Psychology's voice is heard

Translated literally, the Latin phrase amicus curiae means “friend of the court.” And that’s just what APA aims to be.

Written by individuals or organizations that aren’t a party to a particular piece of litigation, amicus briefs are “pleadings” designed to advise the court about information that’s pertinent to the decision the court will make but that the parties don’t have the expertise or interest to address. Over the last five decades, APA has submitted dozens of amicus briefs to the U.S. Supreme Court, state supreme courts and other parts of the judicial system. In May, APA saw its briefs have an impact on cases involving life imprisonment for juvenile offenders, the confidentiality of psychotherapy records and imprisonment based on false confessions.

“We look for cases where there is very solid, relevant research coupled with activity in the courts,” says Nathalie Gilfoyle, JD, APA’s general counsel. “We also look for cases that have the potential to have widespread significance: The most effective briefs for us are often ones where research presented in our first brief will be foundational for other amicus briefs in the future.”

The goal? To influence public policy by educating courts, the media and the public at large about what the psychological research has to say about issues that can be matters of life or death.

APA’s latest briefs

Courts are increasingly relying on social science research as they make their decisions, say Gilfoyle and other experts. She points to three cases in the month of May alone where APA’s amicus briefs mattered:

• Graham v. Florida. In this case, the U.S. Supreme Court ruled that individuals who were under age 18 when they committed crimes other than homicide cannot be punished with life in prison without parole. Pointing to developments in psychological science, the court asserted that juveniles are less culpable than adults because of their immaturity, vulnerability to external influences and unformed characters. The court also found that the justifications for giving life sentences to juveniles are weaker, because of young people’s better prospects for rehabilitation, inability to foresee consequences and other factors. The majority opinion cited an amicus brief submitted by APA, which was signed on to by the American Psychiatric Association, National Association of Social Workers and Mental Health America. The Graham ruling also drew on the court’s decision in a 2005 case — Roper v. Simmons — that outlawed the death penalty for juvenile offenders. In that case, too, APA filed an amicus brief presenting research that the court cited in the majority opinion.
  
  “The actual number of people who are going to be affected by this ruling is probably pretty small, since most individuals who are serving life sentences for crimes they committed as juveniles are there for homicide,” says Temple University psychology professor Laurence Steinberg, PhD, a past president of APA’s Div. 7 (Developmental) who joined other psychologists in helping APA prepare the Graham brief.
  
  Symbolically, however, it’s very important. “This is another indication of the increasing acceptance of the argument that we as developmental psychologists have been making, which is that juveniles are different from adults in some very fundamental ways and that those differences warrant their being treated differently under criminal law,” says Steinberg. Reaffirming that idea also has the potential to influence other laws that have nothing to do with this particular case, he adds, citing as examples how harsh punishments for juveniles should be and whether juveniles should be held in the adult system.

• Marquez v. Estate of Garcia. In this case, APA and the California Psychological Association (CPA) came together to urge the California Court of Appeals to reverse a lower court decision that would have allowed for the disclosure of intake records from the Betty Ford Center and the deposition of the psychologist who handled the case. Their brief explained confidentiality’s essential role in psychotherapy and the dire consequences of weakening psychotherapist-patient privilege. Citing that brief, the court acknowledged that psychotherapy depends on patients’ willingness to share the most intimate details of their lives and reversed the lower court decision.
  
  According to the defendant’s attorneys, having the authority of APA and CPA weigh in played a critical role in the court’s decision, says Charles A. Faltz, PhD, CPA’s director of professional affairs. APA and CPA also submitted an amicus brief in a similar case a few years earlier, with the same successful outcome. In both cases, the original judges had argued that psychotherapy records must be produced if they are relevant to a lawsuit.
  
  Those decisions have huge implications, emphasizes Faltz. “If in fact the standard was that all a court had to find was that the information exchanged in psychotherapy was relevant, then there would be no effective privilege whatsoever and the very basis required for effective psychotherapy would be gone,” he says. And the repercussions would be significant, Faltz adds. “When there’s a decision like that in a major state like California, it has important national implications,” he says.

• Warney v. New York. This case involves Douglas Warney, a man with mental retardation and AIDS-related dementia who was convicted of murder based solely on a false confession. After serving a long prison term, he was exonerated by DNA testing. APA submitted an amicus brief supporting Warney’s petition for review of a lower court’s finding that he is ineligible for reparations because he caused his conviction by falsely confessing. APA urged the court to consider the body of research that has developed since the state statute at issue was enacted before confirming the statute’s scope. The brief drew on a 2009 white paper published by APA’s Div. 41 (American Psychology-Law Society) in Law and Human Behavior (University of San Francisco Law Research Paper No. 2010-13) that summarized the research on the situational and dispositional causes of false confessions. The New York Court of Appeals, which declines most of the cases it is asked to review, accepted this one and asked for a full briefing.
  
  APA’s amicus brief was instrumental in prompting the court to accept Warney’s appeal, says Warney’s counsel, Debi Cornwall, JD, a partner at the New York City law firm Neufeld Scheck & Brustin, LLP.
  
  “In fact, your community has greatly influenced our thinking as lawyers about the issue of false confessions,” says Cornwall. “Without the critical research of APA members, we wouldn’t be making these arguments and courts wouldn’t be taking them seriously.”
  
  Saul Kassin, PhD, a past president of Div. 41 and psychology professor at John Jay College of Criminal Justice, agrees.
  
  “False confessions are difficult for judges, juries and others to discern because they typically contain vivid details,” he says. There’s research on that as well as the risk factors that render some people vulnerable to manipulation and thus false confessions, says Kassin, who helped APA with the brief for Warney and a similar, as-yet-undecided case, called Wright v. Pennsylvania, in the Supreme Court of Pennsylvania. “All the science really needed to say and all we really needed to inform the courts of is that it’s possible for someone who’s subjected to a lawful interrogation to still provide a false confession,” he says.

These examples are just the most recent ones. Gilfoyle also points to the role APA’s amicus brief played in the Supreme Court of California’s 2008 decision allowing same-sex marriage. That, she says, was another case in which social science research was used within the framework of the legal analysis — equal protection, in that case — to affect an outcome. (The decision was later overturned by a voter referendum.)

“Our goal is not to ‘win’ in a traditional sense,” says Gilfoyle, explaining that APA uses an objective, science-based tone in its briefs and almost never comments on the merits of a specific case. “We are trying to educate decision-makers about what the research has to say about the tough public policy issues they must resolve.”

That approach seems to be paying off. “Certainly the Supreme Court seems to be listening to the social science research,” Gilfoyle says. “When APA weighs in on something, we believe the courts are listening.”

Rebecca A. Clay is a writer in Washington, D.C.