A Plea for Psychology (with apologies to J.L. Austin)
So I've gotten off to a slow start, but I'll try to make some contribution now.
As I mentioned, I wonder if psychology as a discipline has gotten short shrift from ELS. As a historical matter I think so; research in legal psychology has been conducted, off and on, for about 100 years. But until recently the legal system has been skeptical, suspicious, at times hostile to psychology, and there’s not much discussion of psychological research in modern ELS – with exceptions, much of the work stems from economics or political science.
There are historical reasons for this skepticism. The conventional story is that psychology and law as a discipline was founded around 1908, with the publication of Hugo Munsterberg’s On the Witness Stand, documenting his efforts to persuade the legal system that his empirical work in criminal justice – eyewitness research, memory, perception, lie-detection, etc. – was relevant and important. (Another interesting contribution, written in a more scholarly vein, was a book by G.F. Arnold, a British legal scholar, Psychology Applied to Legal Evidence (1906)).
Munsterberg's book was pugnacious and had a lot of 'tude -- probably too much ("The time for Applied Psychology is surely near. . . . The lawyer alone is obdurate;" "The lawyer and the judge and the juryman are sure that they do not need the experimental psychologist. . . . They go on thinking that their legal instinct and their common sense supplies them with all that is needed and somewhat more.") Hugo's book prompted a now-classic response article by John Henry Wigmore, in which Wigmore staged a mock lawsuit accusing Munsterberg of libeling the legal profession. Both tongue-in-cheek and vitriolic, Wigmore's cross-examination devastated poor Hugo, and as a result, one commentator has said, for years American psychologists "left the law rather severely alone." Last week a wonderful conference was staged at John Jay College of Criminal Justice, though, celebrating OTWS's centenary: Off the Witness Stand: Using Psychology in the Practice of Justice." With a keynote speech by Janet Reno, and talks by many top researchers in in psychology discussing the state of psycholegal research today--experts in eyewitness testimony, memory, jury decision-making, forensic psychology, coerced confessions, and more--it was geared toward both scholars and practitioners, and was a good state-of-the-discipline weekend. (One concern, as I hope to discuss in another post, is the impression that criminal justice is all there is for psychology to look at.)
And there are methodological / institutional reasons for the skepticism. As I and many others have noted, experimental psychology takes a different approach to finding answers: objective rather than adversarial, nomothetic rather than idiographic, probabilistic rather than certain, descriptive rather than prescriptive.
But this skepticism is unfortunate, and has led to a lack of communication between the disciplines of law and psychology. I think ELS suffers from that lack, in at least two ways. The first is simply mutual unfamiliarity with the other field’s research. This is unfortunate historically (for instance, the explosion of heuristics-and-biases research over the last 10 years or so, which builds on psychologists’ work that has been around for 30 years and appears in any introductory cognitive psychology textbook), but also in terms of keeping up with empirical developments in psychology (and other social sciences too, of course).
The second, which I'll turn to next post, is methodological. . . .
For those who are still here, thanks!