Corresponding slides to CSLS Socio-Legal Seminar Series for students as Nicholas deB Katzenbach Fellow, New Directions in Socio-Legal Studies, University of Oxford.

1. PSYCHOLOGY OF LAW:
3 CRITICAL EMPIRICAL LEGAL PROBLEMS

2. OVERVIEW
• Psychology is a science!
• What psychology is not…
• What sorts of psychologists are there?
• The role of psychologists in the criminal justice system…
• Forensic psychology: Key applications
• Psychological profiling
• Memory in the courtroom
• Reasoning about evidence

3. PSYCHOLOGY: THE BASICS
 Psychology is the study of human behaviour. Psychologists
seek to describe, explain, and predict human behaviour.
 Empiricism: Quantitative/statistical approaches
 Descriptive and prescriptive goals
 Paradigm shifts: Psychoanalysis; Behaviourism; Cognition;
Neuroscience; Humanism…

4. WHAT PSYCHOLOGY IS NOT…
 Famous Projective Tests: the use of ambiguous stimuli to which the subject is free to
respond in a highly individualistic way and is unlikely to be aware of how the response will be
interpreted by the examiner (See Pervin & John, Ch. 4).
 Frank (1939) suggested that standardized tests told little about people as individuals. He
argued for the use of tests that would offer insight into an individual’s private world of
meanings and feelings.
 That way people could impose their own structure and organisation on stimuli and may
therefore express the dynamic framework of personality.

5. FAMOUS EXAMPLE: THE RORSCHACH INKBLOT TEST
 10 Cards developed from thousands of inkblots produced form putting ink on paper and
folded to create symmetrical but ill-defined forms.
 When participants are relaxed, they are asked to look at each card and tell the examiner what
they see…
 The examiner is interested in how the response is formed, the reasons for the response and
its content.
 The assumption is that individual’s interpretations correspond to their psychological
functioning…

6. THE RORSCHACH INKBLOT TEST – NOW YOU TRY…
What do you see in this picture?
Most people see ‘dancing bears’ or ‘dancing frogs’
While clever and representative, does it tell us anything useful about the individual?

7. OVERVIEW OF FORENSIC PSYCHOLOGY
 Forensic implies matters related to law and/or courts.
 Forensic psychology (1970s); collaborations between
psychiatrists and the legal system, e.g., mental health
assessments.
 APA, BPS, and EAPL main regulatory bodies…
 Career trajectory of forensic psychologists:
 Undergraduate degree +
 Masters (taught) + (research) or +
 DPhil, DClinPsych or
 Supervision and professional affiliation/ Applied
research
 Let’s now take a look at three empirical legal problems
that psychological research has helped to address…

8. PSYCHOLOGICAL PROFILING
 Offender profiling involves inference from possible actions
at a crime scene. Such inferences are held to allow police
investigators to infer personality attributes of the offender
in question.
 FBI Academy at Quantico in Virginia- usually called upon
for very serious crimes…
 Classic example: Organised and disorganised offenders
(Holmes and Holmes, 1984).

9. PSYCHOLOGICAL
PROFILING
CONTINUED…
 Despite its popularity, the utility of profiling has often
gone unevaluated (Alison et al, 2003).
 Profiling may only help in about 20% of cases.
 Successful cases appear to capture the imagination more
than unsuccessful cases, and there is a possibility of police
and public bias in this regard.
 Two distinctive approaches: Britton vs Canter
 Where does the problem lie for legal evaluation?
 Example: Rachel Nickell
 Psychological interventions can pinpoint the problems
explicitly.

10. THE PROBLEM
WITH
PSYCHOLOGICAL
PROFILING
See Alison et al. (2003)
 Ambiguity and the dangers of profiling.
 Creative interpretation can be biased.
Classic Research:
 Group A and Group B (police officers)
 Same crime details and same offender profile
 Genuine or Fabricated description of offender
(contrasting)
 Rate how accurate…
 No differences
 Barnum effect…

11. FALSE MEMORIES AND MEMORY
IN THE COURTROOM
 The Science of Memory and Memory Errors…
 Rarely have disparate disciplines been so involved together
in public debate as in the debate about the existence of
false memory…
 Studies of human memory show that human memory is
far from perfect…
 We do not remember all that we experience, nor do we
retrieve memories matching actual experience perfectly…
 Classic studies, e.g., Bartlett (1932): memories are
reconstructed… and Luria’s ‘Mind of a Mnemonist’ (1954)
demonstrating that perfect recall is a rarity...

12. LET US TAKE A
LOOK AT OUR
MEMORY…
 Thread, pin, eye, sewing, sharp, point, prick, thimble, haystack,
pain, hurt, injection…
 Raise your hand if you recognise any of the following from the list:
 Thread
 Pin
 Eye
 Sewing
 Sharp
 Point
 Prick
 Thimble
 Needle
 Haystack… [That’s right – needle was a planted error!]

13. THE SCIENCE
OF FALSE
MEMORY
 Deese (1959) used such lists as semantically related words
to induce false recognition…
 There was revival of false recognition tasks by Roediger
and MacDermott (1995)…
 Lists, free recall tests, conditions: unrelated words and
related words…
 Results: lures were falsely recognised more often…
False autobiographical memories
 How does this false recognition effect resemble false
memory in the real world?
 What about the therapeutic context (e.g., Appelbaum et
al. 1997)
 But can thinking about a possible event and talking about
it increase the belief that it actually happened?
 Surprisingly – Yes! Let us now find out…

14. MORE ABOUT FALSE
AUTOBIOGRAPHICAL
MEMORIES
 Mazzoni & Memon (2003): Imagination and creation of
false autobiographical memories…
 82 Participants were given a Life Events Inventory (LEI)
 Each participant asked whether they experienced each of
20 events before age 6
 2 events critical to test: milk tooth extraction and
removal of skin from baby finger (does not happen as a
medical event)
 They rated how certain they were that the events
happened…
 3 stages: Week 1: LEI, Week 2 imagine event(s), Week 3
LEI
 Results: Imagination increased the likelihood that the
person believed they experience a false event as
occurring…

15. RELEVANCE TO
LEGAL
CONTEXTS
 Can a severely traumatised person not remember an
event for a significant amount of time?
 Do recovered memories exist?
 How can we prove beyond doubt that such memories
are accurate?
 Majority view: that the problem is that such memories
cannot be forgotten (Loftus, 2003).

16. KLUFT (1997) –
RECOVERED
MEMORIES DEBATE
 34 Patients with Dissociative
Identity Disorder (DID, in this
personality disorder at least two
identities vie for control…)
 In therapy sudden recall of abuse
was recalled in particular cases,
although patients never recalled
the abuse before according to
their records…
 Investigative permissions were
obtained to ask other authorities
and family members.
 56% were confirmed by
secondary sources, including such
disclosures as deathbed
confessions etc…?
 What about other people…, or is
DID a special case?

17. THE PARADOX
OF REPRESSED
MEMORY AND
THE LAW
 While psychologists focus on the narrative truth as the
patient relates it, law concerns itself with what is the
truthful past (Zoltek-Jick, 1997).
 But if the law relies on memory accuracy, such as
witness testimony and psychological research
suggests that memory is largely reconstructive, then
we have a problem.

18. THE STATUTE
OF
LIMITATIONS
AND
RECOVERED
MEMORIES
 All lawsuits must be filed within a legislatively prescribed
‘limitations period’ dating form the occurrence of the act
that caused the harm (that is, in many jurisdictions…).
 Rationale 1: protect defendants and the courts when the
search for truth is impaired by the loss of evidence, fading
memories etc.
 Rationale 2: If a person has truly been harmed, then he
or she will be ready, willing, and able to file suit as soon
as it is possible.

19. THE MR. SCIENCE EXPERIMENTS (POOLE AND LINDSAY, 1998)
 3-4 year olds had science lessons with Mr. Science.
 Afterwards they were interviewed and asked to tell the interviewer everything about the
lesson.
 Their reports were extremely accurate
 3 months later parents were sent a story book containing stories about lessons with Mr.
Science (accurate and inaccurate)
 Inaccurate: Mr. Science touched them, and he put a ‘yucky’ object in their mouth.
 Leading and open questions… For example…

20. THE MR. SCIENCE EXPERIMENTS (POOLE AND LINDSAY, 1998)
 2/5 children mentioned the inaccurate story as if it was real
 Leading questions increased the rates of false reporting: over 50% of the children answered
‘yes’ to a question about whether Mr. Science had put something ‘yucky’ into their mouth.
 They also went on to add details to the story
 Challenges about the truth of their claims meant declines in false claims for the older
children…

21. EXPERT
KNOWLEDGE
 Besides assessing child sexual abuse allegations, expert
knowledge is by no means perfect even in other fields.
 For example, children aged 9 to 12 were able to feign
brain damage well enough to fool psychologists into
diagnosing them as suffering form neurological problems
(Faust, 1987).
 The experts’ effort may succeed in convincing a jury
because jury’s may over estimate the abilities of experts
(Faust & Ziskin, 1988).

22. LEGAL REASONING & BIAS
The Billie-Jo Jenkins case
The 13yr old Billie-Jo was battered to death with an iron tent peg
while she painted the patio doors of her home in Hastings.
Her foster father Sian Jenkins was accused and convicted of the
murder but recently acquitted.
Prosecutor Nicholas Hilliard said that the evidence pointed to Sian
Jenkins being the killer…
Defense Christopher Sallon QC, told the press that the conviction of
Sian Jenkins amounted to a miscarriage of justice.
How could this happen?

23. SOME
TRADITIONAL
PERSPECTIVES
ON HOW PEOPLE
THINK
 What are the contemporary perspectives on how people
think and reason about the world around them?
 People reason by generating internal ‘mental models’ of
the premises…
 People reason in a ‘probabilistic’ manner when
considering premises…

24. APPLYING TRADITIONAL THEORIES OF REASONING
TO HOW PEOPLE REASON WITH EVIDENCE
The Mental Model Theory (logically reasoning with evidence)
 Mental Model: ‘…represents a possibility, and its structure and content capture what is common to the
different ways in which the possibility might occur’ (Johnson-Laird, 1999, p. 116)
 A mental model is constructed and the conclusions are drawn:
 Premises
 If Sian Jenkins had a motive, then he killed Billie-Jo
 Sian Jenkins did not have a motive
 Conclusion
 then he did not kill Billie-Jo
 Principle of truth: People construct mental models according to what they consider to be true

25. THERE MAY BE AN ATTEMPT TO CONSTRUCT ALTERNATIVE MODELS
Premises
If Sian Jenkins had a motive, then he killed Billie-Jo
Sian Jenkins did not have a motive
[Alternative=] he may have been rejected romantically by Billie-Jo (e.g., Prosecutor Hilliard)
Conclusion
 If a counterexample is found then the conclusion Sian Jenkins did not kill Billie-Jo is taken to be invalid
(e.g., Prosecutor Hilliard’s proposition)
 If a counterexample (falsification) is not found, then the conclusion is taken to be valid (had there been
no alternative)
 The jury could not reach a verdict in two consecutive trials

26. Probabilistic Theories (probabilistically reasoning with evidence)
‘everyday rationality is founded on uncertain rather than certain
reasoning…, and so probability provides a better starting point
an account of human reasoning than logic’ (Chater & Oaksford,
2001, p. 204).
Premises
If Sian Jenkins had a motive, then he probably did kill Billie-Jo
Sian Jenkins did not have a motive
Conclusion
then he probably did not kill Billie-Jo
The principle of uncertainty: we are motivated to increase our
knowledge as much as possible rather than to achieve complete
certainty
But we can only convict someone of a crime if there is no
doubt’ of their guilt (Jury in the Jenkins case)

27. HYPOTHESIS TESTING
Now let us see how good we are at reasoning…
 Think of a numerical rule that the number sequence 2-4-6 conforms to…
 Now generate your own sequences with sets of three numbers
 Call them out…. Remember these for later…
Hypothesis testing: is an essential part of human reasoning which involves the comparison of
internal thoughts to external facts in order to interact with the world in a way that reflects reality
(Poletiek, 1996; 2001).
Confirmation bias: The search for evidence that is consistent with one believes to be true, and
the avoidance of evidence that is inconsistent with what one believes (e.g., Wason, 1960; Evans,
1989).

28. CONFIRMATION BIAS AND PREJUDICE IN THE COURTROOM –
CAN HYPOTHESES BE TOO NARROW?
H
-test
The 2-4-6 Task
B
Anne Frank
Prejudiced Belief
Sian Jenkins “Billie-Jo’s murderer has escaped detection
because of the dreadful errors in the police investigation and their determination to convict me at
all costs.” (http://news.bbc.co.uk/1/hi/england/4661252.stm Thursday 9th Feb, 2006)

29. FALSIFICATION AND
PREJUDICE IN THE COURTROOM
 The traditional view is that people find it impossible (e.g. Poletiek, 1996; 2001) or at least very difficult to
search for falsification (e.g., Johnson-Laird, 1999).
 Recently research has begun to show the conditions under which people may find it both possible and
easier to falsify, for example when competing with an opponent hypothesis tester (Cowley & Byrne,
2004; 2005, Cowley, 2017).

30. THE GREAT LEGAL PROBLEM: PRIOR CONVICTIONS
 Megan’s Law (USA)
 Recent provisions (CJA, 2003, UK)
 Similarity principle (substantive probative value)
 Trusting lay fact finders (Review of the criminal courts of England and Wales, HMSO, 2001)
 Law needs ways to evaluate whether the new provisions work…

31. EXPERIMENT: PRIOR CONVICTION EVIDENCE
 Seventy-two participants, 24 men and 48 women. Age range 18- 53years, mean 22.4years
 Design 3 x 2 between subjects (left-handedness, right-handedness, no handedness) x
(previous conviction, no previous conviction) [6 conditions]
 Materials: The same scenario and measures either with or without a previous conviction and
sort of handedness:
 Forensic evidence showed that the blow was delivered by a left-handed person. David Baxter
is left-handed
or
 Forensic evidence showed that the blow was delivered by a right-handed person. David
Baxter is right-handed

32. CONFIRMATION
BIAS – PRIOR
CONVICTIONS
 The number of people who came to a ‘guilty’ ‘not guilty’ or ‘cannot decide’
verdict in the presence of evidence of handedness (RH or LH) and/or previous
convictions (PC).
 People tend to significantly choose ‘cannot decide’ more often except when a
previous conviction is accompanied by evidence of a left handedness match
(PC and LH).

33. RATINGS OF GUILT
 Underlying ratings of guilt were higher when a previous conviction was
present than when a previous conviction was not present regardless of
the number of previous convictions (Kruskal Wallis, chi2= 12.282 (5), p
<.031).

34. Experiment 1 continued...
 The proportion of alternative possibilities indicative of innocence generated in the absence
and presence of a similar prior conviction.
 Suppression effects in mind…
0%
5%
10%
15%
20%
25%
30%
Control RH LH PC PCRH PCLH
Control
RH
LH
PC
PCRH
PCLH

35. POINTS FOR
DISCUSSION
 How can psychological research on law help law do law better?
 Is there a role for empirical legal research in the modern law curriculum?
 What are the common themes of each of the three pieces of research and how are they
relevant to law?
 What are the common problems that law has when it comes to conducting empirical legal
research?

36. USEFUL REFERENCES
 Bornstein, B. H. (1999). The ecological validity of jury simulations: Is the jury still out? Law & Human Behaviour, vol.
23(1), pp.75-91.
 Bright, D. A., & Goodman-Delahunty, J. (2006). Gruesome evidence and emotion: Anger, blame, and jury decision-
making. Law & Human Behaviour, vol. 30(2) , pp.183-202.
 Bull-Kovera, M. B. (Ed.) (2017). The Psychology of Juries. Washington, USA: American Psychological Association
(APA). USA.
 Cowley, M. (2017). Hypothesis Testing: How We Foresee Falsification in Competitive Games. Saarbrucken,
Germany: Lambert Academic Publishing
 Cowley, M. (2017). ‘The Innocent v The Fickle Few’: How Jurors Understand Random-Match-Probabilities and
Judges’ Directions when Reasoning about DNA and Refuting Evidence. Journal of Forensic Science & Criminal
Investigation, 5(3): 2017
 Cowley, M. (2014). M-Level Quantitative Methods in Socio-Legal Studies: A Methodology Clinic Workbook – CSLS,
University of Oxford. Law Educator: Courses, Materials, & Teaching SSRN eJournal Catalogue.
 Devine, D.J. (2012). Jury decision making: The state of the science. New York: New York University Press.

37. USEFUL REFERENCES
 Cowley-Cunningham, M. (2018). Children & the Law: Courtroom Research Basics for Busy Practitioners (Booklet –
Presentation Slides). Law & Society: Courts eJournal, vol. 12, Issue 36: 25 May, 2018. Law & Society SSRN
eJournal Series sponsored by the Maurer School of Law, Indiana University.
 Cowley-Cunningham, M. (2019). Psychology of Law: 3 Critical Empirical Legal Problems. Law & Society: Criminal
Procedure eJournal, vol. 14, Issue 24: 24 April, 2019. Law & Society SSRN eJournal Series sponsored by the Maurer
School of Law, Indiana University.
 Cowley-Cunningham, M. (2020). For the Sake of Justice: Societal Expectations of Foreseeability Weigh Heavily for
Jurors Judging in Child Death Cases. Forthcoming.
 Cowley-Cunningham, M., & Colyer, J. B. (2019). Asymmetries in Prior Conviction Bias. Law & Society: Criminal
Procedure eJournal, vol. 14, Issue 25: 01 May, 2019. Law & Society SSRN eJournal Series sponsored by the Maurer
School of Law, Indiana University.
 Cowley, M., & Colyer, J. B. (2010). Asymmetries in prior conviction reasoning: Truth suppression effects in child
protection contexts, Psychology, Crime and Law, 16(3), 211-231.

38. USEFUL REFERENCES
 Alison, L., Smith, M. D., & Morgan, K. (2001). Interpreting the accuracy of offender profiles. Psychology, Crime and
Law, 9(2), 185-195.
 Johnson-Laird, P. N. (2006). How We Reason. Oxford, UK: Oxford University Press.
 Devine, D. J. (2012). Jury Decision Making: The State of the Science. New York, USA: New York University Press.
 Mazzoni, G., Memon, A. (2003). 'Imagination can create false memories'. Psychological Science, 14(2), 186-188.
 Alison, L., Smith, M. D., & Morgan, K. (2001). Interpreting the accuracy of offender profiles. Psychology, Crime and
Law, 9(2), 185-195.
 Johnson-Laird, P. N. (2006). How We Reason. Oxford, UK: Oxford University Press.
 Devine, D. J. (2012). Jury Decision Making: The State of the Science. New York, USA: New York University Press.
 Mazzoni, G., Memon, A. (2003). 'Imagination can create false memories'. Psychological Science, 14(2), 186-188.