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Ellsworth A. Fersch, J r .
3 Ethical Issues for Psychologists
in Court Settings
There is little doubt that all of the participants in the criminal justice system call upon their own notions of psychology in an effort to see that justice is done in the courts or at least to see that their own side wins. Even the adversary system is said to embody important psycholog- ical principles: the importance of confronting one’s accusers, of being able to cross-examine witnesses, of having evidence presented orally by the individuals concerned, and of preventing hearsay testimony. And the components of the court setting-including the traditional sym- bols, the location of the participants, and even the judge’s attire-are said to spring from psychological truths about fairness and the ap- pearance of fairness (American Friends Service Committee, 1971; Donnelly, Goldstein, & Schwartz, 1962; Freedman, 1975; Saks & Hastie, 1978).
The role of commonsense psychology is un- limited in the courts. More recently, the role of the specific scientific and professional field of psychology has been increasing in the courts. When the findings of scientific psychology back the practices of commonsense psychology, there is of course no conflict, and hardly any note is taken of the relation between the folk wisdom and the scientific findings. It is only when the two conflict that there is much stir: Thus, in questions of eyewitness identification (Loftus, 1979) or of jury selection (Saks, 1976), for example, scientific psychology is set against commonsense psychology. While the courts rely
on eyewitness identification, scientific psychol- ogy seems to say that such identification is shaky and unreliable; and while lawyers select jury members through their own collective psy- chology, scientific psychology seems to say that such methods are haphazard and potentially self-defeating. It is primarily in these instances of conflict between the traditional and newer ideas of psychology that psychologists, those specifically trained in the science and profession of psychology, find their roles in court settings.
It is no wonder, then, that psychologists often find themselves in the center of controversies in the criminal justice system as a whole, and especially in court settings (Brake1 & Rock, 1971; Fersch, 1979, 1980; Saks & Hastie, 1978; Stone, 1975). For psychologists are often used in the courts to challenge accepted truths, to implement new truths, and to help as well as undermine the system. They are asked to help the system by backing one defendant’s testimony, by examining potential witnesses, by determining the competency of a defendant to stand trial, or by explaining such matters as perception and memory to the court. They are asked to undermine the system by challenging some of its basic assumptions-the value of eyewitness identification, the possibility of psy- chologists’ predicting dangerousness, the fair- ness of jury selection and composition, the im- pact of procedures in the court-sometimes without offering any proven substitutes in their place. Whether they present their findings
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http://dx.doi.org/10.1037/10051-003 Who Is the Client? The Ethics of Psychological Intervention in the Criminal Justice System, edited by J. Monahan Copyright © American Psychological Association. All rights reserved.
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through articles or are allowed into the those who seek their services or of any human courtroom itself to present their views, psychol- ogists have increasingly become involved in the criminal justice system and, of interest to us here, in the courts (Brodsky, 1973; Fersch, 1980).
As already noted, psychologists face many problems in the courts because of the tasks they are asked to perform by the system itself or by participants within the system. But there is another important set of problems they face once they become involved in the criminal jus- tice system. That set of problems arises from within their own profession, for many ethical issues face psychologists in court settings. A close look a t those ethical issues forms a major part of this chapter.
Every profession has its set of ethical stan- dards, and the psychological profession is no exception (Casebook on Ethical Standards, 1967; Ethical Standards of Psychologists, 1953, 1963, 1977, 1979). The Ethical Standards of Psychologists are continually revised, and the current set .was approved by the American Psy- chological Association’s Council of Representa- tives on January 19-20, 1979. While the Ethical Standards of Psychologists are quite useful in the usual situations psychologists encounter, the special nature of the court and its power of coercion create especially complicated and troubling ethical issues for psychologists that these standards often do not go far toward resolving.
The preamble of the Ethical Standards both sets the goals for psychologists and suggests the difficulties that psychologists in court settings have:
Psychologists respect the dignity and worth of the individual and honor the preservation and protection of fundamental human rights. They a r e committed t o increasing knowledge of human behavior and of people’s understanding of themselves and others and t o the utilization of such knowledge for the promotion of human welfare. While pursuing these endeavors, they make every effort t o protect the welfare of
being or animal that may be the object of study. They use their skills only for purposes consistent with these values and d o not know- ingly permit their misuse by others (Ethical Standards of Psychologists, 1979, p. 1)
Admittedly, these prefatory comments are broadly drawn. Yet adherence to these general standards by psychologists working in the courts is very difficult, for courts can impose sanctions that may fundamentally affect those who receive psychological services. Even these general statements make plain the dichotomy between those who seek the services of ps9chol- ogists and those who are the objects of study. The latter group, interestingly, includes human beings as well as animals, for in a court setting, the person may be made an unwilling object of study.
Further, psychologists participating in an ad- versary system often cannot adequately protect their work from misuse. The essence of an ad- versary system is that one side of a case is challenged by the other side. And psychologists may in fact lend their knowledge to misuse, whether knowingly or unknowingly, simply by participating in procedures required by law: When psychologists predict dangerousness, for example, they may be misleading themselves and others and giving their own guesswork the protective coloration of scientific psychology (Dix, 1975; Fersch, 1980; Laves, 1975; Mona- han, 1978; Shah, 1976, 1978; Stone, 1975; Zi- skin, 1975, 1977).
Another set of problems arises because both the criminal justice and the mental health (psy- chological/psychiatric) systems identify social deviance and implement social control yet rest on very different assumptions about human na- ture (Monahan, 1975, 1976; Morse, 1976, 1978; Stone,’ 1975; Szasz, 1961, 1963, 1965, 1977, 1979; Tapp, 1976). The criminal justice system, of which the court is a part, (a) rests on the assumption that individuals exercising their free will are capable of choosing to do or not to do what the law commands; (b) has at its aims the
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punishment (and sometimes the isolation from the community) and rehabilitation of wrong- doers, deterrence of them from future wrong- doing, and deterrence of the general public from wrongdoing; and (c) is said to spring from the moral convictions of the community (Don- nelly et al., 1962; Kittrie, 1971; Powers, 1973; Wilson, 1975). On the other hand, the mental health system (a) rests more on the assumption that the actions of individuals are determined by their early lives or by a combination of their early lives and their environment; (b) has as its aim the treatment of mentally ill persons; and (c) is said to spring from concepts of mental health and social well-being (Stone, 1975).
While these two major systems, criminal jus- tice and mental health, are based on very dif- ferent theories and practice very different procedures, they are said to act in concert in the court setting. Whether this is even possible is again a question being increasingly discussed. What is clear is that the courts have come to rely more upon psychologists and other mental health personnel and that the law incorporates many references to them and gives them specific functions in the court setting. In fact, Kittrie (1971, p. 1) has termed this movement within these two systems “the divestment of criminal justice and coming of the therapeutic state.”
The courts are one of the major focuses for discussion of this movement because it is often there that decisions are made on whether defendants will be dealt with through the criminal justice system or through the mental health system. It is there that their rights are protected or not protected. It is there that they have a chance t o air their views or are prevented from doing so. And it is there that the traditional ideas of guilt and innocence, punishment and rehabilitation, mental health and mental illness, liberty and confinement, are tested and implemented.
It is also in the courts that the differential status of psychologists and psychiatrists is most noticeable. Statutes and court opinions limit the
making of some determinations in courts to psychiatrists; psychologists in such instances are excluded by law. And psychiatric organiza- tions seek to limit further the role of psychol- ogists and other mental health professionals and to expand the exclusive roles of psychia- trists. Problems arise for psychologists, then, not only between the criminal justice and the mental health systems but within the mental health system itself.
Before I conclude this introduction, the rela- tion between the criminal justice system and scientific psychology needs to be put in a larger perspective. While we have witnessed decreas- ing use of the criminal justice model and increas- ing use of the psychological model in dealing with antisocial behavior, we are currently in a period of much dispute about what stance the law should take vis-a-vis lawbreakers. Three different positions are advanced (Fersch, 1979, 1980).
The first position, which I call the traditional one, is that the criminal justice system ought to deal with wrongdoers through accusation, trial, adjudication, and punishment. This position ac- cepts the notion that lawbreakers choose to commit their offenses, views punishment as an acceptable community response, and uses com- monsense psychology in its deliberations. It feels that scientific psychology, psychologists, and psychiatrists have little to contribute to ef- fective law and order and that matters end with the conclusion of the criminal process.
The second position, which I call the liberal reform one, is that the criminal justice system is harsh, predicated on false assumptions about human nature, blind to the true causes of crime, and less than morally acceptable. This position accepts the notion that individuals are not free to commit their offenses but do so out of deeply felt injustice occasioned by racism, poverty, and emotional deprivation; views punishment as unacceptable and individual rehabilitation and social amelioration as proper goals; and feels that scientific psychology, psychologists, and psychiatrists have much to contribute to effec-
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tive assessment and treatment of defendants and offenders, to court proceedings, to exten- sive social legislation, and to crime prevention and limitation (Bazelon, 1976; Cryan, 1977; Flaschner, 1971; Joost & McGarry, 1974; Loftus, 1979).
The third position, which I call the rethinking position, attempts at the outset to return to basic questions and to reason through the prob- lems of deviance and control and the many proposed solutions to them. Thus it asks such questions as what harm individuals’ acts cause t o specific individuals o r t o society, what methods are available to control them or that harm, what analogous situations there are and how they are handled, what important prin- ciples are at stake and what priorities there ought to be among them when they conflict, how each potential course of action functions and what its consequences are. This position seeks to balance the legal, psychological, socio- logical, and philosophical considerations in- volved in punishment and rehabilitation, denial of liberty, and forced treatment. ,The rethinking position attempts to look from the perspectives of the offender, the court, and society, beyond labels and customs, to see what is actually hap- pening and to ask whether it should be happen- ing. It accepts the criminal justice model, al- though it proposes changes and differentiates between situations in which psychology, psy- chologists, and criminal laws are useful and situations in which they are not (Fersch, 1979, 1980; Morse, 1976, 1978; Schur & Bedau, 1974).
Whatever position one adheres to, it is be- coming increasingly evident that the current system neither punishes most offenders nor of- fers true rehabilitative services. Confused with regard to its goals and trapped between two conflicting views of human nature and of individual responsibility, the system provides neither good psychological lessons to the citizens nor safety to the community. It must do both if it is to be effective.
Current Roles and Functions of Psychologists in Court Settings
Having introduced the major problems in the relation between the criminal justice system and psychology and the various positions advanced to solve them, in this section I describe briefly the many current roles and functions of psy- chologists in court settings. To ease comparison of these functions with those of psychologists in other parts of the criminal justice system I have grouped them under five main headings suggested elsewhere (Brodsky, 1973) and used in Chapter 2 of this book: assessment, treatment, training, consultation, and research.
Assessment
Whether employed on a regular basis by a court or mental health center, employed for a particular case by a defendant, prosecutor, or judge, or asked for general information in a case, psychologists may function before the trial, during the trial, or after the trial. While currently some of these functions may only be performed in some jurisdictions by psychia- trists, the trend is toward letting psychologists perform them as well. One of,the latent func- tions of psychologists in court settings may be to point up where psychologists’ services can be effectively used.
Pretrial
One of the most significant interactions be- tween the criminal justice system and mental health system occurs in the so-called compe- tency evaluation: the determination of defendants’ abilities to understand the charges against them and to cooperate with their counsel in their own defense. Anyone can raise the question of competency-the judge, the defense, the prosecution-and once it is raised, proceedings are stopped while a psychologist, psychiatrist, or other mental health professional
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examines the defendant for competency. These evaluations vary greatly and may take anywhere from a brief period for an interview to an extended period of incarceration of the defendant in a mental hospital. At issue is whether defendants a t the time of their trials are able to proceed effectively with their cases (Bendt & Balcanoff, 1972; Laboratory of Com- munity Psychiatry, 1973; Fersch, 1979; Leifer, 1962-1963; Lipsitt, Lelos, & McGarry, 1971; Roesch & Golding, 1977; Stone, 1975).
Another point of interaction between mental health and criminal justice is often confused with the competency evaluation, and though it happens far less frequently, it is, in the public mind, the prime example of psychologists or psychiatrists at work in court settings: determi- nation of criminal responsibility. This determi- nation does not involve defendants’ states of mind at the time of their trials. Rather, it in- volves the defendants’ states of mind at the time of the alleged offenses. Most often, such inquiry is made in cases where the defendant is plead- ing not guilty by reason of insanity or where the crime was particularly horrible. The issue is whether the defendants were mentally ill at the time of the acts and whether as a product of that mental illness they lacked criminal re- sponsibility (Dix, 1971; Fersch, 1980; Fin- garette, 1972; Goldstein, 1967; Monahan, 1973; Stone, 1975).
Psychologists in court settings also determine the dangerousness of defendants, either for the purposes of confining dangerous, mentally ill persons against their will in a hospital or of recommending to the court other appropriate measures to be taken (Dix, 1975; Monahan, 1978; Shah, 1976, 1978).
Further, psychologists aid judges in deter- mining whether juveniles who have committed serious crimes should be dealt with as adults or as juveniles. Questions about emotional factors precipitating the alleged acts or about the potential that the juveniles show for rehabilita- tion often need to be answered (Bayh,1977;
Cohen, 1977; Corbett & Fersch, 1979; Faust & Brantingham, 1974; Fox, 1970, 1977; Marino, 1977; Platt, 1977).
Psychologists are also asked to determine the potential for rehabilitation of persons before the court, often first offenders or persons ac- cused of using drugs or alcohol or of harming family members. Here the question is whether the defendants should proceed to trial or should be diverted into some special program the court or other agency might have for such indi- viduals. Psychologists are often asked whether a particular program would fit the individual and whether the individual has the capacity to profit from the program (Commonwealth of Massachusetts, Note 1).
Another function that psychologists and so- ciologists are increasingly being called upon to perform is helping i n jury selection. Psy- chologists are retained by one of the sides in the case, usually the defendant’s, and assist the lawyer in determining who to challenge from among the potential jurors (Saks, 1976; Saks & Hastie, 1978).
Finally, psychologists might be asked to assist in plea bargaining to assure (a) that defendants are able to participate in the ne- gotiations, (b) that the plea bargain struck is consonant with the psychological functioning of the defendant, and (c) that the bargain is satis- factory in a general sense. This, however, seems to be done only rarely (Saks & Hastie, 1978).
During Trial
The most obvious role of psychologists during trial is to appear as expert witnesses. Psy- chologists can be witnesses for the prosecution or for the defense or witnesses called by the court. As experts, psychologists can testify about the results of psychological research on such topics as perception, sensation, confes- sions, eyewitness identifications, and mental states or about the results of their clinical evaluations of defendants on such topics as mo-
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tivation or mental status at the time of alleged offenses or at the time of the trials. Psy- chologists can also rebut the testimony of psy- chologists or psychiatrists employed by the op- posing side by damaging their credibility or calling into question their research, experience, or judgment (Buckhout, 1974, 1976; Ennis & Litwack, 1974; Levine & Tapp, 1973; Loftus, 1975, 1979; Ziskin, 1975, 1977).
Post trial
The major assessment function of psychologists after trials is in connection with the presentence evaluations of defendants: Psychologists can contribute information concerning the psycho- logical functioning of defendants and their potential for rehabilitation.
Assessment before, during, and after the trial can be done through interviews, with the aid of various psychological tests, or through some combination of methods. Diagnostic services are equally applicable to juveniles and adults, and in assessing defendants, especially juveniles, psychologists often assess the defendants’ families as well. While most assessment con- cerns alleged offenders, it is obvious that in one important area, jury selection, assessment is of individuals not accused of criminal activities and is undertaken in a more indirect way than the examination of defendants.
Treatment
As with assessment, treatment can take place at different stages of the criminal process. Usually it takes place after the trial as part of the dis- position, but it can also take place before the trial (Cryan, 1977; Fersch, 1974; Gorelick, 1975).
Pretrial
Before the trial a major treatment effort might be directed toward restoring defendants to competency to stand trial. This might be done
through outpatient treatment with or without the use of medically prescribed drugs, or it might be undertaken in a hospital setting.
Another function increasingly assigned psy- chologists in court settings is provision of treat- ment for those individuals who have been diverted from trial and referred for treatment in lieu of trial. Often such diversion is predicated on these individuals’ successful completion of treatment. Their treatment is much the same as the treatment given to defendants after trial, ex- cept that the former group may have t o return to stand trial if they do not cooperate.
Posttrial
Posttrial treatment of offenders constitutes one of the largest functions of psychologists in court settings. ’Many offenders receive either proba- tion or a suspended sentence for their offenses, and courts seek to require some offenders to enter treatment programs as part of their pro- bation or as a condition of the suspension of their sentence. The treatment varies from inten- sive drug, alcohol, or behavior modification programs to weekly visits to a psychologist at court, to intermittent contact with some social service agency. Treatment is also offered at times to the families of juveniles and of some other offenders as well.
Training
Training is a third major function of psychol- ogists in court settings. Often psychologists provide direct training and supervision to other mental health personnel-social workers, stu- dent psychologists, drug and alcohol coun- selors-working within the court setting or in agencies assisting the court. Psychologists provide training programs for probation of- ficers on such topics as adolescence, forms of treatment, and types of mental illness. They also provide informal training around specific cases and issues, help translate professional literature for practical uses, and answer the
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questions of staff and clients. Sometimes they provide direct training to parents and families of offenders, suggesting behavioral methods to improve relationships and informing families of the workings of the criminal justice and related mental health systems.
Consultation
Psychologists in court settings have the op- portunity and capacity to provide consultation to a number of different groups. To judges they can provide consultation on instructions to ju- ries, judicial decisions, and the outcomes of cases; they can clarify mental health issues and help judges understand the complex rela- tionships between the criminal justice and mental health systems; and they can contribute an amicus curiae brief when one is needed. To lawyers, both for the prosecution and the defense, they can provide consultation on mental health matters as well as on general matters of scientific and professional psychol- ogy. To probation officers they can provide consultation on referrals appropriate to the needs of offenders. And t o outside agencies, such as schools, youth agencies, and drug and alcohol programs, they can provide information helpful to these agencies’ programs and better understanding of the court. In all of these consultative relationships, psychologists can answer questions, suggest lines of inquiry, help interpret responses, and research important issues.
Research
Whatever assessment, treatment, training, or consultative services psychologists perform in the courts, they also have the opportunity to conduct research. While they may not have the freedom to design experiments as they might in more academic research, they can compare groups, look at outcomes, parcel out the factors that seem influential, and trace the interaction of the criminal justice and mental health systems.
Thus, with offenders, psychologists can inves- tigate the different dispositions that are made, the relation between offenders’ characteristics and dispositions, the nature of inquiries into competency and responsibility, and the effects of treatment. With regard to the adversary system itself, they can look into the processes of decision making-whether by judge or by jury, the issues concerning eyewitness identification and evidence, the selection and instruction of juries, and jury verdicts (Saks, 1977; Sales, Elwork, & Alfini, 1976; Tapp, 1976). Beyond these often-suggested topics, psychologists can of course conduct research on any facet of their roles and functions in court settings.
Another Function
One other function of psychologists in court settings ought to be mentioned, a function latent wherever psychologists appear in the criminal justice system: validation of the criminal justice system and allying of it with scientific psychol- ogy. Thus, the presence of psychologists in the courts says that the criminal justice system is concerned about the personality characteristics of defendants and offenders, wants to imple- ment treatment, recognizes mental illness, provides interaction with the mental health system, and incorporates psychological findings into its practices and theories (Kittrie, 1971; Szasz, 1977, 1979).
Some psychologists feel that their presence in court settings would validate a system they consider inadequate, if not immoral, and thus they do not participate. Others feel that they can be of help to a greater or lesser degree and participate to the extent that they feel com- fortable. Finally, some psychologists work in the criminal justice system through the courts both by performing their functions and by sug- gesting, through writing, training, or consulta- tion, major ways of revamping it.
As has become clear through these brief descriptions, psychologists are asked to perform many different tasks in court settings. The next
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section details the ethical issues that arise in the performance of those tasks.
Examples of Ethical Issues
Many ethical issues must and do arise in the course of psychologists’ work in court settings. Some general ethical issues were mentioned briefly at the start of this chapter. In this sec- tion, using the most recent version of the Ethical Standards of Psychologists ( 1 979), I consider specific ethical issues arising from the roles and functions of psychologists in court settings. These issues can be grouped under the following major headings: representations of the adequacy or effectiveness of psychological programs or services, representations of the competence of the psychologist, confidentiality, responsibility to the client, and design and use of research.
Representations of the Adequacy or Effectiveness of Psychological Programs or Services
A major ethical issue involves the usefulness of the programs psychologists support and the services they perform in court settings. For un- less the assessment, treatment, and other services they provide are useful, psychologists are misrepresenting these services, and such misrepresentation is unethical. While the ques- tion of usefulness is simple, attempting to answer it is exceedingly complex.
In its broadest sense, for example, the ques- tion about the efficacy of treatment i n court settings is similar to the question about the ef- ficacy of treatment in other criminal justice set- tings. And since there is a lack of confirming research about the effectiveness of forced treat- ment (Martinson, 1974), for psychologists in court settings t o represent their treatment services as adequate and effective raises many ethical questions.
Similarly, psychologists’ representations of their assessment services as adequate and effec- tive raise many problems. Some important literature, for instance, addresses the impossi- bility of determining psychosis at the time of the interview (Rosenhan, 1973; Wolitzky, 1973), let alone criminal responsibility at a time in the past; other literature states that the questien of criminal responsibility is a matter of values and that psychologists or psychiatrists are speaking to the matter only from their own ethical and moral values and not from their purported expertise (Szasz, 1963, 1965, 1977, 1979). Still other important articles and books assert that predictions of dangerousness and violence are not within the province of psychologists or psy- chiatrists (Dershowitz, 1969; Monahan, 1975, 1978; Stone, 1975). If this is the case, then professionals who represent such assessments as adequate or effective are misleading the recipients of this service.
Two other problems relate to psychologists’ services in assessment and treatment. One arises from the fact that psychologists may present a single service as if it were a multiple service, as in the matter of diagnosis. When various treatment or rehabilitative services are not available t o defendants or offenders, psy- chologists will sometimes provide extensive diagnostic work-ups. Ostensibly a prelude to service, these work-ups become the only service. Even if the diagnostic services themselves were adequate and effective, their use without back- up services often constitutes indulgence in make-work on the part of psychologists.
The other problem is that psychologists may be acting illegally in a portion of their work. This issue arises especially in questions of competency to stand trial. While such questions are posed in psychological or psychiatric terms, studies have shown that the great majority of those defendants sent to mental hospitals for competency evaluations a r e sent for socio- logical, not psychological or psychiatric, rea- sons (Bennett & Matthews, 1968; Fersch, 1979;
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Roesch & Golding, 1977; Stone, 1975; Boyer, Fersch, & Rolde, Note 2).
To the extent that psychologists participate in this process they are participating in illegal practices, whether deliberately or unknowingly. If deliberately, they are using the label of mental illness to justify the incarceration of in- dividuals because they have no place t o go, or because they are wayward, or because it is easier to provide an alternative disposition for them through the mental health system. If unknowingly, they are representing their ser- vices as adequate and effective while at the same time showing that they are not. Either way they would be acting unethically.
Some of the Ethical Standards of P s y - chologists (1979) are helpful to psychologists practicing in court settings and are discussed in the next major section of this chapter. Others, however, are not. Principle 3, Moral and Legal Standards, for example, says, in part, “As em- ployees, psychologists refuse to participate in practices inconsistent with legal, moral and ethical standards regarding the treatment of employees or of the public” (Principle 3b, p. 2). But as has already been noted, the complex interactions between the criminal justice and the mental health systems, the use of psycho- logical and psychiatric terminology to promote sociological and cultural goals, and the ad- versary nature of the criminal justice system make following this mandate quite difficult.
The Ethical Standards state further, “In pro- viding psychological services, psychologists avoid any action that will violate or diminish the legal and civil rights of clients or of others who may be affected by their actions” (Prin- ciple 3c, pp. 2-3). Forcing presumed-innocent defendants to speak openly with court-em- ployed psychologists who will report back to the courts the mental status of the defendants, and perhaps ancillary matters as well, may vio- late the defendants’ fifth-amendment rights against self-incrimination. It may also violate the principle that defendants may have their
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lawyers present while being questioned by such inimical personnel as the police. Psycholo- gists may not see themselves as inimical to defendants, and they may not want lawyers present who will counsel defendants to remain completely silent, interrupt every question to ask psychologists what they mean by it, or invoke various privileges. But while psychol- ogists may not see it this way, they may be tak- ing action that will diminish the legal and civil rights of their clients.
In other words, the broad sweep of the Ethical Standards, while seeming to resolve these difficult issues, does not, Taken at face value, Principle 3 precludes psychologists from performing many of their most-used services in court settings. It has been argued that they should be precluded from performing them, and that, in effect, the Ethical Standards applied as written should cause a rethinking of the role of psychologists in the courts.
Similarly, Principle 4 of the Ethical Stand- ards conflicts with the adversary nature of the criminal justice proceeding. It says in part, “Psychologists present the science of psychol- ogy and offer their services, products, and publications fairly and accurately, avoiding misrepresentation through sensationalism, ex- aggeration or superficiality” (Principle 4g, p. 4). Yet psychologists who testify in court find themselves in the position of desiring or being forced to exaggerate their testimony and its certainty in order to advance their side’s case. The spectacle (and unfortunately it is too often just that in my estimation) of equally qualified psychologists or psychiatrists testifying in diametrically opposed fashions a s t o some defendant’s mental status, criminal responsi- bility, or potential for rehabilitation suggests to the public at large both the inaccuracy of clinical judgments and the misrepresentation that exaggeration fosters.
Finally, Principle 8, Utilization of Assess- ment Techniques, states that persons tested have the right to know the test results and how
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they were arrived at. It provides for exceptions when they are explicitly agreed upon in advance “as in some employment or school settings” (Principle 8a, p. 6). It leaves unstated the prob- lem arising from tests that are ordered by courts, not agreed upon in advance, and not explained to the persons tested. This principle also states that “Psychologists strive to insure that the test results and their interpretations are not misused by others” (Principle 8c, p. 6). But again, in an adversary situation, the matter leaves the control of psychologists. Try as they might, in many instances psychologists cannot avoid having their Gords overshadowed by those of lawyers and others who have varying views of the material and its potential use in their cases.
As already demonstrated, the representation of psychological programs and services as ade- quate and effective poses many important ethical issues. Many of the Ethical Standards are quite applicable for psychologists working independently or at least working in settings without the inherent conflicts, diversified roles, and multiple functions provided by the court setting. But for psychologists working with in- voluntary clients in court settings, many of the Ethical Standards are of little help.
Clients can, of course, exercise their free judgment however they wish. If psychologists represent that they can pick juries that stand a high chance of acquitting defendants, the defendants are free to contract for these psy- chologists’ services or not. Consumer protection principles apply here; and lawyers are often willing, when clients can afford it, to experi- ment and try unusual or extreme procedures as extra precautionary measures.
The ethical problems arise primarily when the services are not wanted and are forced on persons, when the adversary nature of the criminal justice proceedings in courts sets one psychologist against another, or when psychol- ogists are mandated by law to do what the Ethical Standards and another part of the law forbid them to do. Needless to say, psychol-
ogists find themselves in real binds. Increas- ingly, libertarian-minded psychologists and psy- chiatrists, civil rights lawyers, and others are pointing out these binds, increasing psychol- ogists’ awareness of them, and forcing the psy- chologists to make difficult choices of which they may earlier have been relatively unaware (American Friends Service Committee, 1971; Annas, 1975; Donaldson, 1976; Ennis & Siegel, 1973; Morse, 1976, 1978; Szasz, 1963, 1977, 1979).
Representations of the Competence of the Psyc hoiogist
Closely related to psychologists’ representations of the adequacy of psychological programs or services are psychologist’s representations of their own competence. Just as the essential question in the preceding section was how useful the programs and services are, the question here is what a psychologist can do.
But we have already seen that there are many problems relating to psychologists’ representa- tions of their competence. Researchers have examined many of the tasks psychologists perform in court settings (Saks & Hastie, 1978), and psychologists’ ability to predict vio- lence or dangerousness, to treat people under coercion, to determine competency, and to assess criminal responsibility have all been seriously questioned. Further, the dual function of psychologists in court has been discussed and the conflict between their roles as experts and their roles as advocates investigated. The ques- tion of whether their competence as experts is compromised by their abilities as advocates or even by their position as advocates has also been raised. Finally, some have questioned whether much of what psychologists profess to be their psychological competence is not really psychological at all but instead philosophical, encompassing their own sets of values and beliefs, on, for example, rehabilitation, criminal responsibility, and the desirability of a mental
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health rather than a criminal justice response to antisocial acts.
Principle 2, Competence, of the Ethical Standards deals with the problem by stating in part, “Psychologists recognize the boundaries of their competence and the limitations of their techniques and only provide services, use tech- niques, or offer opinions as professionals that meet recognized standards” (p. 2). Yet the lat- ter phrase, referring to psychological standards, raises a problem, for there are times when the standards of law differ from those of psychol- ogy, and psychologists cannot meet both sets of standards. It is in these complex and shadowy areas that the true ethical dilemmas of psychol- ogists in court settings are found.
Further, psychologists naturally want to pub- licize the value of scientific psychology and ad- vance its influence. But in a setting that naturally pits some testimony against other testimony, it is difficult for psychologists ade- quately to draw the line between advocacy and self-aggrandizement, or between their competence as informed, capable, responsible citizens and their competence as psychologists. Ethically, psychologists ought to strive to dif- ferentiate these two important roles and to state when they are actually filling the former role al- though employed in the latter role. Such self- limitation can go far toward resolving the ethical dilemmas encountered by psychologists at work in court settings.
Confidentiality
The ethical issues surrounding the matter of confidentiality turn on the question of to whom the psychologist is obligated. In the typical psychologist-client relationship, the client is at liberty to retain the psychologist, and the psy- chologist is obligated to the keep the client’s confidences with certain exceptions. If clients, for example, want to collect on insurance, psy- chologists will have to inform the insurance company of length of treatment, diagnosis, general progress, and related matters. Clients
knowingly waive their rights to the psychol- ogist’s confidence in this case. Of course, clients are coerced to a certain extent, for money plays a large part in such decisions. But the confi- dentiality is waived only to a limited extent, and the client retains control over the amount of the waiver.
Another exception is court-imposed. If psy- chologists learn in the course of their work with clients that the clients are about to harm some third person, they have an obligation to break confidence and to report the matter (Curran, 1975; Tarasoff v. Regents of the University of California’). The Ethical Standards reflect this legal mandate. Section a of Principle 5, Confi- dentiality, says, “Information received in con- fidence is revealed only after most careful de- liberation and when there is clear and imminent danger to an individual or to society, and then only to appropriate professional workers or public authorities” (p. 4). The ethical dilemma faced by court psychologists is, of course, lessened in some ways by their readily ac- knowledged court affiliation. However, it is increased in other ways because studies have shown the difficulty, if not the impossibility, of psychologists’ predicting dangerousness to an individual, let alone to society.
Further ethical dilemmas appear because of the uncertainty of the psychologist-client rela- tionship. Defendants, forced to meet with psy- chologists and unaccompanied by their lawyers, are caught in a bind. Wishing to say nothing, defendants may perceive, usually rightly, that refusal to cooperate will be held against them while cooperating may well violate their fifth- amendment constitutional rights and may in- volve psychologists in an ethical violation. Sec- tion b of Principle 5 states that “every effort should be made to avoid undue invasion of pri- vacy” (p. 4). It can be argued both that a forced interview by its very nature represents an undue invasion of privacy or that careful questioning
’ Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 131 Cal. Rptr. 14, 551 P. 2d 334 (1976).
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and avoidance of certain topics prevents such an invasion. Section e of Principle 5 raises a serious problem concerning publication by psy- chologists, for in court settings and especially with well-known cases, adequate disguising of the identity of persons is difficult.
Finally, the most serious ethical dilemma concerning confidentiality is reflected in the concluding statement of Section d of Principle 5 : “The psychologist is responsible for inform- ing the client of the limits of the confi- dentiality” (p. 4). In court settings there is wide variety i n what psychologists actually say. Some tell defendants that they will safeguard most of what is said to them, only presenting to the court their conclusions and a bit of the actual material; others inform defendants that they keep dual files, a confidential file contain- ing most of the material and an official file containing the reports given to the court; and others give defendants a full warning that noth- ing is entirely confidential.
In my view, the only ethically sound course is the latter one: Defendants must be informed that everything they say as involuntary clients can and may be reported to the court. Whether the court learns of the details of the interview or tests outright or only of the conclusions drawn from them, involuntary clients’ confi- dences are not kept in the same way that psy- chologists keep those of private clients. Further, courts, while they may not question psychol- ogists about details, can always do so. To tell defendants otherwise when the psychologist knows he or she must complete a report to the court based on psychological interviewing or testing of those defendants is to mislead them.
As is obvious, the Ethical Standards leave unanswered many questions concerning the complexities of court-ordered psychological in- terviews or tests. Psychologists working in court settings must have a far different relation- ship to the confidences of the persons they talk with than that of psychologists employed by in- dividuals. It is easier for court-employed psy- chologists to keep involuntary clients’ confi-
dences vis-a-vis the police and other agencies, for these psychologists are answerable only to the court and the defendant. But it is the con- flict of interest between the court and the defendant that gives rise to the ethical problem for psychologists and the practical problem for defendants of whether and how much to cooperate.
If we assume for the moment that the defendants who are ordered to speak with psy- chologists are the ones who are or appear to be the most emotionally troubled, the burden on .them is even greater. The individuals least able t o withstand the ethical, legal, and other pressures are the ones submitted to them. In- formed choice, an ethical imperative, is hardly possible under such circumstances. The ques- tion that inevitably arises is, should it be?
Responsibility to the Client
The ethical issues surrounding the matter of responsibility to the client center around the question of who the client is. The court situa- tions most comparable to the typical psychol- ogist-client relationship are those in which defendants have hired psychologists to provide some service to them such as testifying on their behalf, treating them, helping to pick a jury, or pointing out the unreliability of eyewitness identification. In such situations the psychol- ogist has but one client-the defendant-and owes responsibility solely to him or her.
But in the usual court situations, in which psychologists have been called upon to assess defendants or to provide them with treatment though they want neither, psychologists in ef- fect have multiple clients. At the least one can say that their clients are the individual defendants and the court. Because it is hard to talk about responsibility to an abstraction such as a court, however, it is easier to say that the psychologists’ responsibility is to the judges or probation officers or whoever directs their work in the court. If these court personnel share a similar philosopy, then psychologists have at
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least two clients, the defendants (the traditional clients) and the court personnel, and psychol- ogists’ responsibilities to the two are bound to conflict at times. The ethical problem becomes more complex, however, when the various personnel within the court have differing phi- losophies, for this then multiplies the psychol- ogists’ clients.
The Ethical Standards, while usually useful concerning the matter of responsibility to the client, provide little help to psychologists in courts. Principle 6, Welfare of the Consumer (p. 5 ) , speaks of dual relationships with clients (Section a), but not of multiple client rela- tionships; it requires psychologists to clarify the nature of conflicts of interest and inform all parties of them (Section b); and it directs psy- chologists “to terminate a clinical or consulting relationship when it is reasonably clear that the consumer is not benefiting from it” (Section e). The problem however, is, that there are many consumers of psychological services in court settings. The defendant or offender as consumer may not be benefiting from the psychologist’s treatment in the sense of personality change but may be benefiting by staying out of jail; the courts or judges may be benefiting from the treatment because it appears to their con- stituents that they have decreed suitable rehabilitative schemes for defendants and of- fenders; society as consumer may or may not be benefiting from the psychologist’s treatment of defendants and offenders; and so on.
The Ethical Standards envision a con- sumer/client who does or does not benefit from treatment. The true situation in courts is much more complex and involves balancing the needs of psychologists with the needs of judges, defendants, and society. Even the nature of the benefits is open to dispute. While some say that the benefit to defendants of hospitalizing them is great, others say it is a violation of their funda- mental rights. While some say it is a benefit to society to keep offenders out of jail, others say it is a disservice to offenders to prevent them from experiencing the consequences of
their actions. While some say it is a benefit to society to keep individuals in their commu- nities, others say it harms society to let some individuals remain in the community. And these controversies surround the questions of benefit to society, to the court, and the the profession of psychology as well.
Principle 7, Professional Relationships, rec- ognizes the fact that psychologists work with other professionals and must cooperate with them and support their host organizations. This principle seems to suggest that the court is a host organization as well as a client/consumer. The dilemmas arising from these different roles of the court pervade the work of psychologists in court settings.
Design and Use of Research
There are, of course, many ethical limitations imposed on the design of research in court set- tings. Some offenders cannot arbitrarily be found guilty nor others randomly punished more severely in order t o test hypotheses. Random assignments to groups do not ethically comport with justice, either in the “just deserts” model (let the punishment fit the crime) or in the “individualization” model (let the punishment fit the criminal). Research in a setting proclaiming justice will always be bounded by the demands of ethical probity.
Further, research in court settings always raises the issue of whether there can ever be in- formed consent to participate in the research or whether the pressures to participate are too great to permit real choice. Principle 9 of the Ethical Standards raises fundamental questions: How informed can the research participants be i n court settings (Section c)? How much freedom to decline (Section e) do defendants or offenders actually have and how much do they perceive they have? And how can confi- dentiality (Section j ) be respected more fully than has already been discussed?
The problems involved in the use of research findings in courts have already been adverted
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to. At least three are paramount: (1) The extent to which the findings of scientific psychology undermine the commonsense psychology on which the court is based may preclude their be- ing used in court. (2) The very essence of the adversary system is to challenge, and this method may lead to misleading conclusions and to misuse of the research. (3) The research may lead to conclusiofis that undermine the very work psychologists are doing in court.
We have seen that the unusual nature of the court setting continually raises important ethical and practical issues for psychologists as well as all others involved in it. Let us turn now to a number of approaches to the resolution of these ethical issues.
Approaches to the Resolution of Ethical Issues
For any ethical issue psychologists in court set- tings seek to resolve, three precepts are im- portant: Psychologists must be clear what role they are performing; they must be aware of the limitations of that role and of the conflicts it raises; and they must inform all those with whom they deal of those limitations and con- flicts.
We have seen that psychologists perform a number of different roles in court settings. They can be dealing either with voluntary clients or with involuntary clients, though of course there are many gradations. With voluntary clients the psychologist’s role may be as an expert or as an advocate, though the two roles clearly overlap and may be the same, whether the psychologist is testifying about psychological experiments that favor the client’s case or is reporting that defendants are not criminally responsible for their acts.
With involuntary clients the psychologist’s role may again be that of expert or it may be as an adversary, with these two roles also over- lapping or possibly being the same, as, for example, in determining that defendants ought to be incarcerated against their will in a mental
hospital as incompetent to stand trial. While this role differentiation assumes that psychol- ogists are adversaries of unwilling clients, psy- chologists themselves may perceive their roles as advocates of unwilling clients. Psychologists, for example, may look at incarceration as hos- pitalization rather than as imprisonment, argue that it is in the client’s best interests, and see themselves as allies of the clients/patients. And if the clients want hospitalization, then psychol- ogists may see themselves as facilitating a desired goal, albeit for involuntary clients. In this instance the question of whether psychol- ogists are clients’ advocates or adversaries turns not on the voluntary or involuntary circum- stances under which they were brought together but on the wishes of the clients. However, while the psychologist’s role can turn on clients’ wishes, it can also turn on defense attorneys’ wishes.
Defense attorneys may view psychologists as adversaries if the attorneys are advocating liberty for their clients and the psychologists are advocating incarceration. On the other hand, lawyers faced with very difficult and seemingly mentally ill clients may see psychol- ogists as advocates or helpers, providing an alternate disposition-mental hospitaliza- tion-for their clients. Lawyers faced with young or disturbed clients often seek such social and psychological services instead of providing the kind of legal representation they might for an accused criminal (Fersch, 1979).
However the role of the psychologist is conceptualized-as advocate, expert, or ad- versary-the second important precept is that the psychologist be aware of the limitations of that role and of the conflicts it raises. Thus, for example, the psychologist’s role may be limited by as yet unresolved questions concerning scien- tific psychology. And the conflicts raised by this role may include the the dilemmas caused by the psychologist’s desire to secure information and provide services and the defendant’s unwill- ingness to deal with an adversary.
In truly adversary situations, psychologists
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are faced with the necessity of permitting the clients all the protection the law affords them in such situations; if some aspects of the situation are adversary and some are not, psychologists may have the difficult task of sorting them out. In my own view, psychologists in court settings are always the adversaries of involuntary clients and ought to conduct themselves so as to protect defendants’ rights. Only by recognizing the limitations of their roles and facing directly the conflicts they raise can psychologists protect clients and uphold ethical standards.
But it is not enough merely to recognize such situations; psychologists must also inform all with whom they deal-clients, courts, and attorneys-of the limitations and conflicts inherent in their roles. By clearly informing all concerned, psychologists stand the best chance of resolving ethical dilemmas.
These three precepts apply to all the roles and functions of psychologists in court settings. More specific approaches to resolving ethical issues follow.
Representations of the Adequacy or Effectiveness of Psychological Programs or Services
While it is incumbent on psychologists in court settings to fully inform the court as well as the defendant or offender, psychologists often fear that such straightforwardness will hinder their work. They generally discover, however, that once the ethical issues are confronted directly, the criminal justice system is more receptive to what they are doing.
Beyond this ethical mandate to inform all parties about the limitations of and conflicts of interest in psychological programs and services, there is a much more controversial approach to resolving ethical issues. As outlined earlier in this chapter, there are three approaches to view- ing the interaction between the criminal justice system and the mental health system: the tradi- tional, the liberal reform, and the rethinking
approaches. It is the third, or rethinking, ap- proach that is the controversial one.
In the first, or traditional, approach, the criminal justice system occasionally called upon psychologists or psychiatrists but largely car- ried out its tasks by itself. In the liberal reform approach currently in the ascendancy, psychol- ogists and psychiatrist have taken on many of the tasks formerly performed by the criminal justice system. Thus, psychologists and psychia- trists currently determine whether there is potential for rehabilitation i n a particular defendant, determine whether a defendant is ca- pable of assisting counsel, assess whether there was criminal responsibility at the time of an alleged criminal act, predict dangerousness for both mentally ill and non-mentally-ill indi- viduals, and treat defendants diverted from trial. In these pretrial ways alone, the liberal reform approach has greatly increased the role of psychologists in courts. Similarly, as evi- denced in posttrial treatment of offenders, training of probation officers, and consultation with judges, the liberal reform approach has resulted in the increasing psychiatrization of the criminal justice system (Monahan, 1975; Morse, 1976, 1978).
It is this increasing psychiatrization- combined with mounting evidence that much of it is of limited value, violates fundamental human civil and legal rights (Davison & Stuart, 1975; Gorelick, 1975), is antithetical to es- tablished principles of scientific psychology, or is socially unworkable-that has brought about the third approach that I have termed rethink- ing (Fersch, 1979, 1980).
Various scholars and practitioners have at- tempted to rethink the basic problems of social deviance and social control and the respective places of law and psychology in the social system. This rethinking has led them t o advo- cate elimination of the indeterminate sentence, abolition of the insanity defense, and a return to voluntary treatment only. Such a course of action would divest the mental health system of much of its power over involuntary clients and
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return deliberations and power to the criminal justice system.
The procedures, for example, in determining defendants’ competency to stand trial would be drastically altered. Currently, anyone-the judge, the defense, or the prosecution-can raise the question of a defendant’s competency. Proceedings are then stopped, and the defend- ant is referred to a psychologist or psychia- trist or sent to a mental hospital for evalua- tion. Although, as has been noted, defendants are generally sent for sociological rather than psychological or psychiatric reasons, examiners focus on defendants’ psychological states. Reforms instituted in many places have less- ened the number of defendants sent to hos- pitals, shortened their stay, and returned more of them to court as fit to stand trial; also, some psychological examiners are being trained to understand better the requirements of the court proceedings and of cooperating with counsel.
Nevertheless, in the rethinking approach this entire procedure would be viewed differently. Let us look first at the normal situation in which a defendant wants a delay in the proceed- ings. Delays are sought for many reasons, and lawyers and their clients determine what is in the client’s best interests. l f the court wants further information before granting a delay it can seek it on its own, for example, by asking its own specialist to examine the defendant. But the decision to ask for a delay remains the defendant’s and his or her lawyer’s.
Further, lawyers often have difficulties with their clients that may necessitate delays in the proceedings. Some difficulties are easily re- solved, such as when a defendant does not speak English and translators are used. Other difficulties such as when defendants are overly demanding, uncommunicative, or psychotic, are more difficult to resolve, but lawyers can do their best to calm their clients or sometimes translate their odd behavior by using whatever specialists are available to help. Occasionally defendants are so disruptive they have to be removed from the court, or they cooperate only
in the most minimal way with their lawyers. And not all lawyers and clients are happy with each other, especially when the lawyers are ap- pointed by the court. Yet all of these situations are considered relatively routine and are han- dled with the usual procedures.
The rethinking approach would argue that the suspected presence of mental illness should not change these usual procedures. Just as the suspected presence of severe physical illness or its actual occurrence might cause a delay in a trial, so might severe emotional upset or psy- chotic hallucinations or incoherent mumblings cause a delay if the defendant and his or her lawyer wanted one. Just because some defend- ants are more difficult, more bizarre, or less helpful does not mean that the criminal jus- tice system should turn over to the mental health system the determination of such an im- portant matter a s the defendant’s right to proceed with trial. The right to trial is too im- portant to be left in the hands of psychologists, psychiatrists, or translators. It belongs with the legal profession, which understands best what capabilities the defendant needs in order to cooperate with counsel and especially with the one individual whose role is to safeguard the defendant’s rights-his or her lawyer. When called on by defendants or lawyers to assist them, psychologists can of course provide services to these voluntary clients. But the overall matter belongs within the criminal jus- tice system.
A rethinking approach, then, would eliminate the forced use of psychologists’ services and leave psychologists free to continue in those roles where they simply function as willing sup- pliers of services to willing consumers. Thus, psychologists could continue, under this ap- proach, to offer their advice on jury selection; they could help in plea-bargaining sessions; they could remain as expert witnesses on such mat- ters of scientific psychology a s perception and eyewitness identification, though not on such speculative philosophical matters as crim- inal responsibility; they could treat disturbed
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defendants or offenders who asked t o be treated; they could be consultants to lawyers, judges, court personnel, and outside agencies; and they could conduct research a s long as those being researched freely consented. Furthermore, they could explore new roles and functions.
From my training as a lawyer and a clinical psychologist and from my experience in court settings, I personally favor this rethinking ap- proach (Fersch, 1974, 1975, 1979, 1980). It is not enough to inform courts of the limitations of psychologists’ roles and functions. Psy- chologists must help to limit what they do. However good their intentions, however much they see themselves as humanizing influences on the criminal justice system, however positive they are that they are more accurate than re- search has shown psychologists to be, and however much they might wish that psychology could solve the most intractable problems of human nature and of society, psychologists must .redirect their professional energies to those roles and functions in which they provide services and programs to willing clients. Volun- tary, informed clients are then free to use whatever they feel will be of help to them.
At the very least, ethically, psychologists in court settings must inform the court and the defendant of the limitations and conflicts inherent in their roles and functions. At best, ethically, psychologists in court settings should endeavor to challenge the traditions and re- quirements that say they must perform certain roles and functions. As citizens, psychologists are free to voice their opinions on many topics; as psychologists, they should restrict their func- tions to those that use their expertise and protect those with whom they deal.
Representations of the Competence of the Psychologist
What is true of programs and services is equally true of professional competence. Psychologists in court settings should recognize, as Prin-
ciple 2 of the Ethical Standards says, “the boundaries of their competence and the limita- tions of their techniques’’ (p. 2). Because this principle also says that psychologists should “only provide services, use techniques, or offer opinions as professionals that meet recognized standards” (p. 2), the most useful function of psychologists in court settings may be to help clarify standards and to lead the effort toward recognizing standards that truly make sense.
Confidentiality
Using the traditional, reform, and rethinking models, one can see three different approaches to the problem of confidentiality. In the tradi- tional model, psychologists simply interviewed, tested, or treated defendants, realizing that the psychologists’ tasks were somewhat limited, that the clients were ordered to respond by the courts, and that the psychologists were simply carrying out mandates thought useful by courts. In the liberal reform model, psychologists also interview, test, or treat. Viewing themselves as therapeutic figures, they generally do not warn clients about the problems of confidentiality. To protect the clients and to prevent misuse of information, psychologists instead put the in- formation they gather into‘ two different places. The more extensive material they gather re- mains in their own files; what they choose to tell the court goes into its files. By maintaining this double set of records and by screening what they divulge of clients’ confidences, psychol- ogists feel they are breaching confidentiality in a minimal, and therapeutically useful, way. Their aim is to get psychological help for people characterized as criminal but actually more sick than evil.
In the rethinking model, confidentiality would be respected by removing psychologists from the tasks of court-ordered preadjudication interviews, tests, or treatment. Thus there would be no determinations by psychologists of competency to stand trial (though they could assist defendants or lawyers who asked them
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to), no forced interviews to determine criminal responsibility, no determinations of suitability for rehabilitation prior to trial, ‘and no diver- sions for treatment in lieu of trial. The rethink- ing model would suggest that psychological interviews, tests, and treatment be considered after an adjudication of guilt and then only if they meet the standard of usefulness.
However until this’ideal of not providing psy- chological services to involuntary clients prior to trial is accepted, the rethinking position ad- vocates a complete warning with regard to the limits of confidentiality to clients, similar to warnings now mandated for the police. Psy- chologists would thus have to tell defendants that nothing was in confidence, that everything could potentially be used against the defendant, and that confidentiality was such an important matter that defendants’ decisions to remain silent or to refuse to cooperate with psychol- ogists would not be held against them. Because the rethinking position views psychologists, however helpful they may ultimately be to defendants, a s adversaries or potential ad- versaries of the defendants, it demands of psy- chologists what it does of other adversaries such as the police. Often, the police, in fact, turn out to be and to be seen as the most helpful agency to some defendants; yet, helpful or not, the police are viewed as defendants’ adversaries and must so warn their clients/arrestees.
Responsibility to the Client
Insofar as the courts are the client of psychol- ogists, psychologists owe them the duty of truthfulness and self-awareness. Insofar as so- ciety is the client of psychologists, psychologists owe it a clear view of what they are doing and what its effects are. And insofar as defendants are the clients of psychologists, psychologists owe them the same respect for their rights they would offer any other clients. With regard to correctional institutions, it is increasingly being argued that the decision to release prisoners on parole ought not to be predicated on the
prisoners’ seeking treatment within the institu- tion and that treatment ought to be given for its own sake. Similarly, in court settings, the dis- position of defendants should not turn on their willingness to be assessed or treated psychologi- cally, although this is the liberal reform posi- tion. One of the worst effects that psychologists have had on offenders has been encouraging them in their ability to con people by forcing them to pretend that treatment was useful in order to preclude their trial or gain their liberty.
I have proposed elsewhere that the mixing of punishment and rehabilitation in the criminal justice system is unworkable and that the process of correctien ought to be divided into its constituent parts (Fersch, 1975). First, there ought to be a range of suitable punishments for antisocial acts, including restitution, service to the victim or to the community, fines, and in- carceration. These punishments should be brief, follow quickly upon the offense, and be im- posed only after a finding of guilt. The second part of the process should follow punishment and consist of restoration of all rights to the of- fender and an offer without coercion of a va- riety of rehabilitative services: medical, dental, financial, psychological, educational, and voca- tional. A final component in this process should be consideration of whether, based on their acts, offenders are so dangerous that society’s protection requires they be incarcerated for longer periods of time. If this is the case, all their rights and privileges save that of liberty should be restored to them following punish- ment, and they, too, should be offered rehabili- tative services. Psychologists’ participation in the working out of the above model would go far toward discharging their responsibilities to all of their clients.
Design and Use of Research
The ethical issues surrounding research can be resolved primarily through the use of sufficient alternatives in research design to provide true
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choices for those involved. Just a s in a university or hospital setting there is a research committee that passes on projects involving human subjects, so should there be such a com- mittee in court settings, consisting of advocates of various groups. While this procedure might make it more difficult for psychologists to pursue their own views of research, it insures greater fairness, and adherence to ethical standards.
With respect to the use of research, psychol- ogists must be alert to the possibility of misuse and attempt to correct abuses when they occur.
Questions of Public Policy
Throughout this chapter I have referred to major questions of public policy raised by the roles and functions of psychologists in court settings. Chief among them is the relation between the criminal justice system and the mental health system as both systems approach problems of social deviance and social control (Kittrie, 1971; Monahan, 1975; Monahan & Hood, 1976; Schur & Bedau, 1974; Silber, 1974; Stone, 1975; Tapp, 1976). To what extent
.should society view those who engage in anti- social behavior as possessing free will to choose their acts and suffer the consequences for them, and to what extent should society view such people as determined by heredity or environ- ment to perform those acts for which the proper response ought to be some sort of psychological inquiry and treatment?
Further, what ought t o be the balance among punishment, rehabilitation, deterrence, and isolation as goals of the criminal justice sys- tem (Dershowitz, 1974, 1975; Donnelly et al., 1962; Frankel, 1973; Kennedy, 1976; Oran, 1973; President’s Commission on Law Enforce- ment and Administration of Justice, 1967; Tullock, 1974)?
Underlying all that has been said in this chapter is the view that the mental health system, whatever its benefits to willing or even
unwilling clients, is always potentially and often actually the adversary of involuntary clients. What then ought to be the roles and functions of psychologists in court settings?
A related question of public policy is the role of the different branches of government in ameliorating the problems that do exist. Psy- chologists perform many tasks in court settings because legislatures and courts have demanded that they do so. To what extent ought psychol- ogists to refuse to do what they know they can- not do even though mandated to do it? To what extent ought psychologists to ask their legisla- tures to make changes in the laws or ask their courts to interpret them differently? Unfortu- nately, psychologists and other professional groups often seek changes in the laws only to find that the beneficent results they envisioned as proceeding from the legislation fall far short of their expectations in actual practice. How can psychologists help bridge the gap between social theorizing and actual outcomes?
Such important questions of public policy are increasingly becoming topics for discussion among members of the legal and psychological professions as well as society at large. Psy- chologists in court settings have important contributions to make to such discussion.
Future Roles and Functions of Psychologists in Court Settings
With regard to future roles and functions of psychologists in court settings, if we look a t the three ideological positions discussed earlier-the traditional, reform, and rethinking positions-it becomes clear that most psychol- ogists do not support the traditional position that says they have little, if anything, to contribute to the criminal justice system. Rather, psychologists are split between the other two positions, with the far larger number favoring the liberal reform position. In conclud- ing this chapter it is important, therefore, to
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WHO IS THE CLIENT?
view the future roles and functions of psychol- ogists in court settings from both of these perspectives.
Both the reform and the rethinking positions would agree that psychologists can perform whatever roles and functions in courts willing clients ask them to perform, subject only to the limitations of scientific psychology. Thus, while there are questions concerning psychologists as screeners of juries or as witnesses in court, as long as defendants, their lawyers, and the courts agree that these roles are suitable, psy- chologists can continue in them and expand their work. The ethical standards of usefulness and truthful representation of services form the boundaries of the activities. And, after all, there are many different views of usefulness concern- ing psychology and psychologists, just as there are many different views concerning religion and ministers or education and teachers. The most one can hope for is clear presentation of the evidence and an informed chooser.
But the reform and the rethinking positions are in disagreement when coercion-obvious, subtle, or inherent in the situation-occurs. The reform position allows psychologists to assess or treat involuntary clients while advocating such safeguards as a greater degree of choice, a dual records system, and concern for the effects of
both incarceration and therapy in psychological intervention. The rethinking position, on the other hand, would not allow psychologists to assess or treat involuntary clients, thus advo- cating the ultimate safeguard for the defend- ants-the elimination of involuntary interviews, testing, and treatment and the removal of psy- chologists, psychiatrists, and other mental health personnel from some of the tasks they currently perform in courts. This position would reconceptualize the psychologist’s role with involuntary clients as essentially one of of- fering services following the adjudication of guilt, when the client, uncoerced, can decide whether or not to accept them.
Freed from dealing with involuntary clients, psychologists could then expend more effort in providing the best assessment, treatment, consultation, training, and research they could to voluntary clients-defendants, courts, and society-advising them of psychological tech- niques and services, retaining confidences, setting forth clearly psychologists’ abilities and shortcomings, and challenging both the criminal justice and the mental health systems. In that way, the future roles and functions of psychologists in court settings would be legally and psychologically important a s well as ethically sound.
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