Forensic psychology in Canada a century after Münsterberg

Acknowledgement: Based on an invited address delivered at the 2013 Convention of the Canadian Psychological Association in Quebec City, Quebec.

The genesis of forensic psychology is usually traced to Hugo Münsterberg whose eclectic interests in the second stage of his career led him to the forefront of many types of applied psychology (Hale, 1980; Münsterberg, 1922). Benjamin (2006, p. 421) notes that “Münsterberg was a tireless spokesperson for the cause of applied psychology, telling anyone who would listen about the great potential in putting to use the mental facts that psychology had discovered” yet he initially was an opponent to applied psychology—endorsing the views of his teacher, Wundt. Münsterberg is responsible for not only planting the seeds of forensic psychology, but also contributed to the beginnings of business psychology, clinical psychology, educational psychology, industrial psychology, and the psychology of cinema. Although he was the most widely recognised psychologist in the world in the first two decades of the 20th century—reaching an audience of millions with his articles in the popular press—his significant contributions did not receive much attention after his sudden death at age 53 from a cerebral aneurysm as he took to the lectern at Radcliffe College on the morning of Saturday, December 16, 1916. Looking back almost a century after his death, it is easier to explain the posthumous neglect of his ideas due to his strong German partisanship leading up to the entry of the U.S. involvement in World War I (Moskowitz, 1977). What is harder to understand are several myths that have developed in mainstream forensic psychology textbooks about Münsterberg, suggesting that psychologists tend not to be the best historians—even of their own history. As just one example, Goldstein (2003), although acknowledging that Münsterberg is generally credited with founding the field of forensic psychology, undercuts his importance by indicating that Münsterberg wrote relying on his own experience as an expert witness and although Münsterberg considered many legally relevant topics in his best-selling 269 page book On the Witness Stand (Münsterberg, 1908), it lacked any references. First, Münsterberg never gave expert testimony—he would have been the first psychologist in America to do so if he had. He once gave evidence in court as a fact witness when his own home in Cambridge was burglarized while he was at his summer home. His ground breaking and best-selling book on forensic psychology contained no references because it was a collection of articles previously published in popular media such as Atlantic Monthly, Times, Cosmopolitan, and McClure’s magazines. How many references appear at the end of a Cosmo article? He did discuss research findings in his popular press articles blending them with his own keen skills of observation.

Münsterberg’s entry into the amalgam of the law and psychology came through two murder trials in 1906 and 1907. The first was in Chicago (Ivens) where he was asked for his private written opinion about the evidence (an alleged false confession under hypnosis) by a local psychiatrist (Christison) who was championing the cause of the accused. The correspondence was released to the press by Christison and was met with hostile reactions from the public (Winter, 2012). The second trial was in Idaho (Orchard) where he travelled, as the guest of the authorities there, in order to examine the accused to test the veracity regarding his evidence. The information that Münsterberg gathered from the accused was to be kept from the jury as it was for scientific purposes only. Like his entry into other applied venues, Münsterberg often reacted to requests to be involved in applied areas rather than soliciting participation.

The most glaring aspect of misinterpreting this early forensic psychology history has been a widespread and persistent myth of the Psychology versus Law smackdown represented respectively by Münsterberg and John Henry Wigmore, then dean of law at Northwestern University. Wigmore had read with interest Münsterberg’s articles on psychology in law, which had contained some pointed words for judges, and lawyers who did not heed the necessity of understanding relevant psychological issues, such as the vulnerability of the witness’s memories. Wigmore wrote to Münsterberg telling him that he was planning to “poke some fun” at his criticism of lawyers in response to “the fun you have had in publicly putting our profession in the pillory” (Wigmore, 1908). Wigmore had previously invited Münsterberg to submit an article to his new little journal the Illinois Law Review. The journal was intended to be a local state journal rather than a national law review and a place for Wigmore’s students to publish their academic ideas. In the third year of its publication, Wigmore wrote his now famous mock trial of Münsterberg (Wigmore, 1909) in which the psychology professor was found guilty of promoting a double standard in not being able to backup his assertions about psychology’s contribution to the law. In later years, this article was interpreted to be “a devastating law review article” (Bartol & Bartol, 1999) and Saks (1989, p. 1) noted of the Münsterberg and Wigmore exchange—“each thought the other was deranged, and between them they produced what probably is the first and most vicious published debate that law and psychology has ever seen.” This myth strays far from reality. In fact, few people (lawyers or psychologists) knew about Wigmore’s law article at the time. Wigmore was also not the first legal voice to critique Münsterberg. In October of 1907 another legal scholar, Moore (Moore, 1907), laid out his criticisms in an inelegantly sarcastic manner in Law Notes and Münsterberg (1907) handily volleyed back in the following month’s issue. The editor of the Green Bag, another law magazine, acknowledged Münsterberg’s “very effective replies” to Moore’s criticisms (Wrightington, 1907, p. 721) some of which Wigmore was to repeat 2 years later. Münsterberg had, in other words, already replied to legal critics when the Wigmore satire appeared. There was no confrontation, debate, showdown, or anything of the like between Münsterberg and Wigmore. This by itself is interesting because Münsterberg was noted to have a thin skin and his habit was to immediately pen a rejoinder to any written reproach. Münsterberg by 1909 had already turned his mind to other applications of psychology although he maintained his interest in psychology and law. Applied psychology was in its infancy and there were simply few psychologists with the ability to carry through on the innovative ideas posed by Münsterberg. Most psychologists then were still ensconced in university labouratories and educational settings. The exchange of challenges between psychology and law is a recurrent debate that tends to cycle over some similar themes—recall Ziskin and later critics (see Melton, Petrila, Poythress, & Slobogin, 2007, p. 726 for a review). The theme that applied psychology promises more than it delivers resonates through the last century both in professional and public press. An analysis of the New York Times commentaries on psychology between 1904 and 1947 shows this to be especially so in the period from the 1920s to the 1940s (Dennis, 2002). Petrila (2009) also argues that modern forensic psychology has more scientific knowledge to inform clinical testimony than ever before, but less than we think we have. We therefore must enter prudently into law forums rejecting overstated claims and preventing good science being converted into bad clinical practice. A touch of Wigmore’s advice is still relevant.

Münsterberg’s ideas for psychology applied to law may have caught the ire of a few legal scholars but they were not rejected by the bulk of the practicing legal community, quite the reverse. He received hundreds of inquiries from lawyers thanking him for his popular writings and these were likely referred to and used in courtrooms (Hale, 1980). There was never any direct confrontation between Münsterberg and Wigmore. Münsterberg was writing in the popular press reaching millions of readers yet Wigmore’s local law journal initially reached only several hundred readers and a completely different audience and appeared several years after the public had digested Münsterberg’s views. Wigmore’s article was uncharacteristically acerbic and this apparently rare attempt at humour, he tried to correct for the rest of his life (Doyle, 2012). Indeed, Wigmore, as Doyle points out, wanted to show the potential for the relationship between law and psychology arguing that although he felt it was too soon for broad applications, the two disciplines working together could forge useful ties. Wigmore and Münsterberg, two “Harvard men,” kept a correspondence up to the year of Münsterberg’s death in 1916 with Wigmore seeking advice from Münsterberg on some of his own writings and continuing a cordial dialogue about the potential for psychology in law (Winter, 2012). Wigmore even suggested other areas of law that Münsterberg had not addressed which might be future areas of psychological research. In addition to urging more psychological research on which to hang legal applications, Wigmore also suggested that Münsterberg (and other psychologists) present their findings directly to lawyers rather than to the general public. The idea that there was any form of generalised hostilities between psychology and law caused by their writings and that Münsterberg’s efforts “delayed the growth of the field for approximately 20 years” (Goldstein, 2003) lacks any support. It took years before the Wigmore article circulated more widely and, even then, the study of legal psychology continued (some promoted by Wigmore). Münsterberg’s former students and junior colleagues (e.g., Marston, Yerkes, Burtt) all continued in this area (Golan, 2004). As Morse noted in 1913, “All law is psychological. It is human product, drawn up to direct and control human conduct. The trail of human is over every inch of it” (Morse, 1913, p. 796). Forensic psychology, like other areas of applied psychology, progressed slowly after Münsterberg until the exponential growth of psychology graduates in the 1970s allowing sufficient numbers to coalesce into the specialty we recognise today.

Before I leave Münsterberg to discuss modern concerns in forensic psychology, I must mention that he is known to have travelled to Canada several times. He gave an invited address to the prestigious Canadian Club in Toronto and was the sole psychologist invited by the Canadian Government to join a meeting of the British Association for Advancement of Science—a prominent group of mostly British scientists—in Winnipeg in 1909 and then travelled with this group by train to Vancouver and back. He wrote home to his family in Cambridge about the splendours of the Canadian Rockies.

In 2013, a report was issued by the Centre for Forensic Science & Medicine at the University of Toronto summarizing a multidisciplinary discussion held the year prior (Pollanen, Bowes, VanLaerhoven, & Wallace, 2013). The organizers of this first such interaction engaged leaders of nine “main disciplines” within the forensic sciences (pathology, anthropology, odontology, nursing, entomology, physical evidence, toxicology, biology, and psychiatry) although they understood that “there are others.” The first thing that becomes obvious in reviewing the summaries of our colleagues is that forensic psychology appears more advanced or developed than these other disciplines in our scientific scope. Canadian research in forensic psychology has achieved international recognition for substantial accumulated knowledge shared in peer-reviewed journals. In training and education, many of these disciplines have no specialized graduate programmes in Canadian universities or have some recent inroads although we have had advanced training at several universities across the country for decades. The lead editor of this report—a pathologist—noted that “members of the forensic science community are themselves demanding better scientific practices and an increased emphasis on building academic foundations for forensic work” (p. 3)—echoes of the concern about psychology by Wigmore in 1909. It is interesting to see other disciplines reach the conclusion that forensic practitioners should be engaged in multidisciplinary cross-training (including police, lawyers, and judges), that training should occur in best practices, in writing reports, giving expert witness testimony, and that we should educate the judiciary in our disciplines including basic training in scientific literacy. Again, the resonance of John Wigmore is heard. I will turn to my own experience to review forensic psychology in much the same way as each of these represented disciplines has—in our science, education and practice.

In contrast to most other disciplines with a forensic focus, forensic psychology in Canada has an enviable research record. The enterprise of risk evaluation in forensic psychology has received key Canadian contributions. Related areas such as understanding and treatment of sex offenders are another central theme where Canadian research has been prominent. As well, memory research applied to such issues as eyewitness behaviour has had strong Canadian contributions. As a sample of the Canadian affiliated psychologists (including Canadians who now occupy positions in other countries or psychologists who have come from elsewhere to work here) who have added to the research base of forensic psychology, I offer a list of sustained writers, keeping in mind that this is not exhaustive and many of these individuals also conducted their work with colleagues in other disciplines such as psychiatry, law, and sociology.

Although the scope of the investigations published by this diverse set of scientists is broad, it can be improved as most of the work relates to criminal justice and only a few of our colleagues have examined, in any depth, family law issues, civil law issues such as personal injury litigation, or employment law. This substantial research talent could readily spread to a more broad application in these areas of law.

In reviewing the undergraduate calendars of psychology departments across Canada, the majority have some regular courses devoted to forensic psychology titled broadly as “Psychology and Law,” or “Forensic Psychology” or more narrowly as “Psychology of Criminal Behaviour.” The departments that do not have such offerings tend to be smaller institutions or oddly, large institutions with more traditional nonapplied curriculums. Of course, not every academic Department of Psychology has a uniform faculty and some departments simply do not have a member with sufficient knowledge in forensic psychology to teach the subject. Athabasca University (AU), which is Canada’s Open University, and original distance university, has offered a course in Forensic Psychology for over 10 years and over a thousand students have successfully completed this course. In looking over the participants in our course from the last decade many students were from other universities that did not offer a similar course or a suitable course was not offered in line with their necessary timeframe. Additional specialized forensic courses at AU in areas such as sex crimes and risk evaluation are offered through the criminal justice department. If numbers of undergraduate students taking forensic psychology are similar from the majority of the 98 universities listed with the Association of Universities and Colleges of Canada (AUCC), we now have a large body of undergraduates who have received and are receiving formal education in forensic psychology. In supporting these increasing undergraduate offerings across the country, we now have several excellent Canadian texts in forensic psychology to choose from (e.g., Porter & Wrightsman, 2013; Pozzulo, Bennell, & Forth, 2012; Roesch, Zapf, Hart, & Connolly, 2013). Although forensic psychology has internationally generalizable themes, it also has distinctly national applications which vary across countries, and requires specific reference to the laws of that country in instruction. The conclusion is that any eligible student in Canada can achieve at least an undergraduate university exposure to forensic psychology and a large number have availed themselves of this opportunity.

Graduate training in forensic psychology depends strongly on available faculty to teach the core subjects. Flux of the composition of graduate level faculty shows that the centres of specific expertise at our universities will naturally rise and fall. Helmus, Babchishin, Camilleri, and Olver (2011) have recently pointed to the continuing shortage of graduate education in forensic psychology in Canada despite strong student interest and a high demand for professionals. As this survey noted, most training programmes in applied forensic psychology are now embedded in general clinical programmes rather than as standalone programmes. There are also graduate programmes covering areas of experimental psychology applied to the law, focusing on the production of scientific findings. The links to applied settings from universities is also variable—those universities with correctional institutions nearby have used such in cooperation with Correctional Service Canada or other authorities to tap into as a subject base for their investigations. Much of the applied nature of clinical forensic training comes from the experience in internship settings across the country, which are largely independent from academic venues. Again, these centres do not have any uniform standards and are dependent upon the ideas and skills of supervisory staff at such institutions. Unlike undergraduate education in forensic psychology, there is no Canadian comprehensive graduate textbook equivalent to Melton, Petrila, Poythress, and Slobogin (2007), which was written for a U.S. audience, to guide instruction for forensic psychologists in training who will eventually offer assessment reports for courts. Will a “write it and they will come” proposal entice anyone to put the hard labour into such a product?

The importance of specific education in forensic psychology is underscored by the fundamental differences between traditional clinical and forensic attitudes and activities. Graduate students in clinical psychology who have barely taken on the mantle of traditional helping clinicians are then required to discard this for a new set of guiding forensic principles such as requiring higher levels of objectivity, scrutiny for validity of findings, and emotional distance from the examinee. Yet, without this training and understanding of the differences between traditional clinical work and forensic applications, the young practitioner may drift into doing some forensic work without the proper framework for doing so. The static nature of graduate forensic training in Canada reported by Helmus et al. (2011) shows that the repeated calls for increasing this type of training (Ogloff, 2004) have not been acted upon by our universities.

As argued by Wigmore, and reiterated by the recent report on Forensic Science in Canada, education of our lead customers is an ongoing and vital issue. Although our appearances in court fulfill an educative role, it is often too specific and case defined to have a generalised influence. It has been my experience that judges are not naïve audiences in the area of the behavioural sciences and many guiding judgments from our Supreme Court show sophisticated understanding of our science. Still, we cannot expect lawyers and judges to understand the range of issues that forensic psychology can address and communicating with them in their media should be a regular activity. In 1997, I began such a venture with the American Bar Association (Dalby, 1997, 1998, 1999) first with a general book introducing psychology and then several articles laying out specific ways that psychology can assist legal cases. Once, when I was giving a talk to a university Department of Psychology, a faculty member argued that these types of nonacademic publications would not be weighted heavily by their department chair at year-end review and therefore not worth the effort by academics. I reminded the audience of Münsterberg’s model. Even when he was writing (he usually dictated to his diligent secretary) an article for a popular magazine such as Ladies Home Journal or the Saturday Evening Post, Münsterberg had not abandoned his fundamental drive for experimental science and published in the main psychology journals of the time such as Psychological Review and Journal of Abnormal Psychology and also supervised experimental studies by students in the Harvard labouratory. He gave addresses to academic audiences at dozens of universities and professional conferences as well as many lectures to community organisations or clubs. The two communications styles and audiences were not incompatible and Münsterberg was very aware that his recognition did not come from his published research in academic journals but through his widely dispersed connections with the general public. Even the administrators of Harvard grudgingly acknowledged the acclaim that Münsterberg’s public profile brought the institution from his popular articles.

A few of the psychologists listed in Table 1 understand the importance of reaching out to their consumers by writing in nonacademic publications such as police magazines. However, it would be an easy task for more of them to choose an area they know well and write a short piece for the end customers of their work or ideas. The “customers” are many. Many legal magazines and newsletters exist across Canada and other groups such as insurance organisations, employers/unions, and disability assessment brokers would be eager to learn about forensic psychology in their own less formal media. This outreach also should include ventures such as lectures at law schools and speaking at nonpsychology professional conferences.

If Münsterberg were living today, he would not have neglected other mass communication vehicles such as TV and movies to spread his thoughts about the potential applications of forensic psychology. For movies, it is interesting that his last major contribution (Münsterberg, 1916) was the first psychological exploration of the “moving pictures”—a work still studied today in that field.

The practice of forensic psychology has no legal definition or identification in Canada. That means that there is no process of certifying to the public or other consumers that a person has any specialized training or experience in the field. Licencing of psychologists remains generic across the provinces although identified areas of specialization may be offered when applying for registration by the provincial psychology college. The onus is on the psychologist to practice within their competence limits. Few forensic psychologists in Canada have bothered to take independent specialty examinations such as the Forensic Diplomate offered by the American Board of Professional Psychology as no Canadian law focus is available in that examination and there are no incentives to obtain such a credential in Canada. Likewise, the Specialty Guidelines for Forensic Psychology, crafted by a committee of Division 41 of the American Psychological Association (2013) are for the most part balanced but are not authoritative or universally agreed upon by even experienced forensic practitioners. These guidelines remain useful for those entering the specialty to review as an illustration of some differences in approach that is required in forensic work.

The recognition that the demand for forensic psychologists outstrips the training of new practitioners in Canada (and elsewhere) has been noted repeatedly (e.g., Porter, 2004). The Federation of Law Societies of Canada (2010) report 83,675 practicing members and approximately 3,000 graduates emerge from our 16 law schools every year. The mismatch with so few new practitioners in forensic psychology is obvious and the gap will continue to grow, keeping in mind that lawyers are only one source of referrals for forensic psychologists. The angst heard from newly minted psychologists about finding a well-paid position to ease the burden of their student loans would be dampened if we siphoned more of our generically trained counselors or clinicians toward a more promising future working in forensic psychology. A recent survey in Alberta confirmed that the hourly billing rate for forensic psychologists in independent practice is typically double that of private psychologists engaged in general therapy (Mastikhina, Prentice, & Dobson, 2013).

There is a wide misconception that forensic psychology involves just work in the criminal justice system. Although this was the first area that large numbers of psychologists began to employ their skills in, much more opportunity and need exists in the civil justice system. Even in the criminal justice system new roles are possible—such as investigative tasks (Burton & Dalby, 2012; Dalby & Nesca, 2008b). Once trained in general forensic principles and practices, psychologists originally trained in the criminal justice system report an easy fit with other legal forums and a “mixed” forensic practice is common. Other applied fields in psychology, such as neuropsychology, see a very large proportion of work allocated toward forensic evaluations in personal injury cases or disability questions and indeed lawyers are the leading referral source for neuropsychologists in independent practice (Sweet, Moberg, & Suchy, 2000). However, most of these practitioners have little training in relevant tort law or specific essential skills such as giving courtroom evidence (Dalby, 2007) or the ethical considerations in legal work (Morgan & Bush, 2005). Vocational psychologists are in high demand in many personal injury or disability cases to provide detailed guidance on what options are available for injured persons. Other areas needing skilled forensic practitioners are employment law where addressing the nexus of mental state/disability and employment responsibilities are often required. The question of civil competencies will continue to grow as the population ages and it is to psychologists that the bulk of objective legal determinations will turn (Moye, Marson, & Edelstein, 2013). Immigration law also seeks to review the mental fitness of applicants for citizenship or residence, again using accepted scientific metrics. Experts in child development have had a welcome place in many family law cases for decades. As pointed out (Nesca & Dalby, 2013), the crux of all areas of forensic psychology is addressing legal questions. The parameters of law are an area outside of nonforensic training and knowing the essential elements of criminal or civil law is required of those practicing any component of forensic psychology. This does not mean a law degree is necessary but that the relevant federal or provincial law needs to be understood as it applies to questions asked of the psychologist. Even the tasks a psychologist can take on can be different in forensic work. Some traditionally trained clinical psychologists fail to see how a forensic psychologist can craft opinions absent contact with a patient, yet this is a common forensic commission (Dalby & Nesca, 2008a). We are collectively well received and respected by our various customers but we are not growing or progressing to meet the demands of the marketplace with psychologists trained in specific forensic skills.

How then do we solve the supply/demand problem in forensic psychology or ensure that psychological practitioners engaged in legal work have the requisite skills? It has been seen as difficult for university graduate programmes to develop specialized graduate tracks in forensic psychology and instead some offer various amounts of forensic “content,” even self-directed. It should be a minimum requirement of applied graduate training that a “forensic module” be taken, even by those not intending a career touching on legal work. This module should encompass the full range of potential applications of psychology in law as well as the fundamental differences between traditional clinical/counseling roles and that of the forensic psychology examiner or therapist.

Because it is improbable that a sea change in the forensic offerings by university graduate programmes will take place given limitations on budgets, how can even the current population of applied psychologists acquire/maintain the required level of forensic competence across Canada? A workshop at the annual meeting of a provincial psychology association or CPA may help but these lack intensity or comprehensive scope and usually are offered only every couple of years. An idea originating with some Saskatchewan faculty was that a week-long annual “school of forensic psychology” be offered during summers at one of the semivacant university campuses. Somewhat in line with the Cape Code Summer Symposia, which has been offered for the past 30 years, this would draw together leading experts in forensic psychology to provide an intensive review of the latest law and practice skills for psychologists and allied professionals. A grand scheme, to be sure, but one worth contemplating.

A hundred years have passed since Hugo Münsterberg charted the choppy waters of the law in an attempt to outline the benefits that psychology could bring to this realm. He was not turned back in his quest by critics but some reasonable demands for empirical accountability and open dialogue between law and psychology were received. Since then, Canadian psychologists have contributed a substantial body of empirical findings relating psychology to legal issues. Although we can celebrate our achievements in research and undergraduate education, we are continuing to fall behind in the preparation of professionals who are capable of addressing the legal questions that fall to us. Creative redress of these shortcomings is the responsibility of both those academics who are charged with the training of new psychologists and senior practitioners who could provide the experience that is lacking in universities. Both must also communicate the breadth and opportunities that exist under the “forensic psychology” rubric.

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Submitted: September 3, 2013 Revised: November 15, 2013 Accepted: November 20, 2013