Steven M. Smith, PhD, Saint Mary’s University

Marguerite Ternes, PhD, Saint Mary’s University

Skye Stephens, PhD, R. Psych, Saint Mary’s University

Katelynn Carter-Rogers, MSc, Saint Mary’s University

Psychology and the Law in Canada

Russell Williams was a model member of the Canadian military. Joining the Canadian Forces in 1987, he quickly became a respected pilot and officer at postings, such as CFB Portage la Prairie, CFB Shearwater, and in Ottawa. Posted to CFB Trenton in 2004, he became base commander in 2009. On January 28, 2010, 27-year-old Jessica Lloyd was reported missing from an area near the base. Police, while investigating, noticed distinctive tire tracks in the snow. A police officer canvassing the area for witnesses noticed similar tracks on Williams’ SUV. On February 7th, 2010, Williams was interrogated by police and confessed to Lloyd’s murder. He ultimately described more than 80 crimes, including break-ins, thefts, sexual assaults, and another murder. Williams’ crimes followed an escalation from fetish burglaries, to sexual assault to sexual homicide. Williams painstakingly documented his actions, with photos, copies of newspapers reports of the crimes, and items he had stolen from his victims. He was sentenced to two concurrent life sentences without the possibility of parole for 25 years. Interested readers are encouraged to consult Brankley, Goodwill, and Reale (2014) for a more in-depth psychological perspective on the case.

The Intersection of Psychology and the Law

Russell Williams’ crimes and their aftermath left a lasting impression on many people – how could such a respected individual, with all the success he had enjoyed, be driven to commit these crimes, and then be able to cover them up for so long? Was there any evidence that linked Williams to earlier cases, or did he really display no evidence of violence prior to his officially documented offences? Why would someone keep such detailed records of their crimes? How was it that his sexually violent behaviours stayed hidden for so long? This case illustrates some of the many ways in which psychology and the legal system interact. These are just some of the issues that psychologists and psychological researchers deal with when psychology and the legal system interact.

Definitions & History

Forensic psychology (and the field of psychology and the law, more broadly) can be defined as the application of psychological theory, research, methods, and practice to the legal system. In many ways, forensic psychology is not a new field. Discussions of the link between psychology and the legal system goes back to the 1800s. The first documented consideration of psychological issues and the law dates back to Hugo Münsterberg’s 1908 book On the Witness Stand. He touched on many topics, including crime detection, eyewitness testimony, false confessions, and even how to prevent crime. He urged the courts to make use of the burgeoning field of experimental psychological research to improve the accuracy of legal decisions. Münsterberg got a lot right, but in many ways, he was ahead of his time. The research was not yet where it needed to be to effect change within the legal system. Indeed, his work was widely criticized (e.g., Wigmore, 1909; 1940) and research in the area was quiet for approximately 50 years.

The 1950s and 1960s saw a resurgence in the field, and the role of psychology in the legal system became a serious area of academic research. Clinicians, researchers and academics began to be sought as experts in court, and this increased throughout the 1970s and 1980s. These psychologists and academics covered many topics, including basic issues in legal process, impacts on memory and decision-making, and clinical issues such as corrections, insanity defenses, and the role of mental illness as a mediator in criminal behaviour. Since the 1990s, the integration of psychology and law has become more defined; it is common now for courts and law enforcement to look to experts to help develop policy and process (see Roesch, Zapf, Hart & Connolly, 2013, for a review).

Licensure

A large proportion of forensic psychologists are licensed psychologists. Licensure in Canada is provincially regulated (https://www.cpa.ca/accreditation/PTlicensingrequirements/), however, each province’s rules are consistent with the Canadian Psychological Association (CPA) standards (e.g., CPA, 2012). CPA has suggested that all licensed psychologists have a PhD. In addition to an appropriate degree, trainees need to have completed 2-6 years of supervised clinical practice and must pass a comprehensive standardized test (currently the Examination for Professional Practice in Psychology, or EPPP). Some provinces have additional requirements (e.g., in Ontario you complete a jurisprudence exam).

A Few Words on Ethics

Regardless of whether they are licensed, psychologists are bound by a code of ethics for their research and practice. For clinicians, all professional behaviour must follow provincially mandated ethical guidelines, which are based on international standards (see CPA, 2017). Violation of these ethical guidelines can lead to censure, loss of professional privileges, and even loss of employment. Psychologists must work within their scope of practice (i.e., work only within their area of expertise), avoid multiple roles (e.g., cannot treat a family member or someone with whom they have a close personal relationship), and must maintain confidentiality and security of privileged information (CPA). There are also additional guidelines that influence the work of forensic psychologists, such as the forensic speciality guidelines (American Psychological Association, 2013).

Psychological researchers also have the requirement that their research abide by the Tri-Council Ethical Guidelines (see http://www.pre.ethics.gc.ca/eng/education/tutorial-didacticiel/). These guidelines mandate that researchers ensure participants give informed consent, that they be truthful in their interactions with those participants, use deception only if necessary, protect people from harm, maintain confidentiality, and debrief their participants.  All professionals are themselves responsible for ensuring that they have comprehensive knowledge of their respective boundaries of practice.

Now that we have covered the basics of forensic psychology, how it came to be, and who works in the area, we will delve into some specific topics within the field, and how professionals work in these areas. We will explore forensic assessment in criminal and civil domains, correctional psychology, police psychology, police investigations, and the role of psychology in legal decision making.

Forensic Assessment in Criminal and Civil Domains

Forensic assessment is a highly specialized form of psychological assessment (see Clinical Psychology Chapter for further information on psychological assessment) that involves sharing an informed opinion on a legal issue. Forensic assessments differ from typical psychological assessments in several ways, with arguably the most important distinction being the nature of the referral question. Forensic assessments are narrowly focused on specific legal matters and are most useful to parties to a legal proceeding or legal decision makers who must consider several factors when rendering a legal decision (e.g., considering how a person’s past behaviour might impact future behaviour). In the following section, we will briefly review some of the more commonly requested assessments in criminal and civil contexts with a specific focus on the Canadian context.

Criminal Domains

There are several different types of forensic assessments that can be useful to parties in the Criminal Justice System. In these assessments, forensic psychologists will use a wide variety of general and more specialized forensic assessment tools (Heilbrun et al., 2003; Heilbrun & Brooks Holliday, 2013). In the current section, we briefly review forensic mental health and risk assessment.

Forensic mental health assessments are conducted by professionals who provide clinical assessment information to legal decision makers or litigants (Heilbrun, 2001). Two commonly ordered forensic mental assessments are fitness to stand trial, and not criminally responsible on account of a mental disorder (NCRMD). According to the Canadian Criminal Code (1985) for someone to be fit to stand trial they must be able to understand the court process, the consequences of the court proceedings, and communicate with their lawyer. For NCRMD, the first question that must be answered is whether the accused has a mental health disorder and, if present, if it impaired their ability to appreciate the nature of their acts or to know that their acts were wrong (Canadian Criminal Code). Given that these assessments often involve questions about mental health, when psychologists are involved, they fall under the purview of Clinical-Forensic Psychology.

Forensic psychologists can be involved in fitness and NCRMD assessments, which are often conducted by a multidisciplinary team. The role of the psychologist in these assessments varies (e.g., providing psychological testing, providing a second opinion on the ultimate legal issue) depending on where the assessment takes place. A recent position paper released by the Canadian Psychological Association has advocated for psychologists to be explicitly identified in the Criminal Code as being able to perform these assessments independently, as psychiatry often takes the lead role on these assessments (see Hessen Kayfitz et al., 2017 for further information).

Another major role of forensic psychologists is risk assessment. Risk assessment is a comprehensive information gathering process that involves the identification of risk factors, the synthesis of information into a determination about risk to reoffend (recidivism), recommendations about evidence-based approaches to manage risk, and communication about this information to the referral source (Mills, Kroner, & Morgan, 2011). Risk assessment has evolved in large part due to the work of psychologists (many of whom are Canadian) from being a relatively unstructured and imprecise method to a highly structured process in which assessors use specialized risk assessment tools to help them reach informed decisions about risk to reoffend (e.g., Mills et al.,).

Best practice in risk assessment involves the inclusion of static (generally historical and unchangeable, such as criminal history) and dynamic (changeable factors, such as substance use) risk factors, as dynamic risk factors add incrementally to the predictive validity of static risk factors (e.g., Wilson, Desmarais, Nicholls, Hart, & Brink, 2013). Dynamic risk factors also represent important targets for risk management, as they are modifiable, whereas static risk factors are not. More recently, there has been a movement to include protective factors (factors that decrease the likelihood of recidivism) in risk assessment (e.g., Structured Assessment of Protective Factors for Violence Risk; de Vogel, de Ruter, Bouman, & De Vries Robbe, 2009). Despite this development, there is disagreement about the conceptualization of a protective factor and their value in risk assessment (e.g., some have argued that a protective factor is just the inverse of a risk factor; e.g., Harris & Rice, 2015). Some research has shown that when protective factors are incorporated into violence risk assessment that they add to the predictive validity of traditional risk assessment tools (e.g., de Vries Robbe, de Vogel, & de Spa, 2011).

Forensic mental health and risk assessments can occur with special populations (e.g., youth, offenders with intellectual disabilities). One special population is young offenders (in Canada these are youth between the ages of 12 and 17) and separate legislation has been developed to address criminal justice proceedings with youth (Youth Criminal Justice Act, 2003). A medical or psychological report can be ordered at various times during these proceedings if there are questions about the presence or a mental disorder, the person has repeatedly been found guilty, or the youth has committed a serious violent offence (YCJA). As a result, forensic psychologists are often involved in conducting a comprehensive assessment that involves a mental health and risk assessment.

Importantly there are also specialized sentencing options for youth. Eligibility for these sentencing options could hinge, in part, on the results of a forensic assessment. For example, a specialized sentencing option for youth is Intensive Rehabilitative and Conditional Supervision (IRCS). An IRCS sentence allows the youth to first receive intensive therapeutic support while in custody and then be released under conditional supervision. There are different eligibility criteria for an IRCS sentence, including the presence of a mental disorder and the presence of a treatment plan that could reduce risk (YCJA, 2003).

Civil Domains

Traditionally forensic assessment has been focused on criminal law, but there is a compelling case for the utility of forensic psychology in civil litigation (Greene, 2003; Morgan & Palk, 2013). In civil matters, there are several legal issues where forensic psychologists can offer an opinion that would assist the courts, such as psychological injury, professional malpractice, wrongful termination, and parental capacity. Forensic psychologists can be retained by either side in civil proceedings. For example, they can be retained by the plaintiff to examine the impact of an event on the plaintiff or hired by the defense to evaluate the claims of the plaintiff or a report submitted by another expert (Gottlieb & Coleman, 2012). Given the number of contributions forensic psychologists can make to these proceedings, the involvement of forensic psychologists in civil litigation has increased over time (Greene, 2009).

One example of civil litigation where a forensic assessment can be useful is personal injury assessment (this term includes psychological injuries). According to Ackerman (2010), civil litigation on personal injury involves the determination of damages that stem from an injury and a determination of who is liable for those damages. Forensic psychologists are often involved in the determination of damages, though there are occasions where they will assist with determination of liability, particularly when the cases involve liability on the part of a medical professional. Although there are many challenges to civil litigation cases involving psychological injuries (see Vallano, 2013 for a review), forensic psychologists may be particularly useful in assisting the courts to understand the psychological injury that is the focus of the proceedings, its cause, the influence of pre-existing psychological injuries, and the likely prognosis. Forensic psychologists can also contribute specialized testing that not only assesses for the presence of mental health disorders, but also considers the impact of response style (e.g., is the person exaggerating reported psychological symptoms) on the results of the assessment.

Forensic assessments can also be useful in family law, for example in custody disputes. Forensic psychologists who conduct custody assessments should have competency in a wide variety of areas including, but not limited to, an understanding of the research literature on divorce and child custody, an understanding of developmental and family psychology, and knowledge of the family court system (Gindes, 1995). Psychologists may fulfill different roles in these proceedings and these assessments address a myriad of complex issues, such as child abuse and domestic violence allegations, the presence of mental illness, and issues specific to child development (Gottlieb & Coleman, 2012). Child custody evaluations are a contentious area of practice, as psychologists who conduct these types of assessments are subject to a high number of ethics complaints (Bow, Gottlieb, Siegel, & Noble, 2010).

Career Paths

For students who are interested in pursuing a career that involves forensic assessment there are several settings where these assessments might be conducted, such as hospitals, correctional institutions, youth facilities, private practice, or police agencies. Given the diverse settings in which forensic assessors are employed, it would be expected that the job requirements would differ depending on the setting (e.g., whether one needs to be a licenced psychologist).

It is important to note that in many jurisdictions forensic assessment closely intersects with other disciplines, such as Developmental Psychology, Clinical Psychology, or Counselling Psychology. For example, since many of the forensic assessments involve broader clinical issues (e.g., NCRMD assessments), practicing forensic psychologists are often required to be registered with their local regulatory bodies in the areas of Clinical or Counselling Psychology as well as Forensic Psychology. For those interested in pursuing a career path in forensic assessment, it is recommended that they investigate graduate schools where faculty can provide forensic research training and where there are also ample opportunities for forensic placements.

Correctional Psychology

Psychology can be applied to correctional settings in multiple ways, including assessment, crisis intervention, staff training, administrative consulting, and group and individual therapy with individuals involved in the criminal justice system. A correctional psychologist is a specialized clinical psychologist who conducts psychological assessments and provides psychological treatment in jails, prisons, and other correctional settings; see the Clinical Psychology Chapter for further information on psychological assessment and treatment. Psychologists play a key role in Canadian corrections, with the Correctional Service of Canada (CSC) being the largest single employer of psychologists in Canada (CSC, 2014a). The following section will review non-clinical applications of psychology to correctional contexts, focusing on Canada’s correctional systems.

Corrections in Canada

With a mandate to keep the public safe, the corrections system is responsible for supervising individuals who have been arrested, charged with, or convicted of a criminal offence. Canada’s federal correctional system (i.e., CSC) has jurisdiction over adult offenders sentenced to two years or longer, while provincial or territorial correctional systems have jurisdiction over adult offenders serving custodial sentences that are less than two years, individuals who are being held while awaiting trial or sentencing (remand), offenders serving community sentences (e.g., probation), and youth offenders. Sentencing decisions are made by judges to achieve the goals of deterrence, denunciation, separation of the offender from society, rehabilitation, reparation for harm done to victims or the community, and to promote a sense of responsibility in offenders. Psychologists have played an important role in determining whether current sentencing practices in Canada achieve the goals of deterrence and rehabilitation (Motiuk & Serin, 2001). Through this research, forensic psychologists have influenced correctional policies.

Offender Management

Forensic psychologists have also affected correctional policy through their contributions to offender management and treatment and Canadian researchers have led the way in establishing principles related to effective correctional intervention. The Risk-Need-Responsivity (RNR) model was developed to serve as a guideline for assessing and treating offenders (Andrews & Bonta, 2010; Bonta & Andrews, 2017). These guidelines suggest that correctional programming should match the risk and needs of the offenders, and the mode and style of the program should match the learning style (e.g., factors, behaviours, and attitudes that facilitate learning) and abilities of the offender (Bonta & Andrews). Specifically, higher risk offenders require higher intensity programming, which generally means increased program hours. Additionally, targeting an offender’s specific criminogenic needs (e.g., pro-criminal attitudes, substance abuse) reduces recidivism (Andrews & Bonta). Finally, RNR’s responsivity principle suggests that cognitive social learning methods be used to influence behaviour, specifically cognitive-behavioural interventions that consider the offenders’ strengths, learning style, personality, and motivation (Bonta & Andrews). It is not uncommon for offenders to have low levels of verbal ability, low levels of personal insight, and low willingness to engage in treatment work. Effective programming for offenders often includes a very active style of delivery, with a predominance of role-play and other interactive exercises to increase responsivity. Much of correctional programming worldwide is based on RNR principles (e.g., Matthews, Feagans, & Kohl, 2015; Ternes, Doherty, & Matheson, 2014).

Adherence to the RNR model has led to a number of opportunities for practitioners to apply psychology to the correctional system. For example, to determine which correctional programs an offender should be placed in, it is necessary to assess his or her criminogenic needs. In CSC, all offenders undergo needs assessment within 90 days of admission. Needs assessments are conducted by parole officers using the Dynamic Factors Identification and Analysis-Revised (DFIA-R), which assesses for needs in the areas of employment/education, marital/family, associates, substance abuse, community, personal/emotional, and attitude (Stewart et al., 2017). Results of these assessments are used for case management, for profiling offenders, and for predicting risk. Risk assessment (reviewed above) is relevant at various points in the criminal justice process to help with correctional decision-making. For example, results of risk assessment are considered pre-trial, at sentencing, for custody classification, for parole hearings, and pre-release.

One of the goals of incarceration is to rehabilitate offenders to prepare them to reintegrate into the community upon release. This goal is generally accomplished through correctional programming. Effective correctional programs typically follow the RNR principles by matching the offenders’ needs and risk (Bonta & Andrews, 2017; Smith, Gendreau, & Swartz, 2009). Programs that target multiple criminogenic needs seem to be the most effective since most offenders have several criminogenic needs (Gendreau, French, & Taylor, 2002). In line with this, CSC currently offers the Integrated Correctional Program Model to meet various criminogenic needs (Motiuk, 2016). This model uses cognitive-behavioral and social learning-based approaches to help offenders change their attitudes, beliefs, and behaviours (CSC, 2014b).

Community Supervision

Most offenders are supervised in the community through bail, probation, or parole. Probation is a provincial sentence served by the offender in the community. Parole is a conditional release from federal prison intended to facilitate an offender’s reintegration into the community. While on probation or parole, offenders are required to abide by certain terms and restrictions, such as mandatory treatment, under the supervision of a probation officer or parole officer. Violation of these terms may result in imprisonment or new charges (for probation) or return to custody (for parole).

Parole Decisions

In Canada, generally, an offender must serve the first third of their sentence, or the first seven years, whichever is less, before being eligible for parole (Parole Board Canada, 2018a). Parole decisions are usually made after a public, formal hearing where the members of the parole board question the offender and his or her parole officer. When determining whether to grant parole, the parole board considers the risk the offender might present to the community upon release based on factors such as criminal history, risk assessment measures, psychological reports, information from victims, information indicating evidence of change and insight into criminal behavior, program participation, and the feasibility of the offender’s release plans (Parole Board Canada, 2018b). To assist parole board members in making their parole decisions and to increase the likelihood that they consider the most relevant factors, forensic psychologists have developed a tool that acts as a framework for making these decisions (Gobeil & Serin, 2010). The framework lists factors that are relevant to release decisions and provides a basic scoring mechanism that suggests how the factors should be considered in the overall assessment of risk. Using this framework results in fewer release decision errors than traditional parole decision making (Serin et al., 2016; Yesberg, Scanlan, & Polaschek, 2014).

Issues in Corrections

Segregation

Over the past several years, specific issues have become known in corrections that have highlighted the importance of psychology in this context. For example, the media has focused much attention on the issue of placing offenders with mental illness in solitary confinement. This issue gained public notoriety when 19-year-old Ashley Smith died by suicide alone in a segregation cell in Grand Valley Institution for women in Kitchener, Ontario, while officers looked on via video monitors (Office of the Correctional Investigator, 2014). During her incarceration, Ms. Smith had been moved between institutions 17 times and had spent her entire time in federal custody (almost one year) in segregation. She had also been the subject of 150 security incidents. Although Ms. Smith’s mental health needs were well-documented, she had never been provided with a comprehensive mental health assessment or treatment plan.

This tragic incident led researchers and policymakers to look closely at the consequences of segregation. Although research has not provided conclusive evidence that segregation results in negative mental health consequences (Glancy & Murray, 2006; Morgan et al., 2016; O’Keefe et al., 2013), it has been suggested that longer periods of segregation (i.e., more than 14 days) might be harmful due to mental deterioration (Arrigo & Bullock, 2008; U.S. National Research Council, 2014). This has led to changes in policy related to administrative segregation. For example, CSC now prohibits administrative segregation for inmates with serious mental illness or those actively engaging in self-harm (CSC, 2017). Recently, the Ontario Superior Court and the British Columbia Supreme Court ruled that indefinite solitary confinement in Canadian prisons is unconstitutional (British Columbia Civil Liberties Association v. Canada, 2018; Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen, 2017). Several correctional psychologists, experts in segregation, provided expert evidence in these hearings. With the Canadian government appealing these decisions (Paperny, 2018) and similar lawsuits ongoing in other Canadian jurisdictions (McMillan, 2018), it is clear that research and policy modifications will be ongoing. The input of psychology will be imperative in these efforts.

Correctional staff stress

The extreme stress that correctional staff workers experience on the job has also recently been highlighted in the media. Correctional officers deal with a multitude of stressors on the job, with the most severe stressor probably being daily contact with potentially volatile inmates. An investigative report conducted by CBC found that one in twenty employees at federal penitentiaries had been diagnosed with stress injuries (MacIvor, 2017), and the Union of Canadian Correctional Officers (UCCO) has suggested that most correctional officers experience psychological distress, which they directly attribute to their work (UCCO, 2016). This is in line with Canadian research that has found high rates of mental illness among first responders, with paramedics, Royal Canadian Mounted Police (RCMP), and correctional workers being the most affected (Carleton et al., 2017). These findings highlight the need for improved training for new recruits, better support systems for correctional workers, increased psychological services for those who have experienced trauma, and more research into the issues surrounding trauma symptoms in correctional staff. Again, psychology can make an important contribution to these issues (Lambert & Hogan, 2018).

Career Paths

For students interested in pursuing a career that applies psychology to correctional settings, there are many options, both in and outside of the prison environment. Some of these careers require advanced graduate school training, while others do not. For those interested in working in the correctional environment directly with incarcerated offenders, there are opportunities to work as correctional psychologists or social workers, which would require graduate-level degrees in clinical or counselling psychology for the former position and a degree in social work for the latter position. Other institutional jobs where an undergraduate degree in psychology would be considered an asset include correctional officer, primary worker, parole officer, correctional program officer, and social program officer. Those working in these roles are responsible for helping offenders with their correctional plan and encouraging them along the path to successful reintegration. For more information on employment opportunities within corrections, CSC has provided information on its website (http://www.csc-scc.gc.ca/careers/index-eng.shtml).

For those interested in working in corrections, but not in an institution, there are opportunities to work as a correctional psychologist, probation officer, or parole officer in the community. There are also opportunities at CSC’s national and regional headquarters for staff trainers. For those interested in directly influencing correctional policy, there are research and policy positions within provincial departments of justice, within Canada’s Department of Public Safety, and within the Office of the Correctional Investigator. CSC’s national headquarters has many opportunities for those interested in researching or implementing public policy, including opportunities in the mental health branch, the public health branch, the research branch, the program evaluation branch, the women offenders branch, and correctional operations and programs. Generally, for these positions, an undergraduate degree in the social sciences would be required and a graduate degree in psychology would be considered an asset, although higher-level positions may require advanced degrees.

Police Psychology

Psychology can play a significant role in many aspects of police work, including the selection of recruits, law enforcement officer training, and the evaluation of police performance. Ultimately, psychology can contribute to improving law enforcement procedures. This section will outline some of the ways in which psychology can support policing in Canada.

Policing in Canada

Law enforcement in Canada is structured under the three levels of government: federal, provincial, and municipal. The Royal Canadian Mounted Police (RCMP) enforce federal laws and serve as the police force for all provinces and territories, except for Ontario and Quebec. Although some municipalities have their own police departments, many smaller municipalities contract their policing out to the provincial governments and the RCMP. In 2017, there were almost 70,000 law enforcement officers in Canada and almost 30,000 civilians employed with police forces in Canada (Conor, 2018). With a mandate that includes preventing and investigating crime, maintaining peace and order, and enforcing laws, policing is an important and challenging job, and a job where psychology can contribute.

Police Selection

Police work is demanding, stressful, and potentially dangerous and there are likely certain individual characteristics that are compatible with being a good police officer. Through police selection, we can increase the chances that those accepted for a police position have the highest potential for success. Selection practices are covered more comprehensively in the Industrial/Organizational chapter of this volume. The present section focuses specifically on issues related to police selection.

Through decades of research, psychology researchers have explored the individual traits most important to policing. Early efforts at police selection focused on assessing applicants’ intelligence (Terman, 1917), using personality tests to predict police performance (Humm & Humm, 1950), and psychiatric screening (Reiser, 1982). Although these factors are still considered important in police selection, more recent selection practices are more formalized and extensive, and usually include a formal selection interview, along with background checks, medical exams, drug tests, polygraph tests, situational tests, and tests of personality, cognitive ability, and physical agility (Cochrane, Tett, & Vandecreek, 2003). The RCMP uses tests specifically designed for police selection, including the RCMP’s Police Aptitude Test and the Six Factor Personality Questionnaire (RCMP, 2016). Overall, the knowledge, skills, and abilities determined to be essential for policing include honesty, reliability, sensitivity to others, good communication skills, high motivation, problem solving skills, and being a team player (Sanders, 2003). While the selection process is usually administered by police personnel, psychologists have played an important role in designing selection instruments and evaluating the selection process.

Evaluations of the selection process have examined how accurately various selection tools (e.g., interview, cognitive ability tests, personality tests) predict job performance. Results have been mixed, with interviews and most personality tests showing low predictive validity, although the Inwald Personality Inventory, which was developed to be used with law enforcement, appears to be more predictive of police performance (e.g., Aamodt, 2004; Cortina, Goldstein, Payne, Davison, & Gilliland, 2000). Moreover, cognitive ability tests are predictive of performance at the police academy but are less effective at predicting on-the-job performance (Aamodt). It is clear that more research in this area would be helpful in improving selection practices.

Police Training

Police departments generally offer training to their new recruits and provide training to all officers on a yearly basis. Training covers a wide range of topics, including defensive tactics, investigations, use of force, the criminal code, and the psychology of criminal behaviour. Training is generally offered at specialized colleges, such as the Canadian Police College or the Justice Institute of British Columbia but may also be offered at traditional post-secondary institutions. For example, Memorial University in Newfoundland offers a Diploma in Police Studies, which is intended for any students with an interest in policing or criminal justice, for police officers with educational and training needs, and also fulfills the post-secondary educational qualification for admission to the Royal Newfoundland Constabulary’s police cadet program (Memorial University, 2018).

Training is often delivered by police officers who have become experts in the relevant topic through training or experience. Academics may also work as trainers for certain topics, such as responding to individuals with mental illness (Morrissey, Fagan, & Cocozza, 2009) or negotiating with terrorists or hostage takers (e.g., Augustin & Fagan, 2011). Psychologists may also design the curriculum for training police officers. For example, in recognition that policing may be affected by racial bias, the training program “Fair and Impartial Policing” was developed, based on social psychology principles, to help police officers become aware of their unconscious biases and how they may affect police work (Fridell, 2016).

Psychologists may also work with the police to evaluate a training program to determine whether it is consistent with police responsibilities or to determine whether it had the intended impact. For example, to assess the impact of investigative interview training, Cederborg, Alm, da Silva Nises, and Lamb (2012) evaluated the post-training interviews of criminal investigators. They found that the interviews improved after training, suggesting that the training was effective.

Police Stress

Similar to working in a correctional environment (mentioned above) policing is considered one of the most stressful occupations (Carleton et al., 2017). In addition to the danger associated with police work, research suggests that police officers have much difficulty balancing their work and home life (Duxbury & Higgins, 2012). The increased stress is associated with poorer work performance, poorer physical health, and poorer mental health.

Most police agencies now recognize the negative consequences of the stressful police work environment and have set up programs to prevent and reduce stress among police officers. These programs tend to be secondary interventions, focused on improving individual responses to stress, and include informal support networks, physical fitness programs, relaxation training, professional counselling services, and debriefing after critical events (Patterson, Chung, & Swan, 2014). These types of interventions show limited effectiveness in reducing stress symptoms but are more feasible for use within law enforcement organizations than primary interventions, which require organizational change to prevent stressful conditions from occurring. It is clear that improvements can be made in training for new recruits, as well as better support systems and increased psychological services for police officers who are experiencing stress. More research into ways to reduce police officer stress and developing more effective stress reduction methods would help guide police agencies in providing these interventions. Psychologists can work with law enforcement to address these issues.

Criminal or Psychological Profiling

Criminal profiling is sometimes used by police forces to aid their investigations. Criminal profiling involves constructing a description of the perpetrator of a crime based on characteristics of the crime scene, statements from victims and witnesses, autopsy and other relevant reports, and knowledge of criminal behaviour (Doan & Snook, 2008; Snook, Eastwood, Gendreau, Goggin, & Cullen, 2007). This description can be used to develop a strategy to apprehend the unknown criminal and, if applicable, to link a series of similar crimes.

Despite the high level of interest in criminal profiling, there are few criminal profiler positions in North America. Those who work in these positions do not usually have graduate training in psychology; rather they have advanced through the ranks of law enforcement or have received advanced training specific to criminal profiling. Overall, there is little empirical support for the usefulness of criminal profiling to criminal investigations, with critics maintaining that it relies on a weak standard of proof. Indeed, Snook et al.’s (2007) review and meta-analysis concluded that trained expert criminal profilers were no better than laypeople at constructing criminal profiles, and that research needs to show that it is reliably precise before considering it a scientific technique that is useful to policing. Despite these criticisms, there is a concerted effort among researchers to conduct quality research on offender profiling and improve its application (e.g., Goodwill et al., 2013).

Psychological profiling may provide a larger contribution to legal investigations through psychological autopsies. Psychological autopsies, an examination of a deceased person’s mental state prior to his or her death, are relevant in determining a decedent’s testamentary capacity, in evaluating a claim of self-defence, and in determining whether a death was homicide, suicide, or accidental (La Fon, 2008; Ogloff & Otto, 1993). For example, an insurance company might be interested in determining whether a car crash was an accident or suicide. Because these autopsies are based on psychological theory, police officers and others in the legal system may call on psychologists and other mental health practitioners to conduct these investigations.

Career Paths

A background in psychology would be beneficial to anyone interested in becoming a police officer. Students interested in applying their psychological education to law enforcement may also find civilian opportunities with the RCMP or other police organizations. For example, the RCMP hires civilians to work in criminal intelligence and wellness and safety. For these types of jobs, an undergraduate degree in psychology would likely be considered an asset.

A graduate degree in psychology (or another social science) would likely be required for developing training curriculum or assessments to be used for personnel selection. Similarly, evaluations of police training or other police practices would likely be conducted by someone with a graduate degree in the social sciences. Those involved in this kind of work are often affiliated with an academic institution but may work directly for the police force.

Law enforcement agencies may also request assistance from those with advanced, graduate-level training on issues related to police procedures and investigations. For example, police agencies may consult with psychologists for duties related to negotiating with hostage takers or crime prevention initiatives. More information regarding police investigations is provided in the following section.

Finally, there are many research opportunities with police agencies. The RCMP and many smaller police agencies have research divisions. These research divisions, often composed of both civilians and police officers, conduct research to aid police operations. The Canadian Society of Evidence Based Policing brings together police practitioners, academic researchers, and public policy makers to conduct and share high-quality research to advance policing in Canada. This inter-disciplinary society holds workshops and shares research, and is open to academic researchers, including students, who are engaged in policing-related research and activities (http://www.can-sebp.net).

Eyewitnesses, Interrogations, and Confessions

On the 23rd of December, 1981, Tom Sophonow, then 29, was arriving back to his home town of Winnipeg from the west coast, where he was living. His plan was to visit his daughter, but when his ex-wife refused to allow it, he instead got his brakes fixed at a Canadian Tire and bought some Christmas stockings to give away to kids at a local hospital. Nearby, in a donut shop in St. Boniface, a 16-year-old counter server was murdered, presumably during a robbery. The crime was a major news story, and pressure to find the killer was intense. Several witnesses came forward, and police identified Sophonow as the prime suspect. After an intense interrogation where Sophonow was told his fingerprints were at the scene (a lie) and five witnesses had identified him (another lie) he confessed to the crime (though he later recanted this confession).

Sophonow was depicted in the press dressed as the perpetrator (i.e., in a cowboy hat, with a “Fu Manchu” moustache), creating conditions for a biased line-up procedure. After seeing the media coverage, witnesses identified Sophonow as the killer. Jailhouse informants later testified that he confessed to the murder while in jail (he had not; but one informant was rewarded by having 26 fraud charges against him dropped).

It took three trials and four years in prison before Sophonow was ultimately exonerated. In an inquiry after the third trial, it was determined that the police had used deeply flawed (but perfectly legal) procedures that had biased the process against Sophonow and had created a situation where a perfectly innocent man could be convicted of murder.

The Reliability of Eyewitness Testimony

As the Sophonow case demonstrated, eyewitnesses make mistakes. It is not clear what proportion of identifications are errors, but we do have some evidence that can give us a sense of the situation. In the US, the Innocence Project (innocenceproject.org) has resulted in the exoneration of over 400 people convicted of crimes that we now know, due to DNA evidence, they did not commit. In over 70% of those cases, the individual was convicted, in part, due to the testimony of a mistaken eyewitness (Time, 2017). We also know that in staged crimes, eyewitness error rates are often 50% or more (e.g., Bornstein & Zickafoose, 1999; Smith, Lindsay, & Pryke, 2000; Smith, Lindsay, Pryke, & Dysart, 2001). Importantly, incorrect eyewitnesses are typically just as confident as incorrect eyewitnesses, and confident eyewitnesses are convincing witnesses in court (e.g., Wells, Memon, & Penrod, 2006).

But why do eyewitnesses make errors? There is often a perception in the general public that our memory is a “wax tablet” and that events are etched upon that tablet and can be retrieved, intact, at a later time. However, this is simply not the case – our memories are malleable – they change over time. We construct our memories based partly on what we actually saw, but also based on what we expected to see, our attitudes, our beliefs, and our biases. We also know that stress and emotional arousal have an impact on our ability to process incoming information into memory (e.g., Morgan et al., 2004).

The Role of Police Interviews

New information, acquired after an event, can also change memories. In a series of classic studies, Elizabeth Loftus (e.g., Loftus et al, 1978) demonstrated that asking misleading questions, or providing misleading or incorrect information, led to errors. For example, the wording used when questioning witnesses (e.g., “saw the ‘Yield’ sign” when in fact they saw a “Stop” sign) changed how they reported what they saw; importantly, it also changed their actual memory for the event.

It is vital that police officers are well versed in how to effectively interview witnesses without providing new information or asking leading questions. For example, when interviewing witnesses after a reported armed robbery, it would be better to ask “What did you see?” rather than “Did you see the man with the gun?” It is exactly this principle that has led to the development of the Cognitive Interview (Fisher & Geiselman, 1992) which has been demonstrated to be an effective technique to increase correct recall for events without introducing errors or extraneous information (Köhnken, Milne, Memon & Bull, 1999).

The Cognitive Interview allows witnesses to give an uninterrupted description of what they saw, incorporating probing question to jog memory (e.g., “was there anything unusual about his appearance?”). The Cognitive Interview procedure also specifies to interview witnesses alone so that the recollections of other witnesses do not influence the witness’ responses.

Police Lineup Procedures

As noted in the Sophonow case, police used flawed lineup procedures that resulted in his false identification. Psychology researchers have been interested in how to reduce the likelihood of error in eyewitness identification for almost 50 years. Researchers have identified two main factors for consideration in the construction of a fair lineup procedure: a) the construction of the lineup itself, and b) the instructions given to eyewitnesses.

Although not always implemented, best practice is clear (see Yarmey, 2003; Wells et al., 2006) – witnesses should be shown photos one at a time (i.e., sequentially) and not all at once (i.e., simultaneously). There should always be at least six photos shown to eyewitnesses, and witnesses should not know how many they are going to see. In the photoset, there should only be one suspect, with the other photos containing “foils” (individuals known to be innocent). The person conducting the lineup should not be the investigator working on the case, in order to reduce the chance of bias. Consciously or unconsciously, if the person sitting with the witness knows who the suspect is, they give verbal or non-verbal cues as to who should be selected as the criminal (Yarmey).

Further, photos (mug shots) should be selected based on the description the witness gave of the criminal, and not how similar in appearance the photos are to the suspect. The person constructing the lineup must be careful to ensure that there are no cues either in the photos or the setting of identification that increase the likelihood of one photo being selected over the others (e.g., lighting differences, clothing cues, unique physical or facial features, tattoos). Finally, witnesses need to be instructed that the criminal may not be in the lineup. When all of these factors are combined, errors can be reduced by as much as half (Wells et al., 2006). This is important, because once an error is made, it is almost impossible to diagnose (Smith et al., 2000; 2001).

Demonstrating the failure to apply best practice, in Sophonow’s case, he was asked at one point in the investigation to put on a cowboy hat, similar to the one the witnesses had described, and his photo was taken. That photo was then shown to witnesses who identified him as the criminal (though they were likely just identifying his hat and moustache). Next, he was placed in a police lineup and was identified again by the eyewitnesses. Eyewitnesses were thus seeing him for a second time, and again selected the man they had recently identified rather than the criminal that they had seen at the scene of the crime.

Confession Evidence

You will recall (from above) that among the Innocence Project cases, about 70% of the time the wrongful conviction involved a mistaken eyewitness. However, it is also true that in about a quarter of those cases – where we know the suspect was actually innocent – they also confessed to the crime. This is simply shocking to the average person – how can an innocent person confess to a crime they did not commit? The answer is illustrated by the Sophonow case.

Under Canadian law, although suspects have the right to consult a lawyer, they do not have the right to have one present during questioning (e.g., Patry, Connors, Adams-Quackenbush, & Smith, 2017). In addition, police are trained in tactics to pressure suspects into confessing. Known as the “Reid Technique” (e.g., Kassin, Appleby, & Perillo, 2010) this 9-step process focuses on core issues of befriending the suspect, minimization of the severity of their crimes, and eventually breaking them down to confess to the crime. The Reid technique claims up to a 90% success rate (John E. Reid & Associates, Inc., 2014) when performed correctly. There is evidence that the technique and its principles will increase confessions from guilty suspects. The problem is that it also increases confessions from innocent suspects, and indeed, there is evidence that innocent suspects may be particularly susceptible to its procedures (Kassin et al, 2010a). This is particularly true for suspects who are under the influence of drugs or alcohol, have developmental or mental health issues, or are adolescents. The psychological pressure on people being questioned is intense, and as humans, we tend to focus on short term outcomes rather than longer term ones (Kassin, et al., 2010a). In these cases, the short-term goal (getting out of the unpleasant interrogation situation) outweighs the long-term consequence (confessing to a crime you did not commit). However, most people do not understand the power of the underlying psychological processes, thus this is one situation where psychological researchers can provide important insight to the public and the legal system.

Career Paths

Given the breadth of areas where psychology and the law intersect in the areas of police investigations, there are perhaps not surprisingly, several opportunities for careers in this area. Many psychological researchers provide expert witness testimony. As noted in the first section of the chapter, experts can provide briefs or reports to triers of fact, or to one side or another during a trial. Although expert witness testimony is relatively rare in Canada (as compared to the US, where it is quite common), psychological researchers can and do provide expert testimony on topics such as eyewitness identification and confession evidence. Typically, the people who are consulted as experts in these areas are academics and researchers.

The Role and Composition of Juries

Under Canadian law, the accused has the right to trial. Certain crimes are judge only (where maximum punishment is less than 5 years in prison), whereas others may be by judge and jury (e.g., when the maximum punishment is more than 5 years) but many lawyers choose not to have juries. Thus, in Canada, juries are typically not required and are relatively rare in criminal cases (Vidmar & Schuller, 2011).

Jury selection is under the jurisdiction of both federal and provincial law. In Canada, the number of jurors on a jury varies from as low as 6-8 for civil cases and up to 12 in criminal cases. Alternate jurors are sometimes selected in the event that a juror has to recuse themselves for any reason (this is more typical in long trials). Juries provide verdicts, but do not give advice on sentences except in very rare circumstances. Anyone who is over 18 or 19 (depending on the jurisdiction), who does not work in the legal profession, and who does not have a criminal record, may be called to serve on a jury. Different provinces have different restrictions (e.g., in New Brunswick medical practitioners are not eligible to serve on juries) but typically the eligibility requirements are minimal.

The next step in jury selection is voir dire which is the questioning of jurors to establish suitability. Potential jurors are disallowed for hardship or partiality reasons (e.g., they know of the crime, have made a decision on guilt, know someone involved). This is where the opposing attorneys have the opportunity to influence the composition of the jury. There are two types of challenges the Crown (prosecution) or defense can use: Peremptory challenges – where they can dismiss jurors without providing a reason; and Challenge for cause – where counsels can ask jurors specific questions to establish suitability. As we will discuss below, it is at this time that trial consultants can play a significant role in the outcome of trials.

The study of juries emerged directly out of research on group dynamics. Early work (e.g., Kalven & Zeisel, 1966) showed that two thirds of juries do not initially agree on a verdict, but by the end of their work 95% of juries come to consensus, in that they unanimously agree on a verdict. Although 90% of jury decisions will agree with the original tendency of the jury (i.e., the initial vote) there is a significant amount of discussion and persuasion that occurs in that context before a final verdict is reached.

Pre-Trial Publicity

There are many factors that can influence a jury. One that has received a great deal of attention, and which is considered by the courts regularly, is pretrial publicity. The basic idea is that media exposure to information about the case can reduce impartiality. For example, the Robert Pickton trial in 2006 (a serial murderer in BC, charged with the murder of 20 women; though he may be responsible for dozens more) came after years of publicity about the crimes, and more than 4 years of pre-trial (post arrest) publicity. More than 600 potential jurors were called to establish a jury.

In cases such as these, courts have the option to invoke publication bans, limiting what the press can publish about the case; however, in making these decisions, the court must balance the right of the accused to a fair trial (which publicity may undermine) and freedom of the press (which is a fundamental right under the Charter). There are also clear practical limits to bans – Canadian courts have no jurisdiction on foreign publications, and in an age of the internet, there are no limits as to where Canadians can get their news. If someone is determined to find out about a high-profile case, they will. The courts also have the ability to enact a change of venue, which can move the court to a new jurisdiction which would (presumably) allow for a more unbiased pool of potential jurors.

Physical Attractiveness of the Defendant

The “what is beautiful is good” stereotype is a well understood social psychological phenomena. Whether we like it or not, attractive people get more dates, are more successful, get better jobs, are liked more, and make more money (see e.g., Myers, Jordan, Smith & Spencer, 2018, for a review). Research has also suggested that this extends to the courtroom. For example, Wiseman (1998) conducted a large study presenting evidence of a purported burglary case to BBC Television viewers and asked them to call in with a verdict. Interestingly, he was able to vary the attractiveness of the criminal the viewers saw. Of the 64,000 people who called in to give a verdict, those that saw an attractive photo voted for conviction 31% of the time. The less attractive defendant was convicted 41% of the time.

The Judge’s Instructions

In a typical criminal trial, jurors receive two types of instructions: 1) instructions regarding the law; and 2) instructions regarding potential verdicts. Given the fact that jurors, by definition, are not legal professionals, both types of instructions are reasonable and necessary for the jury. Unfortunately, to ensure accuracy and to protect verdicts from appeals due to error, judges often use very technical legal jargon that most jurors (at best) struggle to understand (e.g., Daftary-Kapur, et al., 2010). Judges regularly instruct jurors to disregard pieces of evidence that have been presented at trial (Fleming, Wegener & Petty, 1999; Steblay, Hosch, Culhane, & McWethy, 2006). Although jurors indicate they will disregard the information, and may even believe they can, they do not, and the inadmissible information can result in biased verdicts.

Career Paths

Given the importance of juries in legal proceedings, it is not surprising that there is a role of trial consultants in this area. Indeed, there is a significant industry for jury consulting, particularly in the US and in civil cases, where there is a potential monetary outcome. Academics and researchers have been using juries to understand group decision making for some time, and this is why these researchers can provide important insights into the process.

It is the job of the jury consultant to understand what factors (attitudes, beliefs, socio-economic factors) can help a jury reach the verdict that is preferred by their client. The consultant, once they understand the context of the case and the desired makeup for the jury, can help the crown or defense use their peremptory challenges and challenges for cause to shape the jury in a way that creates the most favourable outcome potential for their client.

Conclusion

As you can see from the preceding sections, psychology and the law interface in many ways. These interfaces are broad ranging and provide opportunities for academics, consultants, and clinical psychologists to engage. Most of these professionals have advanced degrees, and many need to have provincially governed certifications, but there are opportunities for influence at multiple levels. Perhaps more importantly, the legal community increasingly understands the value of collaborating with trained professionals in the psychology field to improve and enhance the outcomes of the justice system in Canada.

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Please reference this chapter as:

Smith, S. M., Ternes, M., Stephens, S., & Carter-Rogers, K. (2019). Psychology and the law in Canada. In M. E. Norris (Ed.), The Canadian Handbook for Careers in Psychological Science. Kingston, ON: eCampus Ontario. Licensed under CC BY NC 4.0. Retrieved from https://ecampusontario.pressbooks.pub/psychologycareers/chapter/psychology-and-the-law-in-canada/