Module 5

Types of Court and role of psychologists

• Serving as a consultant to the court is a relatively new role for the psychologist.

• Traditionally, forensics has been considered the area of psychiatric expertise.

• A consultant's role is advisory and collaborative;

• consultants have no line power of administrative authority over those with whom they are
requested or assigned to work.

• Services of a forensic psychologist may be requested at any of the three stages in the judicial
process (pretrial, trial, and posttrial).

• The best known role of the psychologist is that of an expert witness in criminal proceedings.

• The legitimacy of this role was clearly established in the landmark case of Jenkins v. United
States (1972).

• Psychologists also assist the court by making evaluations of defendants to determine

competency to stand trial.

• Similarly, psychologists may provide expert opinions regarding an individual's competency to

be a witness.

• In civil cases, the psychologist may render an opinion concerning a person's capacity to
manage business, financial, and property affairs.

• In domestic relations cases, psychologists may appear as witnesses for clients seeking child
custody.

• In addition, psychologists who have worked as vocational counselors are uniquely qualified
to serve as expert witnesses in personal injury cases.

• In many court clinics, psychologists conduct presentence evaluations and make

appropriate recommendations to court regarding case disposition.

• Ideally, doctoral students interested in forensic psychology should be able to specialize in

this area.

Role of Forensic Psychologists

• Forensic Psychologists apply the principles of psychology to the field of a criminal

investigation.

• Forensic Psychology is used in criminal trials to ascertain whether the person in question’s
mental state meets the requisite legal standards.

• The  roles that psychologists perform when they become professionally involved in criminal
proceedings are as follows:

• Evaluations and Assessments

• To assess a person’s psychological state for legal purposes, evaluations and assessments are
completed by forensic psychologists.
 • Evaluations are done to acquire information for criminal court proceedings, for sentencing
criminals or parole hearing,  or for family courts or civil courts, and forensic psychologists
are responsible for assessing and reporting the results of the evaluation, and any decision
made based on these reports is up to other legal professionals.

• It is the duty of the evaluator to inform the person being evaluated that everything in
session will be open to scrutiny in a forensic report or expert testimony.

• Forensic psychologists also function as expert witnesses as they are called by the court to
testify about the results of their evaluations.

Treatment

• Forensic psychological treatment includes implementing measures and treatment of

psychological problems that help in reducing problems and prevents crime.

• In both criminal as well as civil cases, treatment providers are asked to provide psychological
interventions who need it or who request for it.

• In criminal cases, the forensic psychologists can work with those persons who have once
committed a crime and also sentenced for it but are repeating those crimes again and
again, or with the victims of drugs or alcohol abuse, mental illness, or anger issues.

• On the other hand in civil cases, forensic psychologists have to work with families going
through divorce or custody cases, and they can also provide treatment to persons who
have suffered psychological injuries because of trauma. 

Consultations 

• Forensic Psychologists help to better understand the human behaviour of criminals,

witnesses, victims, jury to attorneys or other legal professionals, by applying psychological
expertise and research.

• Consultations can take several forms, such as:

Law Enforcement Consultations

• It includes assisting with criminal profiling, determining the psychological fitness of officers,
or expertise on criminal behaviours.

• Despite the fact that criminal profiling isn’t very widely used in the investigation, it’s an
appealing aspect of psychology to forensic psychologists, there are several methods and
approaches related to criminal profiling, but there is still a doubt about the efficiency and
accuracy of criminal profiling in general.

Trial consultants

• Forensic Psychologists work with legal professionals, such as attorneys, and help them in
preparing cases, jury selection, development of case strategy, and witness preparation.

• Under this Forensic Psychologists rely heavily on research, to best advise the persons with
whom they are working with.

• As trial consultations are often hired by one specific side in a trial, psychologists faced with
many issues, so it’s the responsibility of the psychologists to be neutral while consulting and
 shall not choose aside to support and consequentially omit or create information that
would be beneficial to one side or another.

Expert Testimony

• Expert witnesses have the ability to testify more knowledge of a situation or topic as they
are experts in certain topics and have specialized knowledge about it, unlike fact
witnesses, who are limited only to testify about what they know or have observed.

• In matters such as mental health or other areas such as social, experimental, cognitive, or
developmental,  expert witnesses in forensic psychology are called upon to testify. 

• Earlier expert witnesses primarily served the court rather than the litigants, but nowadays
this does not happen and recruitment of expert witnesses is completed by trial attorneys.

• The judge has the power to decide whether an expert witness will be accepted or not. 

• Academia / Research 

• Academic Foreign psychologists engage in teaching, training, and researching students about
the foreign psychology, about the psychology of criminal behaviour, courtroom,
investigation, assessment, and treatment of offenders and also teache how to carry out
criminal psychological research.

• But however the role of academic foreign psychologists is not only limited to teaching, its
main role is to carry out research in the field of interest. Every academic foreign psychologist
has their own research interest and they research on its topic and get specialized knowledge
about it by researching it.

Role of forensic psychology in the courtroom

• When the forensic psychologists are called by the police, lawyers, or judges to interview
and assess criminals, its role begins, and the information acquired from these interviews
are used as evidence in the court of law. 

• In a medico-legal ward, under a court mandate, a Forensic Psychologist can work towards
the rehabilitation of a criminal or a victim.

• According to Section 45 of the Indian Evidence Act 1872,  “the court can take help of the
experts, whenever it has to form an opinion upon a point of foreign law or of science or
art, or as to the  identification of handwriting and the opinion of such an expert is
relevant.”

So according to this a forensic psychologist by presenting facts can assist the courts to execute the
law in a just manner, these facts are in the form of reports of interviews and assessment of the
person in question.

• The role played by forensic psychologists will shed a light on the “men’s rea” of the person
in question, mens rea is the state of mind of the person who generally pleads that he is not
guilty in the witness stand during a trial.

• Those who plead guilty, claim that they have done the crime under influence of some
substance or they were unaware that they have engaged in the crime, this gives the defense
an opportunity to plead for lesser punishment or delay the final verdict of the judge.
 • In such cases, experts are required to step in and assimilate the interview and assessment
of the person in question to judge and give an opinion on how true the person’s statement
is, this helps the judge to execute a judgment which is fair and also is in light of the safety
of society and the individual.

• Section 45 of The Indian Evidence Act 1872, also allows the forensic psychologist to give
their expertise in solving criminal investigations, and this gives the opportunity to
psychologists to make their forensic methods, according to the needs of cases.

Juvenile forensic psychologists

• Juvenile forensic psychologists, in the juvenile courts, account for the special needs and
concerns of youth involved with the legal system.

• More specifically, these forensic psychology specialists emphasize the importance of

interventions designed to rehabilitate youth in the juvenile court and juvenile justice
system.

• Child criminal psychology allows forensic psychologists to ensure interventions meet the
needs of their clients and reduce the likelihood of future contact with the juvenile justice
system.

• There are two ways in which forensic psychologists can work with delinquent youths:

• Forensic psychologists can assist judges and attorneys who make important decisions
about minors involved in the juvenile justice system.

• Their forensic evaluations provide caseworkers with important information about the
youth’s emotional, behavioral, and cognitive functioning.

• Forensic psychologists can provide treatment and other interventions to juveniles and their
families.

• The major purpose of such interventions is to bring about an overall improvement in

emotional and behavioral adjustment and functioning while decreasing the likelihood that
youth will re-offend.

Juvenile forensic psychologists have made important contributions to the legal system by allowing
policymakers to better understand the specific treatment needs of youth within the juvenile
justice system.

• Forensic psychologists with specific expertise in the evaluation of children in the legal system
may perform the following types of evaluations:

• Determination of child custody

• Evaluation of parental capacity

• Termination of parental rights

• Working within the juvenile justice system, forensic psychologists assist the courts in
determining a juvenile’s:

• Amenability to treatment

• Eligibility to be tried in adult court

 • Psychiatric diagnosis

• Risk for future dangerousness

forensic psychology in family court

• highlights the changing modern family and child custody issues.

• Two areas that might be considered only collateral to family issues are domestic violence
and suicide.

• Suicide was included in this chapter for several reasons:

• There is an upsurge of teen suicides, which includes children still living with their family of
origin; suicide is a major research area for forensic psychologists;

• and forensic psychologists are in a particularly good position to conduct psychological

autopsies when the circumstances require them.

• Domestic violence was included because even though it is not necessarily limited to family
members, it is a problem that does occur in families.

• Forensic psychologists may be called in to evaluate domestic violence either as a collateral

issue to child custody issues or for direct evaluation and testimony.

Forensic child psychologists frequently utilize the Guidelines, along with their professional
judgment. They are as follows:

• The purpose of the evaluation is to assist the psychologist in determining the best interests
of the child.

• The child’s welfare is paramount.

• The evaluation should focus on the parenting attributes and the child’s psychological
needs.

• Psychologists should strive to gain and maintain specialized competence.

• Psychologists should strive to function as impartial evaluators.

• Psychologists should strive to engage in culturally informed, nondiscriminatory evaluation

practices.

• Psychologists should strive to avoid conflicts of interest and multiple relationships when
conducting evaluations.

• Psychologists should strive to establish the scope of the evaluation in a timely fashion and
should remain consistent with the nature of the referral question.

• Psychologists should strive to obtain the appropriate informed consent.

• Psychologists should strive to employ a number of methods of data gathering.

• Psychologists should strive to interpret assessment data in a manner consistent with the
context of the evaluation.

• Psychologists should strive to complement the evaluation with the appropriate

combination of examinations.
 • Psychologists should strive to base their recommendations upon the best psychological
interests of the child.

• Psychologists should create and maintain professional records that are in line with their
ethical and legal obligations.

Eye-witness testimony

• Eyewitness testimony is a legal term. 

• It refers to an account given by people of an event they have witnessed. 

• For example they may be required to give a description at a trial of a robbery or a road
accident someone has seen. 

• This includes identification of perpetrators, details of the crime scene etc.

• Eyewitness testimony is an important area of research in cognitive psychology and human

memory.

• Juries tend to pay close attention to eyewitness testimony and generally find it a reliable
source of information. 

• However, research into this area has found that eyewitness testimony can be affected by
many psychological factors:

• Anxiety / Stress
Reconstructive Memory
Weapon Focus
Leading Questions

Reconstructive Memory

• Bartlett ’s theory of reconstructive memory is crucial to an understanding of the reliability of

eyewitness testimony as he suggested that recall is subject to personal interpretation
dependent on our learnt or cultural norms and values, and the way we make sense of our
world.

• Many people believe that memory works something like a videotape. 

• Storing information is like recording and remembering is like playing back what was
recorded. 

• With information being retrieved in much the same form as it was encoded.

• However, memory does not work in this way.

•   It is a feature of human memory that we do not store information exactly as it is presented

to us.  Rather, people extract from information the gist, or underlying meaning.

• In other words, people store information in the way that makes the most sense to them. 

• We make sense of information by trying to fit it into schemas, which are a way of organizing
information.
Weapon Focus

• This refers to an eyewitness’s concentration on a weapon to the exclusion of other details of

a crime. 

• In a crime where a weapon is involved, it is not unusual for a witness to be able to describe
the weapon in much more detail than the person holding it.

• Loftus et al. (1987) showed participants a series of slides of a customer in a restaurant.  In

one version the customer was holding a gun, in the other the same customer held a
checkbook. Participants who saw the gun version tended to focus on the gun.  As a result
they were less likely to identify the customer in an identity parade those who had seen the
checkbook version

CWC and their proceedings.

• The Juvenile Justice (Care and Protection of Children) Act, 2015, lays down provisions and
procedures required for the issues related to children who need care and protection.

• This act deals with issues relating to rehabilitation, adoption, re-integration, and
restoration of children in need of care and protection.

Production before the committee

• Section 31 of the Juvenile Justice (Care and Protection of Children) Act, 2015, lays down
rules regarding who can produce the child before a committee :

• it can be any public servant,

• it can be a child welfare officer or a probation officer,

• any police officer or special juvenile police unit or a designated Child Welfare Police Officer
or any officer of District Child Protection Unit or an inspector appointed under any labor law
for the time being in force,

• any social worker or any public-spirited citizen,

• Even the child himself has the capacity under the law to produce himself in front of a
committee.

• The important thing to take account of in this case is that no matter who produces the child
in front of a committee, the action should take place strictly in accordance with the
specified time, which is to present the child within twenty-four hours, and that is after
excluding the time required for traveling.

• By specifically taking strict care of the time frame, the Act tries to make sure that not much
time is wasted and the child does not spend much time being abandoned. And the reason
the above-mentioned list of people includes mostly people in position and people having the
capacity to get the work done is that the safety of the child is a top priority.

In the case of Geetanjali Dogra vs State & Ors, Section 31 of the Juvenile Justice (Care and Protection
of Children) Act, 2015 was discussed in a stretch by the Delhi High Court

Mandatory reporting

• As mentioned in Section 32 (1)

 • Section 33 of the said Act states that, if the information regarding the child is not given to
the responsible authorities within the specified time period by the person who has found
or has taken charge of the child as per the mention in Section 32 of the said Act, that
would constitute an offense according to this act. 

• The penalty or the punishment for the above-mentioned offense is mentioned offense is
given in Section 34 of the Act, Section 34 says that in case a person or individual has been
found guilty of committing the offense mentioned in Section 33, that person would be liable
for imprisonment for up to six months or a fine of ten thousand rupees could be imposed
on that individual, also in some cases, there might be an imposition of both. 

• The provision of penalty is added in law to make people afraid of the consequences and for
them to be more vigilant towards following those rules.

Surrender of children

• Section 35 of the Juvenile Justice (Care and Protection of Children) Act, 2015, talks about the
surrender of children, Section 35 (1) of the Act says that if a parent or a guardian of the child
wishes to surrender the child being it beyond their emotional, physical and social factors can
produce the child in front of a committee.

• As suggested by the framing of this section, it can be extracted that it completely depends
upon the parent or the guardian’s willingness if they want to take their child to a
committee or not.

• Section 35 (2) of the Act talks about executing a surrender deed but only after the required
counseling of the parent or guardian.

• Section 35 (3) of the Act gives the parent or guardian a period of two months to reconsider
their decision and see if they want to detract from it. While this period is given to the
parents to reconsider, the committee decides whether to allow the surrendering of the
child or not. If surrendering the child is allowed, he or she is either sent to a Specialised
Adoption Agency in cases when the child is below six years, in cases above six years the
child is sent to a Children’s Home.

Inquiry

• When the child is produced before a committee as per Section 31 of the act, the committee
might order an inquiry and send the child to a children’s home or any other place the
committee deems fit for the child, the subject of inquiry is mentioned under Section 36 of
the Act.

• It requires that all the children who have surrendered or have appeared before the
committee and that they are under six years of age, should all be placed in a specialized
adoption agency.

• The time granted for social investigation is fifteen days and when the investigation gets
completed within that time, it gives the committee ample amount of time to pass the final
order within the four months of the child being brought before the committee.

• Based on the reports of the inquiry, if the committee is convinced that the child is an orphan
and has no family or support, and is in need of care and protection, the committee may
 send the child to a Specialised Adoption Agency or a foster family till other suitable
options are discovered for the child.

• The child then remains at the sent place till the time prescribed or till she or he turns
eighteen years of age. 

• The committee formed is bound to make a quarterly report on the disposal and pendency
of cases and that report is to be submitted to the District Magistrate and if the committee
is found to be lacking in the fulfillment of its duties the state government shall terminate
that committee and constitute a new one. 

• In case of any delay in the constitution of a new Committee under sub-section (5), the Child
Welfare Committee of a nearby district shall assume responsibility in the intervening
period.

Passing of orders

• Section 101 of the said Act talks about the appeal that can be made, the requirement of this
Section is that any person who is aggrieved or unsatisfied by the order that was passed by
the committee or the board can have the option of appealing to the children’s court within a
time frame of thirty days from the day when the order was passed.

• The appeal to the children’s court, however, is limited and in cases when the aggrieved party
wants to make an appeal against a decision by the committee on Foster Care and
Sponsorship After Care, then the appeal needs to be filed at the District Magistrate. 

• There cannot be an appeal from any order of acquittal made by the Board in respect of a
child alleged to have committed an offense other than the heinous offense by a child who
has completed or is above the age of sixteen years.

• Any other order which was made by the committee after finding out the child is not in need
of any sort of care and protection under the provisions of the act.

• After filing an appeal in the children’s court, if an aggrieved person is still not satisfied with
the order, she or he can file an appeal before the High Court in accordance with the
procedure specified in the Code of Criminal Procedure, 1973

Procedure for declaring the child legally free for adoption

• Before making the child legally free for adoption, the committee shall make all efforts in
tracing the parent or guardian of the child, only in cases when the child is an orphan or
abandoned.

• After all the efforts are made and the committee is still unable to find any trace of the
parent or guardian of the child, the committee can then declare the child legally free for
adoption as per the provisions of Section 38 of the Juvenile Justice (Care and Protection of
Children) Act, 2015.

• The decision of declaring a child as an orphan or abandoned shall be made by at least three
members of the committee. 

• The time period to make this inquiry is two months since the child’s appearance before the
committee.
 • No first information report shall be registered against any biological parent in the process
of inquiry relating to an abandoned or surrendered child under this Act. 

• In case of a child being born to mentally retarded parents or a child who is unwanted to
the victim of sexual assault shall be declared free for adoption by the committee.

• Because if the parents are mentally retarded, they will not be fit to raise a child and in the
latter scenario, the child will in most cases be a burden and a reminder of the heinous act
which was committed on the victim, making it an unfit and non-friendly environment for
the child to grow in.

Psychologist as an expert witness

• At times, a psychologist will be called upon to be an “expert” witness in a case that may
proceed to a court trial.

• Today in the United States, although the figures vary greatly from jurisdiction to jurisdiction,
about 10 percent of cases started in a court actually proceed to a completed trial.

• In any given court case, the psychologist could take on many roles.

• In addition to participation as an expert, a psychologist could be the therapist for a patient

and be asked or required to testify in that capacity.

• As a therapist, the issues of patient privilege and waiver of patient privilege will be
important.

• A psychologist may be asked to serve as a consultant to an attorney or to a testifying

psychologist.

• Consultants have been used to help select jurors or to help prepare witnesses as to dress,
demeanor or phraseology for trial or to review the presentation of psychological theories,
practices and legal defenses.

• Psychologists can also be appointed by a court to make either a diagnosis or a

recommendation at the judge’s request. This column will focus on the role of psychologist
as expert witness.

• An expert should have special knowledge. For psychologists, this is usually evidenced by
academic credentials, training, employment history, publications and licensure. In other
fields, there are other ways to become an expert, e.g. life experience.

• The expectation is that an expert opinion will carry more weight, particularly with a jury.
Often, however, both sides will employ an expert, so a jury may be left trying to decide
which expert is more credible. Or they may discount both experts because they may not
have a basis to believe one expert over another.

• An attorney should not trust the expert to prepare alone. The attorney and expert should
find time to work together to prepare for trial. They shouldn’t surmise that when the
expert testifies, everything will be believed.

• An expert is a teacher in that he/she does have specialized knowledge that a jury needs to
accept and understand.
• This means that the testimony and expertise needs to be explained in terms that are clear
and comprehensible to the jurors.

• The expert could consider using visual aids to instruct the jury in order to give the jury an
imprinted message to remember. Things that are put into writing tend to be considered
more important than words alone.

• An expert should have special knowledge. For psychologists, this is usually evidenced by
academic credentials, training, employment history, publications and licensure. In other
fields, there are other ways to become an expert, e.g. life experience.

• The expectation is that an expert opinion will carry more weight, particularly with a jury.
Often, however, both sides will employ an expert, so a jury may be left trying to decide
which expert is more credible. Or they may discount both experts because they may not
have a basis to believe one expert over another.

• An attorney should not trust the expert to prepare alone. The attorney and expert should
find time to work together to prepare for trial. They shouldn’t surmise that when the
expert testifies, everything will be believed.

• An expert is a teacher in that he/she does have specialized knowledge that a jury needs to
accept and understand.

• This means that the testimony and expertise needs to be explained in terms that are clear
and comprehensible to the jurors.

• The expert could consider using visual aids to instruct the jury in order to give the jury an
imprinted message to remember. Things that are put into writing tend to be considered
more important than words alone.