p. 18) ...
  • Child victims may be more likely than adult victims to suffer substantial distress as a result of testifying in the physical presence of the defendant (p.20).

In a 5-4 decision, the United States Supreme Court, in June, 1990, ruled that the Confrontation Clause does not guarantee criminal defendants an absolute right to a face-to-face meeting with the witnesses against them at trial. It stated that a state's interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh a defendant's right to face his or her accusers in court

  • (Maryland v. Craig, Certiorari to the Court of Appeals of Maryland. No.89-478, decided June 27,1990).

The four dissenting justices perceived this decision as a subordination of constitutional rights to popular opinion. Justice Scalia, writing for the dissent, stated,

  • "Seldom has this Court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing public opinion" (p.1).

The Supreme Court majority ruling in Maryland v. Craig twice cites the APA amicus curiae brief and refers to authorities cited in the brief. Justice O'Connor and the majority accepted the claim of the APA brief that there is a

  • "growing body of academic literature documenting the psychological trauma suffered by child abuse victims who must testify in court" (Maryland v. Craig ruling, p.16).

Mr. Dort Bigg, APA executive associate for legal affairs, said,

  • "The court adopted our entire argument. It's very clear the court listened to what we had to say (DeAngelis, 1990, p.1).

Criticisms of the APA Brief in Craig v. Maryland

Our judgment is that the "much stronger" evidence since Kentucky v. Stincer presented by the Craig v. Maryland APA brief to support their assertion that serious emotional trauma may be inflicted upon children through courtroom confrontation with their alleged abusers is of low and doubtful validity. We believe the brief

  • overstates the data,
  • fails to adequately present limits and qualifications of the studies it cites, and
  • mixes together empirical research, clinical observations, clinical experience, and theories as if all had equal weight.

The brief claims,

  • "Psychological theory and data about the dynamics of sexual abuse victims' emotional distress make possible individualized determinations about the need for protective measures without requiring vulnerable children to directly confront their alleged abusers in every case" (Goodman et al., 1991, p. 23).

However, the only support offered by the APA brief for this point is clinical observation and theory.

  • Beginning with Meehl's (1954) book, Clinical Versus Statistical Prediction, research has repeatedly demonstrated the unreliable nature of clinical observations, judgments, and experience (Dawes, 1990; Dawes, Faust, & Meehl, 1989; Garb, 1989; Kleinmuntz, 1990; Meehl, 1986; Turk & Salovey, 1985).

However, the APA brief presents statements derived only from clinical experience as authoritative. The place of clinical observation in the science of psychology is only as a source of hypotheses that may be built into a theory. Until there are quantitative data to establish an acceptable level of scientific support, clinical observations are hunches and not facts.

The APA brief describes four speculative factors based on Finkelhor and Browne's (1985) conceptual model of the consequences of sexual abuse. In each paragraph it adds a conclusion for which there is no evidence either in the model or any cited research.

The four unsupported conclusions are as follows:

[1] The fear, when present, may be rearoused in the presence of the defendant ...
[2] The strong emotion of betrayal may be rekindled when the vulnerable child confronts a formerly trusted defendant ...
[3] When confronted by the defendant, the child may reexperience the sense of helplessness or powerlessness ...
[4] confrontation may arouse these complex and powerful emotions and interfere with the child victim-witness' ability to communicate reasonably. (pp.15-16)

There is no research testing this model or the hypotheses it generates. Finkelhor and Browne offer their model as a speculative "conceptualization ... that can be used in both research and treatment" (p.530). There is no evidence supporting the conclusions about the presence of the defendant which the APA brief adds to the proposed model.

No credible data are given in the APA brief for the claim that since the APA Kentucky v. Stincer brief in 1987 it has become possible to make reliable and valid individualized determinations about the need for protective measures for children. There are no data supporting the claim that there is now "much stronger" evidence that children are emotionally distressed by courtroom confrontation with the defendant.

The brief cites 49 articles and presentations in the Table of Authorities. Of these, 16 are post 1987 and the Stincer brief and could be seen as relating to children as witnesses. Several of these are unpublished papers or reports. Only a few are concerned with the emotional effects of testifying and only three are based on empirical research. Thus the claim of much stronger evidence and substantial development rests upon three studies.

To support claims that face-to-face confrontation with the defendant is the chief source of trauma to children, the APA brief refers to

  • Goodman (1989),
  • Runyon et al. (1988),
  • Flin et al. (1988), and
  • Berliner and Barbieri (1984).

The Berliner and Barbieri article is not a research report.

The Flin et al. report does not support the brief's claim. Flin et al. (1988) interviewed child witnesses in criminal trials and observed them giving evidence. They report on several possible sources of stress for children but note that not all of the children were frightened or affected by their role as a witness. Only 5 out of 46 children who were interviewed prior to trial gave responses indicating fear of the accused. Out of 22 children who were observed testifying, only 2 were observed becoming upset.

Runyon et al. (1988) studied the effect of court proceedings on 75 sexually abused children and report that testimony in juvenile court appeared to be beneficial for the child, whereas protracted criminal proceedings seemed to have an adverse psychological effect. However, the factor behind this adverse effect was the lengthy delays in the resolution of criminal prosecution. This does not support the brief's claim that children are apt to be damaged by testifying in the presence of the defendant.

Therefore, two of the three research studies cited in the brief do not support the claim of the brief. The third, Goodman (1989), is identified by the brief as unpublished. To cite an unpublished and non-peer-reviewed study as "much stronger" evidence raises questions about the APA claim that peer-reviewed journals are necessary as quality control for research.

In this study, Goodman and her colleagues (Goodman, 1989; Goodman et al., 1988; Goodman et al., 1989) report on a research project on 218 children's reactions to criminal court testimony. They compared the emotional disturbance of a group of testifiers to a matched control group of nontestifiers. At different points, the children were interviewed and standardized measures were completed and the testifiers were observed in court.

In the courtroom interviews before testifying, the most frequent negative feelings expressed by the children were

  • testifying in court,
  • talking to the defense attorney, and
  • seeing the defendant in court.

The most frequent negative feeling expressed after testifying was seeing the defendant in court. But the use of this study to support the claim that most children are fearful of confronting the accused is an overinterpretation of the reported data. Although in the postcourt measures most of the children gave negative responses about seeing the defendant in court, this does not mean they were fearful.

It also does not mean that they are at risk for enduring emotional distress. There were no significant differences in emotional disturbance between the testifiers and the control group at 3 months following testimony. Seven months following testimony, the testifiers showed a higher level of disturbance compared to the control group. The difference in level of disturbance at the 7-month follow-up was due to the greater improvement of the control group. The testifiers did not get worse. But at the final follow-up, when the cases were resolved, the mental health of most testifiers was similar to the controls. In addition, in the measures of psychological adjustment, the presence of the defendant was not isolated as a separate factor so there is no way to ascertain the degree to which this contributed to any distress.

The APA brief assumes that a child fears an accused person and therefore the capacity to testify is adversely affected. The assumption that the fear is caused by having been abused by the defendant already assumes guilt and violates the presumption of innocence.

This assumption also ignores the possibility that a child witness, in the interim between an accusation and testimony, may have been taught by adults to fear the accused. We believe that although there is no research specifically addressing the possibility that child witnesses learn to be afraid of the defendant through interviews or therapy, this possibility must be considered.

Fear may be learned from adults repeatedly telling a child that the accused has hurt them, is bad, wicked, should be punished, and is to be feared. The child also may have been in therapy where fear of the defendant is inadvertently reinforced by the therapist. The experience of fear is related to learned expectancies (Reiss, 1991). The way 75% to 89% of phobic responses originated in childhood were through

  • conditioning,
  • modeling, and
  •  instruction (Ost, 1987).

The last point in the argument of the APA brief is that research demonstrates that children who are required to testify in the presence of the defendant may refuse to testify or testify less completely, and jurors may not be able to weigh children's testimony accurately. This may then result in a disservice to the truth-seeking rationale of the Confrontation Clause.

This truth-seeking rationale is described by Justice Scalia in Coy v. Iowa (1988):

It is always more difficult to tell a lie about a person "to his face" than "behind his back" ... the right to face-to-face confrontation serves much the same purpose as a less explicit component of the Confrontation Clause that we have had more frequent occasion to discuss the right to cross-examine the accuser; both "ensur[e] the integrity of the fact-finding process." [citations omitted].

The State can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses ...
That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child, but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs. (p.866)

The APA brief states,

  • "if a vulnerable child-witness is required to testify under conditions of high emotional arousal, the confrontation clause interest of providing reliable testimony will not be served" (Goodman et al., 1991, p.26).

However, the brief does not offer credible scientific data to support the assertion that emotional arousal may result in unreliable testimony. The first authority cited by the APA brief to support a claim that a child victim-witness

  • "testifying under conditions of heightened emotional arousal is most likely to refuse to testify, to be unable to verbalize answers to questions, or to be tearful" (Goodman et al., 1991, p.26)

is an anecdote from a court record. Anecdotal accounts are not scientific evidence and cannot be used to support a claim of scientific credibility.

The APA brief lists a study by Goodman, Rudy, Bottoms, and Aman (in press) in the Table of Authorities. However, in that study, reporting what is touted as ecologically valid research, the literature review section includes "there is reason to believe that high levels of stress are associated with better memory" (p.34) and cites four studies.

After describing the prediction prior to collecting data that stress would facilitate memory, the summary of the results states:

Our general finding was that stress had a facilitative effect on the children's reports. Specifically, planned comparisons revealed that children at the highest stress levels recalled more information than the other children and were less suggestible. Interestingly, the children had to reach a level of great distress before beneficial effects on memory were evidenced. (p. 37)

It is difficult to understand how a research study by one of the principal authors of the brief, Goodman, whose work is the most frequently cited in the brief, could be overlooked, misrepresented, or not understood. Yet, it denies both the premise and the conclusion of the argument in APA brief.

The APA brief cites a study by Hill and Hill (1987) as indicating that children are more likely to omit information and are somewhat more likely to recall less correct information than children who testify in a private room without the defendant present, as in a one-way closed circuit television arrangement. This study is the only one cited for the conclusion that the accuracy and completeness of children's testimony is adversely affected by courtroom confrontation with the defendant.

However, the APA brief omits the fact that Hill and Hill's results do not show statistical significance for four out of the five measures. The two conditions did not show differences in free recall of central or irrelevant details nor in correct or incorrect answers to specific questions. The only significant difference (p < .021) was in the number of 'do not know' or 'no' answers to specific questions with children in the courtroom environment giving more such responses. This finding could also mean that the courtroom environment did what it is supposed to do: reduce speculative error and increase accuracy.

In summary, we conclude ...

... that the APA brief does not support its assertion of much stronger evidence since 1987 with credible data. It does not present data to support its claim that fear of courtroom confrontation is characteristic of most children. It does not present credible data showing an adverse effect on the quality of testimony. Instead, it offers speculative opinion, oversimplification, overinterpretation, and preliminary studies.

We believe the material presented is of low and doubtful validity. When considering the question of a state interest compelling limitation of an individual constitutional right, only the best information, based on sound empirical research, with high and clear validity, should be presented by the American Psychological Association to the Supreme Court of the United States. In our opinion, the APA amicus curiae brief in Craig v. Maryland did not do this.

What Does Craig v. Maryland Mean for Psychologists?

This Supreme Court decision demonstrates the great difficulties in the relationship between the legal system and the science of psychology. Our understanding of the Maryland v. Craig decision is that it is likely to set up a requirement that no responsible mental health professional can meet.

The Syllabus of the Supreme Court decision summarizes the requirement:

  • (c) The requisite necessity finding must be case specific. The trial court must
    - hear evidence and determine whether the procedure's use is necessary to protect the particular child witness' welfare;
    - find that the child would be traumatized, not by the courtroom generally, but by the defendant's presence; and
    - find that the emotional distress suffered by the child in the defendant's presence is more than de minimis. (p. iii)

This ruling appears to demand that there be an evidentiary hearing, prior to the trial, at which there will be testimony, most likely by experts, about the effect on the specific child of testifying in the presence of the person accused.

This puts psychologists in an extremely difficult position. No professional can respond to this requirement with anything other than subjective opinion. There is no research that separates out the single factor of the defendant's presence from all other factors in assessing the effects of courtroom testimony on a child. Nobody knows how to determine whether the single factor of the presence of the defendant, by itself, causes serious emotional distress. However, the Supreme Court's ruling may require an expert to predict that the presence of the defendant alone will cause serious emotional harm. The ruling clearly states that this must be "more than mere nervousness or excitement or some reluctance to testify."

The clinical studies, anecdotal evidence, and research studies on the effects of testifying on children report a variety of responses from children, ranging from positive to negative. In addition, although children and parents may describe the court experience as stressful and children may report feeling negatively about seeing the defendant, few children are described as experiencing severe emotional distress from testifying.

For example,

  • Flin et al. (1988), cited by the brief, describes only 2 of 22 children who were observed testifying becoming upset.
  • Goodman (1989) reports that only 3 (8%) of the children testifying in preliminary hearings were rated as "very distressed" by observers. (She reports that 11 [65%]) of the children testifying in trials experienced "some distress" or were "very distressed," but she combines these categories so they are not interpretable in terms of the Craig v. Maryland requirement.)

Therefore, Craig v. Maryland will require psychologists to predict a low base rate behavior – becoming traumatized and emotionally distressed by testifying – and assert that it is the presence of the defendant that causes this emotional distress.

The dilemma this creates is analogous to the prediction of violence. Mental health professionals are notoriously poor at predicting violence, especially in the absence of a history of violence. Monahan (1983) pleads for second generation research that is actuarial and statistical to improve clinical judgments. Despite this controversy, such predictions are requested by the justice system because the decisions are important and socially and legally relevant.

  • How can a prediction be made that a child will be traumatized by testifying in the presence of the defendant?
  • What kind of data are necessary to present in a court of law the prognosis of severe emotional trauma to a child?

The attempt to establish the etiology, nature, treatment, and prognosis of childhood disorders continues to leave most of the major questions unanswered. There is nothing in this limited area of child psychopathology concepts permitting the prediction of serious emotional trauma as required by the Supreme Court.

The effort to protect children from harmful effects of testifying will probably focus primarily on younger children.

There are two problems psychologists must consider in response to the Supreme Court's requirement.

  • The first is the issue of predicting anything given the current state of our science.
  • The second is the ability of psychology to assess the level of trauma in young children with any validity or reliability.

In order to arrive at any prediction, it is necessary to meet two prerequisites.

  • First, there must be an empirically supported theory about the causal variables involved in whatever phenomenon we are interested in predicting.
  • Next, we must have a reliable method for measuring those variables (Meehl, 1973).

We are nowhere near meeting those requirements in relationship to the Supreme Court's ruling that a case-specific finding must be made on the effects of testifying in the presence of the defendant. For most of the contexts in which prediction has been studied, predictability is low for both clinical and actuarial methods, although statistical prediction has been shown to be more accurate than clinical prediction

  • (Dawes, 1990; Dawes, Faust & Meehl, 1989; Meehl, 1954, 1986).

If clinicians attempt to inject some form of subjective judgment, the only effect is to reduce the accuracy of the simple actuarial procedure (Dawes, 1988, 1990).

The second issue in assessing the future trauma to young children is that it is difficult in general to make valid and reliable assessments of young children. Adult criteria of psychopathology cannot be applied indiscriminately to children (Achenbach, 1980; Bemporad & Schwab, 1986). Children must be assessed in terms of their need for return to continued normal development (Trad, 1990).

Meeting the Supreme Court requirement demands a taxonomic category that must demonstrate acceptable validity and reliability.

The DSM-III and III-R (American Psychiatric Association, 1987) represent the best effort to produce taxonomies for childhood and adolescence disturbance. However, there has been continued criticism of the DSM-III childhood and adolescence section.

  • Quay (1986) summarizes multivariate analytic studies bearing on this section and concludes, "There is very, very little evidence from the multivariate literature that supports separate and distinct syndromes of anxiety and depression in children" (p.154).

Yet these are the very behaviors that are most likely to be predicted as showing that a young child cannot testify in the presence of a defendant.

There are few clinical assessment tools that have acceptable levels of validity and reliability for young children. None of the tests with adequate validity or reliability provide information useful for predicting a child's response to testifying.

One of the more astonishing facts about psychology and children is that forensic psychologists continue to use procedures for which there is no demonstrated validity or reliability (Bersoff, 1986). These unsupported procedures include

  • drawings,
  • projective tests,
  • play therapy, and
  • anatomical dolls
  • (Levy, 1989; Terr, 1988; Underwager & Wakefield, 1990; Wakefield & Underwager, 1988).

Can experience enable a psychologist to meet the Supreme Court requirement for case-specific prediction on the effects of testifying?

An APA (1982) task force concluded there was no evidence that professional competence is related to years of experience as a psychologist. Garb (1989) reviewed the research on clinical experience and accuracy of judgments and found no relationship between experience and accuracy. The only effect experience has comes from mastering techniques that have acceptable validity and reliability.

Given all these considerations, a psychologist cannot, as a responsible professional, testify that a child will be so seriously damaged by the sole factor of the presence of the defendant that the use of a videotaped testimony procedure is mandated.

Also, the fundamental ethical requirement not to harm people or to abridge or deny their individual or civil rights is also involved when a psychologist testifies in court. When there is an allegation of sexual abuse, the lives of all individuals involved are affected. Psychologists therefore must ensure that their testimony is based upon credible scientific data. If that cannot be done, the psychologist must avoid giving testimony.

The kind of information that psychology ought to be making available to the justice system is noted by Meehl (1989):

An important kind of expert testimony should consist of a scholarly showing that no trustworthy expertise exists (either side!) in certain areas. But because of widespread scientific incompetence among practitioners, such critical testimony will collide with the customary legal standard ...
If our evidentiary rules do not permit this critical, consensus challenging role for the expert ... then the idea of greatly restricting areas of psychological expertise ... becomes regrettably more appealing. (p 547)

The APA brief encourages overly optimistic concepts of what psychology and psychologists can do. The Supreme Court Ruling in Maryland v. Craig sets up impossible procedures and goals and can only have the effect of further complicating and confusing the attempt to deal fairly and accurately with allegations of child sexual abuse.


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