The Traces of Emotions

This chapter focuses on using suspects’ subtle emotional displays as an indication of their veracity. Münsterberg mentions several physiological indicators of an unconscious emotional reaction, such as changes in pulse, breathing, and galvanic skin response. The sorts of physiological measures described by Münsterberg foreshadow the polygraph, which relies on just such measures. The polygraph has been controversial since its inception and continues to be held in lower esteem by the scientific community than by law enforcement. The present chapter reviews psychological research on the polygraph as a lie detection tool. More specifically, it traces the history and uses of lie detectors, up to the most current methodologies. The chapter reviews the advantages and limitations of the various techniques used by polygraphers to establish the truth or deceptiveness of statements. Finally, the chapter discusses the history of the legal status of the polygraph.

The Detection of Crime

The deception detection method Münsterberg advocates is grounded on principles of association. Although this approach derives partially from a Freudian view of the unconscious, it is not terribly dissimilar to more modern, physiologically based lie detection methods. In recent years, deception detection has become a major focus within psychology and law. Research shows that humans’ ability to detect deception is limited but, summarizing across the body of studies, slightly better than chance. However, most police investigators believe they can detect when suspects are lying. This chapter covers the reliability of modern deception detection techniques with the exception of the polygraph, which is covered in the next chapter.

Overview

Psychology was a relatively young science when Münsterberg published On the Witness Stand, and efforts to apply psychological principles to legal issues were not much older. Law and psychology take very different epistemological approaches, and the threads of the two disciplines have come together and diverged over the years. This chapter includes a brief biography of Münsterberg and a summary of other contemporary work that addressed legal issues. The chapter also introduces important contrasts that have been central to the field since Münsterberg’s day. Of particular note, Münsterberg conducted basic psychological research but is also considered a pioneer in the field of applied psychology, albeit at times an ambivalent one; and current tensions between clinical and experimental psychology date back to his day and the early years of the American Psychological Association.

The Prevention of Crime

In his final chapter, Münsterberg moves from the psychological questions of earlier chapters to the questions of how to prevent crime and whether criminals are “born” or “made.” The psychology of crime, with its implications for prevention, treatment, and punishment, is a large question that continues to be of interest to psychologists, sociologists, criminologists, and policymakers. This chapter focuses on the two main issues that Münsterberg raises: the “nature-versus-nurture” question regarding criminality and the related question of criminal responsibility. Research shows that criminal behavior, especially for crimes involving violence, has significant biological as well as environmental components. Both biological and environmental factors have implications for criminal responsibility—if one commits a crime because his brain or history of conditioning predisposed him to it, should he be held accountable for it? This chapter discusses questions related to criminal responsibility in the context of the relevant legal standards and psychological research.

Hypnosis and Crime

Münsterberg acknowledges the relationship between hypnosis and suggestibility and addresses popular misconceptions about hypnosis, individual differences in hypnotizability, and the relationship between hypnotism and crime. In the contemporary literature, there is little dispute that hypnosis is a useful mnemonic technique in some respects, but that it also has the potential to increase memory errors, primarily due to suggestibility. Consequently, although case law on the admissibility of hypnotically refreshed testimony varies across jurisdictions, courts are generally skeptical when it comes to allowing witnesses to testify about events that they remembered with the aid of hypnosis. Nonetheless, the public has misconceptions about the practice and effectiveness of hypnosis. This chapter briefly summarizes the law on hypnotically refreshed testimony; addresses the pros and cons of using hypnosis as a memory improvement device in forensic contexts; and discusses popular beliefs about hypnosis and such beliefs’ implications for trial outcomes.

Untrue Confessions

Münsterberg frames this chapter by discussing a notorious Chicago case where he received considerable criticism for arguing that the defendant—who was subsequently convicted and executed—had confessed falsely. He presents a number of reasons why suspects might confess to crimes they did not commit, such as instrumental efforts to obtain promised rewards or avoid punishment, or genuinely coming to believe that one did indeed commit the crime. It is yet another example of Münsterberg’s prescience in including this topic, as there is a growing awareness of the false confession phenomenon in both the psychological and legal communities. The last decade or so has seen an explosion of research and policy statements that examine the factors embedded in American criminal procedure, especially interrogation techniques, that may lead innocent people to implicate themselves in crimes they did not commit.

Introduction

In his introductory chapter, Münsterberg summarizes the history of experimental psychology and its theoretical and practical contributions. In his opinion, the field had matured enough for the legal system to sit up and take notice. In a sense, Münsterberg’s entire book is an indictment of the legal profession for this neglect—an indictment that did not go unanswered. The response of John Henry Wigmore, a prominent American legal scholar, was so scathing that it almost single-handedly quelled the incipient law-psychology movement for a number of years. The chapter covers Wigmore’s criticisms in depth. The introductory chapter provides a historical sketch of the field of law-psychology as it has developed over the past 110 years, focusing particularly on the courts’ use (or lack thereof) of psychological research on legal topics.

What Münsterberg Got Right, What He Missed, and What We’re Missing Now

As the preceding chapters show, Münsterberg was incredibly prescient in his view of what psychology could offer the law. Nonetheless, he neglected to include a number of topics that are currently of great concern to forensic psychologists, the criminal justice system, and policymakers. For example, at the time Münsterberg wrote On the Witness Stand, clinical psychology did not exist as a fully formed field; such matters were left largely to medical practitioners. This chapter summarizes what Münsterberg got right and what he missed, and it attempts to foretell where the field of psychology and law is heading by discussing what we are missing now.

Suggestions in Court

Although Münsterberg introduces this chapter with a clinical case study involving posthypnotic suggestion, the focus is on suggestibility and reconstructive memory processes broadly, including the role of individual differences (e.g., age, gender) and alcohol intoxication, which he supports with both experimental evidence and anecdotal observation. The documentation of suggestibility effects is one of the most significant contributions of modern research on eyewitness memory and has yielded important, now widely used, experimental approaches. False memories, in today’s parlance, are essentially the same as what Münsterberg calls pseudo-memories, and they have been demonstrated in a variety of situations and shown to have behavioral consequences. Consistent with Münsterberg’s impression, individual differences in suggestibility are key, especially age differences, with children and elderly adults both being more suggestible than young adults. The present chapter reviews experimental research on suggestibility, with the exception of hypnosis, to be treated in the next chapter.

The Memory of the Witness

Here, Münsterberg emphasizes the importance of doing field studies as opposed to laboratory experiments. Contemporary eyewitness researchers have, until recently, largely ignored Münsterberg’s advice to study naïve witnesses. Rather, they have tended to favor well-controlled laboratory studies. This approach has yielded a wealth of useful data, but it has also been criticized as lacking relevance to real-world phenomena. The apparent “generalizability gap” has also been used by courts to dismiss experimental psychological research, despite little evidence showing that methodological variables alter empirical conclusions. This chapter compares the conclusions from the field studies with the laboratory findings to explore whether verisimilitude is a possible moderator. In addition, Münsterberg’s discussion of different sensory modalities raises the question of “earwitness” versus “eyewitness” memory. This chapter reviews research on earwitness versus eyewitness memory.