TINA BEXSON INTERVIEWS PROFESSOR GISLI GUDJONSSON AND EXAMINES THE EXPANDED ROLE OF FORENSIC PSYCHOLOGISTS DURING CRIMINAL TRIALS IN THE UK

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A Kurdish man is on trial for terrorist activities. His defence, say that since he is clearly mentally impaired, he couldn’t possibly have planned the crimes he is accused of. So, forensic psychologist, Professor Gisli Gudjonsson, is called in to assess the man’s intellectual ability. In an interview room at the Old Bailey he tries to determine how well the defendant can cope with testifying and whether there’s a possibility he is malingering by administering a series of performance and intelligence tests.

“One of these had an inbuilt formula or capacity to monitor whether someone was faking or not, and the results indicated that he was,” Gudjonsson explained. He also noticed certain inconsistencies in the man’s behaviour, such as his sudden ability to speak English after the interpreter left the room, even though he had previously professed to hardly know any.

Gudjonsson, who, in this case, was hired by the prosecution, concluded that the man was indeed “pretending not to be very bright.” He gave this evidence to the court and later the Kurdish man was found guilty.

This is a typical example of Gudjonsson’s work as a forensic psychologist, and assessments of mental ability, or ‘fitness’ cases, be they to stand trial (as was originally the case with child murderer Ian Huntley) or to be police interviewed, can all reveal malingering defendants. It’s a classic attempt of ‘not to face the music’.

“You have to be aware people can lie to you. They can fake a test by exaggerating problems they do have, and by making up problems they’ve never had,” he told me.

Detecting lies is a complicated business. They can be revealed by someone being inconsistent in their answers, by nonverbal behaviour (but the detection rate here is low), and by polygraph tests (which will detect beyond chance).

Gudjonsson elaborated: “A new area of detection, currently being developed, is that of ‘micro expressions’. These are the sudden expressions we emit that indicate certain emotions, such as fear or lying. Psychologists in the States are being trained how to spot them by viewing interview tapes.”

Psychiatrists, as we know, always used to look down on the work of psychologists. There was that sense of ‘we’re doctors, you’re not’, but now the role of the forensic psychologist has dramatically expanded within the legal field, and particularly within the diverse area of assessments.

Traditionally psychiatrists worked exclusively on assessments and they still do where they clearly involve a serious mental illness, but when they relate to issues of how well defendants can function in terms of listening to evidence, testifying, and instructing their lawyers, it is primarily psychologists who have stepped in to take up the work load. This involves looking at how they are functioning emotionally, intellectually, and in term of their concentration and attention.

A high profile case that illustrated just how involved the role of the forensic psychologist can be here, was in the murder of Jill Dando, for which Barry George was given a life sentence in 2001 before finally being acquitted in 2008.

Along with neuropsychiatrist, Professor Michael Kopelman and neuropsychologist, Dr Susan Young, Gudjonsson was hired by the defence to assess George before his trial to see if he was mentally fit to attend it.

After carrying out a detailed psychological evaluation the three expert witnesses concluded that George appeared to have neuropsychological problems including brain damage, epilepsy, and cognitive deficits in terms of not being able to plan or organise himself. So Gudjonsson referred him for a neuropsychological examination which confirmed their suspicions.

Despite there being “a very fine balance” and an acknowledgement that “things could trigger off a reaction that could make him unfit”, George was still found ‘fit’ to plead and attend trial.

Then when the judge allowed the media to publish photographs of him, his mental state did indeed deteriorate and the trail was postponed. Once it resumed the three professionals continued to assess him regularly. “Our job was to ensure his fitness was maintained throughout the trial,” Gudjonsson explains.

Dr Susan Young was even commissioned by the judge to sit in court and observe George’s demeanour and help him to relax and cope with the stress. And Gudjonsson helped George overcome “a psychogenic blindness” with a session of hypnosis after he complained that he couldn’t see whilst he became stressed during legal arguments at the beginning of the trial.

Although Gudjonsson is adamant that psychologists mustn’t get bogged down by questions of guilt or innocence – “We need to remain dispassionate” – he does admit that at the time he found it “difficult to imagine how someone with Barry George’s impaired brain and problems with organisation could have carried out such a well executed murder.”

“I can’t say he didn’t do it, but the picture I had of him, having spent a lot of time with him, didn’t match up with the murder and the crime scene.”

Gudjonsson has provided many types of psychological testimony in over 1,000 cases during the last 26 years, and is still as fascinated by the more cerebral side of crime as he was when he first started. The 69-year-old Icelandic came to London to learn English back in the 1960’s but decided to stay on and qualify as a psychologist. “Forensic Psychology is a hugely challenging area,” he enthused in his clipped hybrid accent.

“You’re dealing with a lot of suffering, and many dilemmas, [including false allegations, recovered memories, and “cell confession” evidence] so I’m forever learning.”

Recovered memories are relentlessly controversial, and Gudjonsson first acted as a consultant for the police, helping them assess cases of people making allegations of abuse based on recovered memories from childhood. He is currently analysing research data on the impact such allegations have on the families of the complainants.

Although he recognises the complexity of the area of recovered memories, and the “importance of approaching each case with an open mind, and to consider the possibility that the memories may be true”, he believes that we need “to be extremely cautious about accepting them without corroboration.”

But it is within the area of false confessions that Gudjonsson first made his name.

This pioneering work along with his subsequent testimony for the landmark case of the Tottenham Three and two other serious miscarriages of justice featuring false confessions (the Guildford Four and Birmingham Six), paved the way for the admissibility of psychological evidence in the Court of Appeal and the House of Lords.

“Before these cases psychological evidence wasn’t so readily accepted in relation to disputed confessions, and although they were a real battle they did eventually help remove much scepticism.”

Gudjonsson’s expert testimony here was based on many years of research reaching back to the 1980s, a time when there was great scepticism among psychologists, psychiatrists and lawyers who didn’t believe that false confessions occurred with sufficient frequency to warrant attention. In collaboration with the psychiatrist, Dr James MacKeith, he finally managed to convince the judiciary that false confessions do occur, be they elicited by the police or offered voluntarily.

This research analysed how people might be induced to make confessions to crimes they had not committed. He found that a range of significant emotional and psychological factors such as how compliant or suggestible a person is under pressure, especially police pressure, are more likely explanations than low IQ, despite the view that you’d have to be stupid to own up to something you didn’t do.

“Most of the vulnerabilities have nothing to do with intelligence,” he explained. “In the cases I looked at, the people were quite ordinary and their intellectual functioning wasn’t of much relevance. Personality characteristics [including personality disorders] are more significant.”

This led him to produce the Gudjonsson Suggestibility Scales (GSS), in short, a series of assessment techniques which identify compliance and suggestibility, and are used across the globe in cases of disputed confession evidence. Gudjonsson has been involved in over 20 cases in which convictions have been overturned on the basis of false confessions.

False confessions are now largely a problem of the past. This is partly due to the better safeguards for suspects in custody such as the routine use of tape recorders, and partly because the police have been forced to become aware of how suggestibility can lead to defendants falsely confessing and have made necessary changes in their interview techniques and in policing generally. And of course, the publicity generated by high profile cases getting quashed due to Gudjonsson’s evidence gave the service a long over due wake up call.

You’d have thought Gudjonsson would be the last person the police would want to approach for advice on confessions. But they regularly refer to his book ‘The Psychology of Interrogations and Confessions’ (which updates all his research and evidence in the area of false confessions), for interviewing techniques as well as asking him for help.

“Now that shows a certain openness and flexibility”, he said. “It’s remarkable they don’t view me as a hostile person.”

Gudjonsson does still testify on the occasional appeal case concerning disputed confession evidence from the past. During one of these appeals the examination of psychological evidence resulted in some quite bizarre happenings in the court room. The case in question took place in Belfast. It featured the third appeal of the UDR soldier Neil Latimer who was convicted of murder along with three others (the so-called UDR 4) in 1986. Gudjonsson testified for the defence arguing that Latimer’s murder confession was unreliable because at the time he made it, he was stressed, psychologically vulnerable, and easily manipulated. The psychologist working for the Crown Prosecution Service, tried to undermine Gudjonsson’s evidence by saying that the test he used to detect Latimer’s vulnerability for giving in to stress and pressure, wasn’t very valid.  As Gudjonsson revealed: “He ridiculed it by saying because he himself had taken the test and got a very high score for stress, it couldn’t possibly be valid.”

However, it all backfired later when the psychologist suddenly said he “felt faint” in the middle of giving evidence. He then collapsed in a heap at the bottom of the witness box, and had to be rushed to casualty where he was diagnosed as suffering from severe stress.

“That was one of the most bizarre things I’ve ever seen in court,” muses Gudjonsson. “It just shows you how stressed people can get, including psychologists acting as expert witnesses!”

He also testifies abroad and likens the situation in some countries – Canada, America, and Scandinavian ones for instance – as like “going back twenty years in terms of naïve attitudes and prejudices.”

Indeed, one of Gudjonsson’s cases was that of a Canadian man imprisoned since 1974 for falsely confessing to the murder of a fireman for reasons, Gudjonsson argues, were connected to his antisocial personality disorder and his “need for notoriety.” Despite “good alibi evidence”, the confession alone was enough to get him convicted at the time of the offence. However, Gudjonsson’s latest report on the man was later reviewed by the Minister of Justice who had the authority of the Criminal Code of Canada to order a re-trial.

 

In another of his murder cases, this time in Norway, the court decided a confession was more powerful than DNA evidence excluding the defendant from the crime.

“The man was eventually acquitted by the jury on appeal, but at the time the general attitude of the judiciary seemed to be that false confessions didn’t happen in Norway. They think it’s only a problem in Britain.”

But he believes attitudes have slowly changed and his evidence was crucial in stopping a death row execution in Texas at a time when George W Bush was Governor and infamous for his hesitancy in halting the final push of the button. Of course, other scientific advances such as DNA evidence and CCTV footage have made confessions and therefore false confessions less of an issue. For example, there have been over 300 DNA exonerations in the USA since the late 1980s. Of these over 20 percent have involved either a false confession or a false plea. However, despite these changes there has been less of an appetite in the US to address the issue of false confessions. In Britain, the situation has been different. Here few DNA exonerations have occurred, but DNA has been found to support Gudjonsson’s evidence. The Cardiff Three was a case in question. The convictions of all three defendants were quashed by the Court of Appeal in 1992 based on oppressive interviewing. By 2003 the real murderer, Jeffrey Gafoor, pleaded guilty to murder and was given a mandatory life sentence after being identified by DNA evidence.

Gudjonsson says he has not been aware of a case where his evidence of unreliability was later contradicted by DNA. However, DNA evidence is only available in a minority of cases and as a result in a majority it still does not overcome the issue of false confessions. The position regarding CCTV footage is less well known. Reliable DNA and CCTV evidence is likely to encourage suspects to give a genuine confession and so can aid towards exonerating the wrongly convicted.

The ability to remain objective in each case is crucial and Gudjonsson ensures he divides his time allocated for court work equally between the defence and the prosecution so he is never “partisan for one side or the other…It’s terribly important to work dispassionately, as well as not taking things personally.”

His techniques though are “always open to abuse. Everyone wants to go on the bandwagon to use them to get their client off. You have to recognise this.”

What about your reports of ‘fitness cases’ and psychological assessments, do the defence ever ask you to manipulate your findings to their advantage?

“I was asked to do this in a murder case about five years ago,” he admitted.

“When I refused, the lawyer said to me ‘I’m not ASKING you to alter it, I’m TELLING you’. And I said: ‘that’s fine, I’ll make a formal complaint against you’. He then rang back and apologised and said, ‘could we not come to an agreement’, but I said ‘no, there’s no compromise’.”

Do these things still go on?

“Yes, though they don’t happen to me very often these days because people know my stance on it. But I do get colleagues who are put under pressure, and I support and advise them.”

A British Psychological Society survey found of the 27% of psychologists who had been pressurised to change reports in favour of the defence, over half then gave in to the pressures and made the changes. Gudjonsson said that this is more likely to happen when psychologists rely on the court referrals for their entire income.

He clearly doesn’t have to do this and says that he only takes on a fraction of the legal cases he gets referred because most of his time is taken up at the Institute of Psychiatry, and at the Maudsley Hospital where he is head of forensic psychology services. Seeing patients under a criminal section on the hospital’s medium secure unit is invaluable.

“You learn a lot from evaluating the mentally abnormal offenders, such as how far they feel remorse, and when they blame their offending on their mental state, their depression, etc, or on the victim. This is because they can’t accept responsibility for what they’ve done.”

However not all psychologists have this opportunity to work clinically or to conduct research. Some aren’t as established or have decided to purely do court work because as Gudjonsson admits, “there’s a lot of it out there. So, they set themselves up as expert witnesses in many different fields, and it’s tempting for them to take on things they aren’t specialised in.”

“But I say to them ‘if you are a real expert you should be concentrating on specific areas rather than being like a GP who takes on everything.”

Shouldn’t psychologists also keep in mind their overall limitations? They are after all, only witnesses.

“Yes”, he concedes.

“Psychologists should never be truth tellers, they know no better than the jury and the judges in terms of deciding on and determining truth.”

(ends)

To find an expert witness, go to the UK Register of Expert Witnesses at:

https://www.jspubs.com/

010011

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