There is admissible, and questions of fact e.g. whether

There is no disputing that both Psychology and Law endeavour
to understand human behaviour, however achieving ‘justice’ is the aim of the
law, whereas psychologists have many concerns, including the search for
scientific truth (Roberts, 2015). Since the 1900s it has commonly been asserted
that experimental psychology is required to inform legal procedures (Feigenson,
2010). For example, Loftus & Palmer (1974) sparked the research that
demonstrated the incredible fallibility of memory. While this brought into
question the criminal justice systems reliance on eyewitness testimony (EWT)
(Wells, 1978) it also fuelled decades of research on problems associated with
EWT in the criminal justice system. Other research by Kassin & Sukel (1997)
also demonstrated that people tend to falsely confess to crimes they do not
commit, which emphasised the role police interrogations play in influencing
false confessions. Importantly, these findings did not only expand
psychological knowledge, but revealed the benefit it could have to society by
informing the legal system (Hall, Cook, & Berman, 2010). A common criticism
by the law however, is the fact that psychologists rely too much on scientific
methods (Hall et al,. 2010). Conversely, Psychology is sceptical of the law’s
reliance on common-sense generalisations (Rogers, 2015). Therefore, it is
evident where OLGOFFS broad conclusion
regarding conflicting ideologies came from, as it is demonstrated in theory,
and in practice. This will now be demonstrated by referring to expert
psychological witnesses in the courtroom.

At trial, the courts are responsible for resolving questions
of law e.g. whether certain evidence is admissible, and questions of fact e.g.
whether the accused intended to commit the act in question (Edkins et al,. 2017).
Commonly, questions of fact arise that cannot be answered without expert assistance. In these circumstances,
psychologists serve as expert witnesses in criminal and civil cases and provide
expert opinion, expert evidence, and expert advice (Cutler & Kovera, 2011).
Regardless of the benefits, and knowledge expert psychological testimony can
provide, the courts tend to be cautious when deciding whether to accept this
evidence at trial, and this is
where the conflicts can be explained. Firstly, expert evidence is
different from other types of evidence produced in court as it is based on
judgements and observations obtained after the crime (Cutler & Kovera, 2011).
As this evidence/material is part of a distinct discipline, it is arguably
beyond the laws realm of ‘common-sense’ and what is known to the average layperson
within the court (Darley, 2001). This elicits conflict as lawyers expect facts
to be agreed upon. That is, Laws are passed to distinguish between fact and
opinion (Hawkins & Hawkins, 1999). In psychology however, it isn’t always
easy to make this distinction (Edkins et al, 2011). While psychologists can
provide a fully reasoned and objective opinion/conclusion, this is drawn from
scientific fact, comparisons and continuums whereas lawyers in the courtroom
tend to think in dichotomies (Edkins et al, 2017). Thus, psychology tends to
establish evidence in terms of probability and comparability within the
population, while the law is interested in establishing the trier of fact
through absolutes such as true or false, yes or not (Edkins et al, 2017). Therefore,
tensions arise when attempting to put law within a scientific framework because
it demands certainty and science cannot grant it (Day, 2011).

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aforementioned, the purpose of criminal and civil trials is to decide and
establish issues of fact and law (Roberts, 2015). While expert testimony
will be ruled admissible if it assists the trier of fact, in the US and the UK an
Adversarial system is adopted and, it is the judge who decides if testimony is
relevant and reliable. The expert
evidence must be necessary to help the judge/jury aid their decision making. In
the US the Daubert Standard; Kumho Tire CO. v. Carmichael is applied which outlines that
even in cases where psychologists have the evidence to aid decision making
within the trial, there are numerous reasons that allow the court/judge not to
permit the testimony (Ogloff & Cronshaw, 2001). Although this is
ill-founded, cases have also been recognised whereby psychologists have been
considered to have gone beyond the limits of their expertise. For instance, the
Mohan (1994) case in America who was deemed not fit the ‘profile’ of a
stereotypical sex offender. While a psychologist is expected to be objective at
all times i.e. an educator (Stein, 2003), within their role as an expert
witness they are usually employed by a side of opposing counsel. As such, they enter the adversarial system
which can arguably invoke them to be subjective. For instance, Ogloff &
Cronshaw (2001) reported the misinterpretation of findings in favour of
the employing counsel which resulted in mistaken allegations and a wrongful
conviction. Thus, although the aforementioned criteria places the judge as
superior to expert witnesses and establishes tension between the two
disciplines, from the side of law this is arguably a means of reducing tension
by preventing psychology from becoming entangled within the adversarial nature
of the legal system as it
removes their subjectivity where appropriate. Alternatively, judges can
refuse expert witnesses if they believe their input will put predominant focus
on conviction. For instance, Mckinddrel Vs the crown (2005). Thus, judges have
on some instances been regarded as being subjective over conviction/justice, as
well as the psychologist’s objective role to establish the truth/their opinion
(Guthrie & Rachlinksi, 2005).

Domino, Stradiot & Webinger (2015) have insisted this is
because judges have a limited understanding of scientific methods. Additionally,
Vidmar (2010) prevails that judges are not equipped to fulfil this duty because
it is a role beyond their training and expertise. He demonstrates this opinion of Judges being ‘amateur
scientists’ because they do not rely on the specific criteria outlined
in Daubert, and instead tend to base (in)admissibility decisions on
characteristics of the expert including education, experience and skill (Vidmar,
2010). Thus, it can be suggested that the tension between psychology and law is also due to the
inability to transmit knowledge between the professions. Too often legal
professionals do not know, or do not understand psychological research findings
(Guthrie & Rachlinksi, 2005). Therefore, the previous theoretical disagreements,
and practical disputes regarding the interpretation of data, and admissibility
of information is arguably legitimate. However, to further the field of law,
and the fundamental principle of science, the two disciplines must comply. That
is A), the courts need to understand that psychology, as an empirical science
can assist the triers of fact through their imperative knowledge (Kabzi?ska & Habzda-siwek, 2014).
Additionally B), psychologists need to take on board the Law’s concern that
they must only provide information to the court that is, to the their
understanding, reliable (Day, 2013). Potentially, if point A is fulfilled,
point B might not be as much of a concern as the law would become more open
minded when regarding expert testimony. Overall, these safeguards are only a
starting point, but nonetheless should help the triers of fact to be
appropriately sceptical of any evidence that is appointed within the courtroom. 


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