Current Issues in Forensic Psychology 405Bersoff’s words (1987, p. 57), this opinion “in its most favor-
able light, can only be described as archaic, medieval, and cal-
lous. Research was ignored in favor of history and morality.”
TheLockhart v. McCree(1986) case was especially inter-
esting to many forensic psychologists because it seemed to be
one in which psychological research findings might be taken
very seriously by the U.S. Supreme Court. Two decades
earlier, the Court had upheld the legality of the process of
“death qualification” in capital cases, in which potential ju-
rors who had “scruples” against the death penalty (i.e., anti-
death-penalty attitudes that would affect their ability to reach
a guilty verdict, or would affect their willingness to ever
vote for the death penalty) were automatically excluded
from juries “for cause” (Witherspoon v. Illinois,1968). In
Witherspoon,the U.S. Supreme Court declined to rule that
death-qualified juries were biased against defendants in the
guilt process because the research data to that point, based
upon just three empirical studies, were “tentative and frag-
mentary.” The Court wrote that it might rule differently in the
future if further research clearly demonstrated that death-
qualified juries were not neutral with regard to guilt. In the
two decades after the Witherspoondecision, a number of em-
pirical psychological studies were carried out that appeared
to clearly demonstrate that death-qualified juries were not
neutral but were “conviction prone” (e.g., see Bersoff, 1987;
Thompson 1989). The amicus brief submitted for the APA in
Lockhartsummarized the results of 15 empirical studies that
led to the conclusions that: (a) death-qualified juries are con-
viction prone; (b) dealth-qualified juries are unrepresentative,
thereby threatening the defendant’s right to a jury composed
of a fair cross-section of the community; and (c) death quali-
fication interferes with the proper functioning of the jury.
In a narrow 5– 4 decision, the U.S. Supreme Court upheld
the death qualification process in Lockhart v. McCree(1986).
Donald Bersoff, then general counsel for the APA, wrote that
“it is now clear that even the most unassailable and method-
ologically perfect evidence would not have convinced the
majority.” But, he added,
even though the majority eventually concluded that the social
science evidence was not germane to its decision, it did not ig-
nore it either. It gave it a respectful hearing and, it must be said,
echoed the objective critique APA provided in its amicus brief.
The Court’s emphasis on the admitted lack of perfection in the
studies was of far greater import to it, however, than it was to
APA.Ethical and Professional Issues
The decision whether a psychological organization should
sponsor or create an amicus brief is a thorny one. Who should
make this decision, what criteria should be used, and who
should be asked to write the brief itself? In the late 1980s, the
American Psychology-Law Society (AP-LS) initiated a pro
bono brief project to collaborate with the APA in preparing
briefs for cases involving important psychological issues
(Roesch, Golding, Hans, & Reppucci, 1991). The first such
brief was filed in Maryland v. Craig(1990), a U.S. Supreme
Court case involving the acceptability of special procedures
for the courtroom testimony of child witnesses. The brief,
written by several leading psycholegal scholars and submit-
ted on behalf of the APA, concluded that child victim-
witnesses in sexual abuse trials were especially vulnerable
and that the state “has a compelling interest in protecting a
vulnerable child victim-witness.” The brief suggested that
“multiple sources of information, including expert testimony,
should be sought in making the individualized determination
whether there is a need to limit the defendant’s right to face-
to-face confrontation [by allowing the child to testify by
means of closed-circuit television] when a particular
child victim testifies” (Goodman, Levine, Melton, & Ogden,
1991, p. 29).
This brief stimulated immediate criticism from Underwa-
ger and Wakefield (1992), who argued that the brief’s authors
had misrepresented the value and relevance of much of the
research that was cited. They also argued that the Craig
brief’s conclusions were inconsistent with those of an earlier
APA-sponsored brief in Kentucky v. Stincer(1987). Three
authors of the Craigbrief replied that they had accurately de-
scribed the best scientific evidence that was available. They
wrote: “Psychology bears a social responsibility to provide
the best available evidence on important questions of legal
policy whenever it can do so (APA, Principle F). It should
proceed with caution but it should not be disabled by a
requirement for perfect evidence” (Goodman, Levine, &
Melton, 1992, p. 249). The APA-sponsored brief inLockhart v.
McCreehas also been criticized as possibly overstating the
value of the relevant research (Elliot, 1991a, 1991b), and those
criticisms were answered as well (e.g., Ellsworth, 1991).
It seems likely that debates will continue, both within psy-
chology and from those outside the field, about the relevance
and applicability of evidence based upon psychological
research studies.
Even when the U.S. Supreme Court chooses to pay atten-
tion to data included in a scientific brief, the Court may not
always reach the conclusion that the brief’s writers intended.
A case in point is the issue of jury size. The APA submitted an
amicus brief in Williams v. Florida(1970) presenting re-
search that, the brief’s writers felt, indicated that juries con-
sisting of fewer than 12 members were undesirable because
they were unlikely to maintain a representative cross-section