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Forensic psychology prevents miscarriages of justice … and memory

False recollections can lead to wrongful convictions. Justin Gaurav Murgai

A recent series of articles on The Conversation focused on the value of forensic science in criminal cases.

Many specialities were covered. But what about forensic psychology?

Professionals in this field perform may functions, including:

  • providing psychological assessments and reports for courts and parole boards
  • devising and evaluating appropriate programs for people in correctional facilities
  • appearing in court as “expert witnesses”, and giving professional views on psychological matters.

I would argue they have an important, but overlooked, role in the Australian justice system.

Why? Well, let’s examine the evidence.

Forensic science (in all its guises) has contributed enormously to solving not only crime but also miscarriages of justice.

Exonerations of convictions for major crimes in the United States are commonplace: there have been 270 American DNA exonerations representing a total of 3,471 years in prison – some 17 of these prisoners were on Death Row.

Sadly, practices and laws in Australia relating to the retention and accessibility of DNA by those who believe they are innocent of crimes make similar exonerations unlikely here.

Most states do not allow DNA and other forensic samples to be kept for many years and, when they are kept, access by those alleging a miscarriage is often difficult and time-consuming.

Mistakes happen

Though no-one doubts the value of forensic science in uncovering miscarriages, there’s always the problem of wrongful convictions arising as a result of mistakes made by scientists.

These can occur because evidence is tainted. Contamination can occur at the crime scene, during transportation or in the laboratory.

There is also the possibility of expert forensic witnesses, consciously or unconsciously, becoming advocates for the prosecution rather than impartial experts, as in the Lindy Chamberlain-Creighton trials.

The case, made famous by the 1988 film A Cry in the Dark, dramatically illustrated the erroneous assumptions of some of the forensic scientists presenting evidence for the prosecution.

In such cases, forensic witnesses can exaggerate the strength of their findings.

Protocol Photography

Miscarriages of justice

Miscarriages are not as rare as some may think. Using the conservative and internationally accepted estimate that 1% of all criminal convictions are incorrect, there could be up to 330 people wrongfully convicted in Australia each year for serious (district/county or supreme court) offences.

This figure rises to more than 8,500 if all court appearances (including magistrates’ court) are considered.

The most common reasons for miscarriages occur at the investigatory stage – they include often nebulous factors including tunnel vision, incompetence and, occasionally, corruption by police.

Other reasons include errors in eyewitness identification, confessions of guilt that turn out to be false, deliberate lying by police/prison informants, racial stereotyping and errors by forensic scientists.

Many of these mistakes can’t simply be overturned by the use of DNA or other forensic science evidence.

This is where forensic psychologists come into play.


Forensic psychology

What do forensic psychologists do?

The Australian Psychological Association defines them in the following way:

“Forensic psychologists apply psychological theory and skills to the understanding and functioning of the legal and criminal justice system.

"They often work in criminal, civil and family legal contexts and provide services for perpetrators, victims and justice personnel.

"Forensic psychology encompasses issues such as: the causes, prevention and treatment of criminal behaviour; the psychology of police, the courts and the correctional system; and the contributions of psychological evidence to legal proceedings.”

Forensic psychologists must bear many things in mind.

False confessions are a factor to be considered in criminal proceedings.

Psychologists have done a great deal of work on why people confess to crimes they did not commit, and on the type of interrogations that produce such confessions.

The cases of Andrew Mallard and Kelvin Condren are two examples of Australian murder trials where appallingly-conducted police interviews led juries to assume that a “confession” pointed inextricably to the accussed being found guilty.

In both cases, those guilty verdicts were overtuned on appeal. It was clear in both instances that confusing and incompetent police interviewing techniques led to apparent admissions of guilt.

Memory is another area of concern. Memory conformity refers to a situation whereby a witness’s recollection of events becomes corrupted through discussions with a co-witness, or exposure to other elements of an investigation.

And then we have false memories. In the United Kingdom hundreds of people have been wrongfully convicted because juries and those involved in the legal system relied upon “common sense” when considering issues relating to memory.

Many of these cases involve recovered memories – false recollections of previously unknown childhood sexual or physical attacks, born of the way the person’s therapist conducted interviews.

Seeing and believing

Erroneous eyewitness testimony has been shown to play a significant role in wrongful convictions in the USA.

But Australian laws regarding when expert testimony can be given (and who can give it) make it almost impossible for forensic psychologists to give evidence on how eyewitnesses often incorrectly see events and people that they do not actually see.

This is because the law as it stands assumes juries – “common men and women” in the legal jargon – are quite capable of assessing what witnesses say they saw without expert advice.

Evidence-based research carried out in these areas by psychologists is long-standing and impressive, as even a introductory test in forensic psychology will demonstrate.

Provided forensic psychology is presented with explanations of its limitations – as all forensic evidence should be – and with a sense of humility, courts could reduce the number of miscarriages of justice that occur.

In other words, it’s not only the forensic scientist who has a role to play in freeing the innocent: courts could also benefit from the input of other forensic practitioners.

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