Poor Psychology Produces Poor Law
Ralph Underwager and Hollida Wakefield*
Both psychology and law are concerned with human behavior. Law
depends upon what everyone knows and believes about human behavior, upon
common knowledge. In contrast, psychology distrusts common knowledge
and substitutes knowledge based on empirical data systematically gathered
and rationally analyzed. This conflict may cause misunderstanding
between law and psychology. However, a common ground of both law and
psychology is the goal to reduce error. Neither discipline can claim
complete validity and reliability, but both continuously seek to improve
procedures and the understanding of human behavior. "Whatever
justice may be, surely it is not error" (Saks & Kidd l980-8l, p.
The only reason for the law to pay attention to psychology is the
expectation that it may improve the accuracy and effectiveness of the
legal system. However, within psychology there are differences in
the level of scientific status or credibility. Meehl (1989) draws a
distinction between psychological theories, techniques, and procedures
with high and clear validity and those with low and doubtful
validity. Testimony in court by psychologists should be limited to high
and clear validity material, or at the very least the limits and
qualifications of low and doubtful validity statements must
The Specialty Guidelines for Forensic Psychologists, prepared by
Division 41 of the American Psychological Association and the American
Board of Forensic Psychology, contain the principle that psychologists who
"provide professional psychological expertise to the judicial system
... have an obligation to provide services in a manner consistent with the
highest standards of their profession" (American Psychology-Law
Society, 1991, p.8). When the science of psychology is represented
to the U.S. Supreme Court in an amicus curiae brief by the largest
professional organization of psychologists, the American Psychological
Association, it is reasonable to expect adherence to the highest standards
of the profession and the highest level of competence (Bersoff,
1987). Anything less is poor psychology. If such a
representation is, in fact, poor psychology, the best prediction is that
the interaction will produce poor law.
This is what we suggest happened in the presentation of the APA's
amicus curiae brief to the U.S. Supreme Court in the Craig v. Maryland
case (110 S. Ct. 3157, 1990). The science of psychology simply
cannot do what the APA brief told the Supreme Court it can do. In
this case, poor psychology of low and doubtful validity has been
represented as good psychology with high and clear validity, causing the
Supreme Court to generate poor law that cannot serve the cause of justice
nor advance the goal of reduction in error and increased accuracy.
Effects of Testifying on Children
In child sexual abuse cases, the child's testimony is critical.
However, mental health professionals and legal experts are concerned about
the effects of court procedures on children. The concern is not only
that children will be traumatized by participating in court, but that high
levels of anxiety will adversely affect their ability to testify
accurately and persuasively. This concern for minimizing
"secondary victimization" of sexually abused children and
maximizing the accuracy and credibility of their testimony has led to
modifications of court procedures when the witness is a child.
Courts have dispensed with defendants' constitutional confrontation rights
when they judged it necessary to facilitate the testimony of alleged child
victims of sexual abuse and to protect the child from the psychological
trauma of testifying in the presence of the defendant. This is the
constitutional issue addressed in Craig v. Maryland.
There are numerous articles addressing the question whether children
are psychologically damaged by testifying in court in the presence of the
defendant. However, the psychological literature contains very few
quantitative studies; most are case studies, clinical impressions, or
anecdotal reports. Although three recent studies (Goodman, 1989; Flin,
Davies, & Tarrant, 1988; Runyon, Everson, Edelsohn, & Hunter,
1988) have addressed the effects of testifying on children, there are no
empirical studies that have focused exclusively on the psychological
effects of child witnesses testifying in the presence of the defendant.
APA Amicus Curiae Brief in Craig v. Maryland
Three years before Craig v. Maryland, the American Psychological
Association (APA) submitted to the U.S. Supreme Court an amicus curiae
brief (American Psychological Association, 1987) in a child sexual abuse
case, Kentucky v. Stincer (282 U.S. 730, 1987). The 1987 APA
brief noted this case raised the question of "the proper
accommodation of two cardinal principles" the fundamental
right of criminal defendants to personally confront adverse witnesses with
the State's interest in safeguarding the physical and psychological
well-being of minors (p.2). The important question, therefore, is
the potential harm of testifying in court in the presence of the
In the review of the literature, the 1987 APA Kentucky v. Stincer
brief concluded there were few data to support the proposition that
face-to-face confrontation has more negative effects for child victims
than it has for adults. However, 3 years later, in 1990, the APA
submitted an amicus curiae brief in Maryland v. Craig
(No.89-478). The Motion for Leave to File an Amicus Curiae claims
"the data generated by psychological research has (sic) developed
substantially since the APA submitted its Stincer brief in January
1987" (p.3). In the brief (Goodman, Levine, Melton, &
Ogden, 1991) the APA claimed that there was now "much stronger"
(p. 17) evidence to support the contention that children are emotionally
distressed by courtroom confrontation with their alleged abusers and
The resulting body of research supports the proposition that children
as a class may be especially likely to be emotionally distressed by
courtroom confrontation with their alleged abusers (p.17) ... Sexually
abused children frequently suffer serious emotional trauma and may be
particularly vulnerable to further distress through the legal process (p.
18) ... Child victims may be more likely than adult victims to suffer
substantial distress as a result of testifying in the physical presence of
the defendant (p.20).
In a 5-4 decision, the United States Supreme Court, in June, 1990,
ruled that the Confrontation Clause does not guarantee criminal defendants
an absolute right to a face-to-face meeting with the witnesses against
them at trial. It stated that a state's interest in the physical and
psychological well-being of child abuse victims may be sufficiently
important to outweigh a defendant's right to face his or her accusers in
court (Maryland v. Craig, Certiorari to the Court of Appeals of
Maryland. No.89-478, decided June 27,1990).
The four dissenting justices perceived this decision as a subordination
of constitutional rights to popular opinion. Justice Scalia, writing
for the dissent, stated, "Seldom has this Court failed so
conspicuously to sustain a categorical guarantee of the Constitution
against the tide of prevailing public opinion" (p.1).
The Supreme Court majority ruling in Maryland v. Craig twice
cites the APA amicus curiae brief and refers to authorities cited in the
brief. Justice O'Connor and the majority accepted the claim of the
APA brief that there is a "growing body of academic literature
documenting the psychological trauma suffered by child abuse victims who
must testify in court" (Maryland v. Craig ruling, p.16).
Mr. Dort Bigg, APA executive associate for legal affairs, said, "The
court adopted our entire argument. It's very clear the court
listened to what we had to say (DeAngelis, 1990, p.1).
Criticisms of the APA Brief in Craig v. Maryland
Our judgment is that the "much stronger" evidence since Kentucky
v. Stincer presented by the Craig v. Maryland APA brief to
support their assertion that serious emotional trauma may be inflicted
upon children through courtroom confrontation with their alleged abusers
is of low and doubtful validity. We believe the brief overstates the
data, fails to adequately present limits and qualifications of the studies
it cites, and mixes together empirical research, clinical observations,
clinical experience, and theories as if all had equal weight.
The brief claims, "Psychological theory and data about the
dynamics of sexual abuse victims' emotional distress make possible
individualized determinations about the need for protective measures
without requiring vulnerable children to directly confront their alleged
abusers in every case" (Goodman et al., 1991, p. 23). However,
the only support offered by the APA brief for this point is clinical
observation and theory.
Beginning with Meehl's (1954) book, Clinical Versus Statistical
Prediction, research has repeatedly demonstrated the unreliable nature
of clinical observations, judgments, and experience (Dawes, 1990; Dawes,
Faust, & Meehl, 1989; Garb, 1989; Kleinmuntz, 1990; Meehl, 1986; Turk
& Salovey, 1985). However, the APA brief presents statements
derived only from clinical experience as authoritative. The place of
clinical observation in the science of psychology is only as a source of
hypotheses that may be built into a theory. Until there are
quantitative data to establish an acceptable level of scientific support,
clinical observations are hunches and not facts.
The APA brief describes four speculative factors based on Finkelhor and
Browne's (1985) conceptual model of the consequences of sexual
abuse. In each paragraph it adds a conclusion for which there is no
evidence either in the model or any cited research. The four
unsupported conclusions are as follows:
The fear, when present, may be rearoused in the presence of the
defendant ... The strong emotion of betrayal may be rekindled when the
vulnerable child confronts a formerly trusted defendant ... When
confronted by the defendant, the child may reexperience the sense of
helplessness or powerlessness ... confrontation may arouse these complex
and powerful emotions and interfere with the child victim-witness'
ability to communicate reasonably. (pp.15-16)
There is no research testing this model or the hypotheses it
generates. Finkelhor and Browne offer their model as a speculative
"conceptualization ... that can be used in both research and
treatment" (p.530). There is no evidence supporting the
conclusions about the presence of the defendant which the APA brief adds
to the proposed model.
No credible data are given in the APA brief for the claim that since
the APA Kentucky v. Stincer brief in 1987 it has become possible to
make reliable and valid individualized determinations about the need for
protective measures for children. There are no data supporting the
claim that there is now "much stronger" evidence that children
are emotionally distressed by courtroom confrontation with the
defendant. The brief cites 49 articles and presentations in the
Table of Authorities. Of these, 16 are post 1987 and the Stincer
brief and could be seen as relating to children as witnesses.
Several of these are unpublished papers or reports. Only a few are
concerned with the emotional effects of testifying and only three are
based on empirical research. Thus the claim of much stronger
evidence and substantial development rests upon three studies.
To support claims that face-to-face confrontation with the defendant is
the chief source of trauma to children, the APA brief refers to Goodman
(1989), Runyon et al. (1988), Flin et al. (1988), and Berliner and
Barbieri (1984). The Berliner and Barbieri article is not a research
The Flin et al. report does not support the brief's claim. Flin
et al. (1988) interviewed child witnesses in criminal trials and observed
them giving evidence. They report on several possible sources of
stress for children but note that not all of the children were frightened
or affected by their role as a witness. Only 5 out of 46 children
who were interviewed prior to trial gave responses indicating fear of the
accused. Out of 22 children who were observed testifying, only 2
were observed becoming upset.
Runyon et al. (1988) studied the effect of court proceedings on 75
sexually abused children and report that testimony in juvenile court
appeared to be beneficial for the child, whereas protracted criminal
proceedings seemed to have an adverse psychological effect. However,
the factor behind this adverse effect was the lengthy delays in the resolution
of criminal prosecution. This does not support the brief's claim
that children are apt to be damaged by testifying in the presence of the
Therefore, two of the three research studies cited in the brief do not
support the claim of the brief. The third, Goodman (1989), is
identified by the brief as unpublished. To cite an unpublished and
non-peer-reviewed study as "much stronger" evidence raises
questions about the APA claim that peer-reviewed journals are necessary as
quality control for research.
In this study, Goodman and her colleagues (Goodman, 1989; Goodman et
al., 1988; Goodman et al., 1989) report on a research project on 218
children's reactions to criminal court testimony. They compared the
emotional disturbance of a group of testifiers to a matched control group
of nontestifiers. At different points, the children were interviewed
and standardized measures were completed and the testifiers were observed
In the courtroom interviews before testifying, the most frequent
negative feelings expressed by the children were testifying in court,
talking to the defense attorney, and seeing the defendant in court.
The most frequent negative feeling expressed after testifying was seeing
the defendant in court. But the use of this study to support the
claim that most children are fearful of confronting the accused is an
overinterpretation of the reported data. Although in the postcourt
measures most of the children gave negative responses about seeing the
defendant in court, this does not mean they were fearful.
It also does not mean that they are at risk for enduring emotional
distress. There were no significant differences in emotional
disturbance between the testifiers and the control group at 3 months
following testimony. Seven months following testimony, the
testifiers showed a higher level of disturbance compared to the control
group. The difference in level of disturbance at the 7-month
follow-up was due to the greater improvement of the control group.
The testifiers did not get worse. But at the final follow-up, when
the cases were resolved, the mental health of most testifiers was similar
to the controls. In addition, in the measures of psychological
adjustment, the presence of the defendant was not isolated as a separate
factor so there is no way to ascertain the degree to which this
contributed to any distress.
The APA brief assumes that a child fears an accused person and
therefore the capacity to testify is adversely affected. The
assumption that the fear is caused by having been abused by the defendant
already assumes guilt and violates the presumption of innocence.
This assumption also ignores the possibility that a child witness, in
the interim between an accusation and testimony, may have been taught by
adults to fear the accused. We believe that although there is no
research specifically addressing the possibility that child witnesses
learn to be afraid of the defendant through interviews or therapy, this
possibility must be considered. Fear may be learned from adults
repeatedly telling a child that the accused has hurt them, is bad, wicked,
should be punished, and is to be feared. The child also may have
been in therapy where fear of the defendant is inadvertently reinforced by
the therapist. The experience of fear is related to learned
expectancies (Reiss, 1991). The way 75% to 89% of phobic responses
originated in. childhood were through conditioning, modeling, and
instruction (Ost, 1987).
The last point in the argument of the APA brief is that research
demonstrates that children who are required to testify in the presence of
the defendant may refuse to testify or testify less completely, and jurors
may not be able to weigh children's testimony accurately. This may
then result in a disservice to the truth-seeking rationale of the
This truth-seeking rationale is described by Justice Scalia in Coy
v. Iowa (1988):
It is always more difficult to tell a lie about a person "to his
face" than "behind his back" ... the right to
face-to-face confrontation serves much the same purpose as a less
explicit component of the Confrontation Clause that we have had more
frequent occasion to discuss the right to cross-examine the accuser;
both "ensur[e] the integrity of the fact-finding process."
[citations omitted]. The State can hardly gainsay the profound
effect upon a witness of standing in the presence of the person the
witness accuses ... That face-to-face presence may, unfortunately,
upset the truthful rape victim or abused child, but by the same token it
may confound and undo the false accuser, or reveal the child coached by
a malevolent adult. It is a truism that constitutional protections
have costs. (p.866)
The APA brief states, "if a vulnerable child-witness is required
to testify under conditions of high emotional arousal, the confrontation
clause interest of providing reliable testimony will not be served"
(Goodman et al., 1991, p.26). However, the brief does not offer
credible scientific data to support the assertion that emotional arousal
may result in unreliable testimony. The first authority cited by the
APA brief to support a claim that a child victim-witness "testifying
under conditions of heightened emotional arousal is most likely to refuse
to testify, to be unable to verbalize answers to questions, or to be
tearful" (Goodman et al., 1991, p.26) is an anecdote from a court
record. Anecdotal accounts are not scientific evidence and cannot be
used to support a claim of scientific credibility.
The APA brief lists a study by Goodman, Rudy, Bottoms, and Aman (in
press) in the Table of Authorities. However, in that study,
reporting what is touted as ecologically valid research, the literature
review section includes "there is reason to believe that high levels
of stress are associated with better memory" (p.34) and cites four
studies. After describing the prediction prior to collecting data
that stress would facilitate memory, the summary of the results states:
Our general finding was that stress had a facilitative effect on the
children's reports. Specifically, planned comparisons revealed
that children at the highest stress levels recalled more information
than the other children and were less suggestible. Interestingly,
the children had to reach a level of great distress before beneficial
effects on. memory were evidenced. (p. 37)
It is difficult to understand how a research study by one of the
principal authors of the brief, Goodman, whose work is the most frequently
cited in the brief, could be overlooked, misrepresented, or not
understood. Yet, it denies both the premise and the conclusion of
the argument in APA brief.
The APA brief cites a study by Hill and Hill (1987) as indicating that
children are more likely to omit information and are somewhat more likely
to recall less correct information than children who testify in a private
room without the defendant present, as in a one-way closed circuit
television arrangement. This study is the only one cited for the
conclusion that the accuracy and completeness of children's testimony is
adversely affected by courtroom confrontation with the defendant.
However, the APA brief omits the fact that Hill and Hill's results do not
show statistical significance for four out of the five measures. The
two conditions did not show differences in free recall of central or
irrelevant details nor in correct or incorrect answers to specific
questions. The only significant difference (p < .021) was in the
number of do not know or no answers to specific questions with children in
the courtroom environment giving more such responses. This finding
could also mean that the courtroom environment did what it is supposed to
do: reduce speculative error and increase accuracy.
In summary, we conclude that the APA brief does not support its
assertion of much stronger evidence since 1987 with credible data.
It does not present data to support its claim that fear of courtroom
confrontation is characteristic of most children. It does not
present credible data showing an adverse effect on the quality of
testimony. Instead, it offers speculative opinion,
oversimplification, overinterpretation, and preliminary studies. We
believe the material presented is of low and doubtful validity. When
considering the question of a state interest compelling limitation of an
individual constitutional right, only the best information, based on sound
empirical research, with high and clear validity, should be presented by
the American Psychological Association to the Supreme Court of the United
States. In our opinion, the APA amicus curiae brief in Craig v.
Maryland did not do this.
What Does Craig v. Maryland Mean for Psychologists?
This Supreme Court decision demonstrates the great difficulties in the
relationship between the legal system and the science of psychology.
Our understanding of the Maryland v. Craig decision is that it is
likely to set up a requirement that no responsible mental health
professional can meet.
The Syllabus of the Supreme Court decision summarizes the requirement:
(c) The requisite necessity finding must be case specific. The
trial court must hear evidence and determine whether the procedure's use
is necessary to protect the particular child witness' welfare; find that
the child would be traumatized, not by the courtroom generally, but by the
defendant's presence; and find that the emotional distress suffered by the
child in the defendant's presence is more than de minimis. (p. iii)
This ruling appears to demand that there be an evidentiary hearing,
prior to the trial, at which there will be testimony, most likely by
experts, about the effect on the specific child of testifying in the
presence of the person accused. This puts psychologists in an
extremely difficult position. No professional can respond to this
requirement with anything other than subjective opinion. There is no
research that separates out the single factor of the defendant's presence
from all other factors in assessing the effects of courtroom testimony on
a child. Nobody knows how to determine whether the single factor of
the presence of the defendant, by itself, causes serious emotional
distress. However, the Supreme Court's ruling may require an expert
to predict that the presence of the defendant alone will cause serious
emotional harm. The ruling clearly states that this must be
"more than mere nervousness or excitement or some reluctance to
The clinical studies, anecdotal evidence, and research studies on the
effects of testifying on children report a variety of responses from
children, ranging from positive to negative. In addition, although
children and parents may describe the court experience as stressful and
children may report feeling negatively about seeing the defendant, few
children are described as experiencing severe emotional distress from
testifying. For example, Flin et al. (1988), cited by the brief,
describes only 2 of 22 children who were observed testifying becoming
upset. Goodman (1989) reports that only 3 (8%) of the children
testifying in preliminary hearings were rated as "very
distressed" by observers. (She reports that 11 [65%) of the
children testifying in trials experienced "some distress" or
were "very distressed," but she combines these categories so
they are not interpretable in terms of the Craig v. Maryland
Therefore, Craig v. Maryland will require psychologists to
predict a low base rate behavior becoming traumatized and
emotionally distressed by testifying and assert that it is the
presence of the defendant that causes this emotional distress. The
dilemma this creates is analogous to the prediction of violence.
Mental health professionals are notoriously poor at predicting violence,
especially in the absence of a history of violence. Monahan (1983)
pleads for second generation research that is actuarial and statistical to
improve clinical judgments. Despite this controversy, such
predictions are requested by the justice system because the decisions are
important and socially and legally relevant.
How can a prediction be made that a child will be traumatized by
testifying in the presence of the defendant? What kind of data are
necessary to present in a court of law the prognosis of severe emotional
trauma to a child? The attempt to establish the etiology, nature,
treatment, and prognosis of childhood disorders continues to leave most of
the major questions unanswered. There is nothing in this limited
area of child psychopathology concepts permitting the prediction of
serious emotional trauma as required by the Supreme Court.
The effort to protect children from harmful effects of testifying will
probably focus primarily on younger children. There are two problems
psychologists must consider in response to the Supreme Court's
requirement. The first is the issue of predicting anything given the
current state of our science. The second is the ability of
psychology to assess the level of trauma in young children with any
validity or reliability.
In order to arrive at any prediction, it is necessary to meet two
prerequisites. First, there must be an empirically supported theory
about the causal variables involved in whatever phenomenon we are
interested in predicting. Next, we must have a reliable method for
measuring those variables (Meehl, 1973). We are nowhere near meeting
those requirements in relationship to the Supreme Court's ruling that a
case-specific finding must be made on the effects of testifying in the
presence of the defendant. For most of the contexts in which
prediction has been studied, predictability is low for both clinical and
actuarial methods, although statistical prediction has been shown to be
more accurate than clinical prediction (Dawes, 1990; Dawes, Faust &
Meehl, 1989; Meehl, 1954, 1986). If clinicians attempt to inject
some form of subjective judgment, the only effect is to reduce the
accuracy of the simple actuarial procedure (Dawes, 1988, 1990).
The second issue in assessing the future trauma to young children is
that it is difficult in general to make valid and reliable assessments of
young children. Adult criteria of psychopathology cannot be applied
indiscriminately to children (Achenbach, 1980; Bemporad & Schwab,
1986). Children must be assessed in terms of their need for return
to continued normal development (Trad, 1990).
Meeting the Supreme Court requirement demands a taxonomic category that
must demonstrate acceptable validity and reliability. The DSM-III
and III-R (American Psychiatric Association, 1987) represent the best
effort to produce taxonomies for childhood and adolescence
disturbance. However, there has been continued criticism of the
DSM-III childhood and adolescence section. Quay (1986) summarizes
multivariate analytic studies bearing on this section and concludes,
"There is very, very little evidence from the multivariate literature
that supports separate and distinct syndromes of anxiety and depression in
children" (p.154). Yet these are the very behaviors that are
most likely to be predicted as showing that a young child cannot testify
in the presence of a defendant.
There are few clinical assessment tools that have acceptable levels of
validity and reliability for young children. None of the tests with
adequate validity or reliability provide information useful for predicting
a child's response to testifying. One of the more astonishing facts
about psychology and children is that forensic psychologists continue to
use procedures for which there is no demonstrated validity or reliability
(Bersoff, 1986). These unsupported procedures include drawings,
projective tests, play therapy, and anatomical dolls (Levy, 1989; Terr,
1988; Underwager & Wakefield, 1990; Wakefield & Underwager, 1988).
Can experience enable a psychologist to meet the Supreme Court
requirement for case-specific prediction on the effects of
testifying? An APA (1982) task force concluded there was no evidence
that professional competence is related to years of experience as a
psychologist. Garb (1989) reviewed the research on clinical
experience and accuracy of judgments and found no relationship between
experience and accuracy. The only effect experience has comes from
mastering techniques that have acceptable validity and reliability.
Given all these considerations, a psychologist cannot, as a responsible
professional, testify that a child will be so seriously damaged by the
sole factor of the presence of the defendant that the use of a videotaped
testimony procedure is mandated.
Also, the fundamental ethical requirement not to harm people or to
abridge or deny their individual or civil rights is also involved when a
psychologist testifies in court. When there is an allegation of
sexual abuse, the lives of all individuals involved are affected.
Psychologists therefore must ensure that their testimony is based upon
credible scientific data. If that cannot be done, the psychologist
must avoid giving testimony.
The kind of information that psychology ought to be making available to
the justice system is noted by Meehl (1989):
An important kind of expert testimony should consist of a scholarly
showing that no trustworthy expertise exists (either side!) in certain
areas. But because of widespread scientific incompetence among
practitioners, such critical testimony will collide with the customary
legal standard ... If our evidentiary rules do not permit this critical,
consensus challenging role for the expert ... then the idea of greatly
restricting areas of psychological expertise ... becomes regrettably
more appealing. (p 547)
The APA brief encourages overly optimistic concepts of what psychology
and psychologists can do. The Supreme Court Ruling in Maryland v.
Craig sets up impossible procedures and goals and can only have the
effect of further complicating and confusing the attempt to deal fairly
and accurately with allegations of child sexual abuse.
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Correspondence should be addressed to Ralph Underwager, Institute for Psychological Therapies
, 5263 130th Street East
, Northfield, MN 55057-4880