The past 20 years have seen a transformation in the provision of probation and parole services as science has been applied to our understanding of a range of criminological factors that influence behavior and increase a person’s risk of being involved in criminal behavior or of recidivating after incarceration. Many risk factors have been determined and studied, with some viewed as static and unable to be changed (e.g., early traumatic life experiences, past criminal involvement) and others viewed as dynamic or subject to change (e.g., job readiness, criminal thinking, victim access). As a former Assistant Deputy Chief U.S. Probation Officer for the District of Massachusetts, my goal was always to strengthen prosocial behaviors and skills to lower the risk of incarceration or postincarceration recidivism. The job we do, and the decisions we make, are strengthened by science and research. For instance, scientifically validated risk scales and evidence-based interventions, as discussed by Serin et al.

This chapter reviews decision-making in insanity defense trials. The chapter begins with an overview of the variety of legal definitions of insanity in the United States, discussing how these rules provide parameters and shape (or fail to shape) insanity decisions. Various factors related to decision-making in insanity defense cases are discussed, including attitudes toward the insanity defense itself (and how these reflect myths about the insanity defense and its implications), prototypes of insanity, and individual differences of both jurors and defendants. The chapter examines misconceptions of mental disorder and how these might relate to decision-making in these cases and considers the role of decision-makers’ perceptions of punishment in this context. The chapter also reflects on the role of intersecting identities in insanity judgments, provides an overview and synthesis of the current body of research on legal decision-making in insanity cases, discusses limitations to the current literature, provides future directions, and considers legal and policy implications.

This chapter discusses the legal and extralegal factors that affect a parole board member’s decision regarding whether or not to release a prisoner on parole. While some states have mandatory parole, others have discretionary parole, which is the most widely cited process for parole release in the US currently. Discretionary parole allows a board to decide if the prisoner should be released based on statutory factors, which are examined in this chapter. However, they might also be influenced by emotions, biases, public/political pressure, and other extralegal factors. The chapter provides an overview of what these extralegal factors are and how they might affect decisions. The chapter also provides an examination of both parole board member and inmate characteristics that influence release decisions, with a focus on if and how they affect risk assessments. The chapter synthesizes this body of research and offers future directions and implications for the legal field. Future research and/or policy implications are discussed.

At the core of any legal decision is an assumption that the decision will be “fair,” yet this is an elusive term. A close study of cases involving criminal defendants with mental disabilities shows that many (perhaps most) of the decisions involving this cohort are not “fair” in the contexts of due process and justice. If legal decisions reflect principles such as procedural justice, restorative justice, and therapeutic jurisprudence, the chances of such fairness will be significantly enhanced. This chapter explains why this goal of fairness, in the context of these cases, can never be met absent a consideration of the virulence of sanism and pretextuality, along with the misuse of heuristics and false “ordinary common sense.” These factors enable much of society to ignore gray areas of human behavior, and predispose fact-finders to endorse beliefs in accord with their prior experiences.

Despite increasing evidence regarding the efficacy of risk assessment and intervention in community supervision, there continues to be relatively weak adherence to such evidence in its application to decision-making. Regarding assessment, such a lack of fidelity purportedly leads to higher rates of overrides, degraded accuracy, and inefficiency in resource allocation. Regarding intervention, failure to implement evidence-based practice and recognize the role of probation officers as agents of change further diminishes supervision effectiveness. With probation populations at an all-time high and a burgeoning violation rate, this chapter summarizes the emerging probation research to situate the need for clarity of purpose and improved decision-making to maintain public confidence in probation. The chapter presents a decision framework utilizing empirically informed domains as a logic model to ensure probation officer decisions are fair, transparent, and defensible. This framework incorporates both static and dynamic information to ensure decisions are accurate and contextual.

Psychologists are often called in personal injury and workplace discrimination cases to help determine the extent of psychological damages (e.g., psychological trauma). We apply a rigorous five-stage temporal model to guide forensic evaluators in providing a robust, evidence-based psychological perspective on the nature and extent of the injury, how that injury arose, and the effects of that injury in the future. Functionality of the plaintiff is assessed in daily activities, in the workplace, in intimate relationships, in social and recreational activities, and in relation to their family. Systematic analysis of the functioning of the plaintiff in these areas from the period before the legally relevant event until litigation concludes allows decisions to be made about the nature and source of any impairments. This method includes consideration of alternative hypotheses, integral to decisions about causation. Psychologists’ decisions thus affect outcomes for injured parties. Future research and practice implications are discussed.

This chapter addresses the various legal and psychological factors that affect the decision-making process by which capital jurors reach penalty phase verdicts. Capital jury trials are unique in a number of respects, including the fact that jurors are selected through a special process of “death qualification,” consider a wide range of evidence that would otherwise be excluded in the typical criminal case, and, in the final analysis, must make the morally daunting decision of whether someone lives or dies. Social science research has documented the way that the very process of selecting a jury can affect capital jury decision-making processes, whether and how jurors consider the full range of evidence that is presented to them, the various ways that stereotypes, heuristics, and attributions might bias the sentencing verdicts ultimately rendered, and the “morally disengaging” aspects of the capital trial itself. Future research and policy implications are discussed.

Prosecutors’ decisions in common law jurisdictions remain understudied. Drawing on examples in Australian cases of child sexual abuse, this chapter provides insights into case attrition or advancement at the discretion of the prosecution. We discuss contextual factors that support this expanding area of prosecutorial practice, including legislation, available special measures for vulnerable complainants, and recommendations of the Australian Royal Commission into Institutional Responses to Child Sexual Abuse. We review factors that influence decisions on charges, whether a case proceeds, plea negotiation, jury versus judge-alone trials, and joint trials. These factors include the age difference between complainants and offenders, the time lapse between alleged offending and reporting, the quality of prerecorded interviews, and the amount of evidence. Recent research and developments affecting decisions by prosecutors about evidence by the complainant and expert witnesses in CSA trials are summarized. We conclude with suggestions for future research to expand understanding of the role of prosecutors’ decisions in this discrete area of criminal justice process.

In any legal case, there is a pool of possible forensic evaluators whom a court might order, or an attorney might retain, to conduct a forensic mental health evaluation. There is a growing body of research showing that these evaluators are not interchangeable. They differ somewhat in their attitudes, personality traits, opinions about how to conduct evaluations, and thresholds for reaching conclusions. These differences, coupled with the subjectivity inherent to psycholegal questions and the pull of adversarial allegiance to retaining parties, can lead to biased decision-making. Although there is some support for specialized training as a mechanism for reducing these biases, even increased training will never eliminate the subjective clinical judgment necessary for some aspects of forensic assessment. The goal is to work toward reducing the impact of hidden biases on case outcomes, which should lead to better decisions by both evaluators and consumers of their work.

In the United States, judges use “pattern instructions” to inform jurors of laws relevant to the case at hand, and for the procedures they are to use in order to carry out their duties. Although these instructions are written in a legally accurate manner, social science research has demonstrated that they are often not well understood by jurors, who consequently render decisions based on an incomplete, or inaccurate, understanding of the law. This chapter reviews factors that lead to comprehension problems associated with judicial instructions, including: the language and sentence structure typically used to write instructions, jurors’ education level and life experiences that contribute to preexisting beliefs about the law, and trial complexity. The chapter also reviews the effectiveness of solutions that have been proposed for improving jurors’ understanding of judicial instructions, so that more legally accurate decisions can be rendered.

Evidence law controls what information will be admissible in court and when, how, and by whom it may be presented. It shapes not only the trial decisions of lawyers, judges, and juries, but also many other pretrial and trial decisions and behaviors – for example, by police (whether to initiate a search) and defendants (whether to take a plea deal). Even when the relevant evidence law is known, these decisions are made under great uncertainty. Parties often do not know whether key evidence will be admissible at trial, cannot know how jurors will react to evidence, and, particularly in the criminal context, may not know what evidence their adversary possesses. With all these applications and uncertainties, understanding how legal decisions are made depends on understanding both evidence law itself and the human reasoning processes that created and use it. This chapter thus describes the interplay of evidence law and decision-making across a variety of legal settings and, accordingly, makes frequent references to other chapters in this book.

Expert testimony concerning risk and its communication to the trier of fact and other legal actors has important implications for some of the most significant legal decisions, from pretrial detention to capital sentencing. Although considerable psycholegal research has focused on the process of risk assessment and management, a limited number of studies have examined how risk is communicated and interpreted by judges, juries, and other legal decision-makers as well as the public. This chapter examines the primary methods of risk communication and critiques their usefulness based upon the legal contexts in which they are most commonly offered. In particular, legal decisions based upon risk concerning pretrial release, sentencing determinations, and sexually violent predator (SVP) laws are highlighted to discuss more general issues with risk communication in the legal system. Suggestions for more effective and accurate presentation of risk are offered, as well as the practical and legal policy implications of adopting such practices.

This chapter focuses on the expertise of forensic science practitioners who make legally relevant decisions from both a skills-based and vulnerabilities-based perspective. We bring together research relevant to forensic examiners’ decision-making to inform the development of empirically based solutions for some of the issues we raise. We begin by describing a general model of bias in judgment, explaining how experts can be vulnerable to systematic errors and biases in decision-making, but also how expertise can protect against bias in some circumstances. We then explore the cognitive mechanisms underpinning forensic science expertise to explore the unique abilities examiners develop, the important role of these unique abilities in forensic science decision-making, and their implications for selection and training. We describe what can be done now to enhance experts’ strengths and mitigate the negative effects of bias. Finally, we conclude by exploring how future research can continue to explore the unique abilities and vulnerabilities in forensic science decision-making to enhance professional performance.

Chapter 15, “Interviewing Suspects in Criminal Investigations: Decisions and their Consequences,” Mark Snow and Joseph Eastwood identified many factors that affect decisions made by police officers. As a retired Sheriff Sergeant, I comment on this chapter and provide a first-hand observation of how police officers make decisions in interrogations and investigations. Factors that influence these decisions include the training officers receive, legal and procedural rules, the officer’s personality and ability, time, and witness memory, among others.

Snow and Joseph Eastwood break down the interviewing of suspects into the five “W’s” (and discussions of each) includes considerations of the real-world constraints. In practice, and as the authors correctly identify, there is little training provided to patrol officers on the most effective techniques and best practices for productive interviews of suspects.

The use of expert psychological testimony by the courts involves a series of decisions. The initial decision involves an attorney or judge seeking out an expert to provide testimony. The second set of decisions – usually made by the expert in consultation with the attorney – concerns whether the potential testimony will be helpful or harmful to the case. A third set of decisions – made by the judge in a specific case – concerns the admissibility and scope of expert testimony at trial. If the testimony is admitted at trial, a final decision involves how much or how little weight jurors give the expert testimony while arriving at a verdict. These decisions are strongly shaped by the adversarial system. Drawing on empirical research and their experiences as expert witnesses, the authors explore how these decisions are made. Relevant research is reviewed, particularly on the content and impact of expert psychological testimony. New directions for research are discussed.

This chapter describes the legal landscape related to Miranda rights and waivers, as well as the relevant research literature regarding Miranda waiver decisions. The chapter identifies factors related to Miranda rights comprehension and waiver and emphasizes research addressing interrogations of youth and their abilities to provide a valid waiver. Research has identified that suspect-related factors, including age, IQ, and psychosocial maturity, as well as structural factors, such as the length, reading level, and content of the Miranda warnings, are related to Miranda comprehension and waiver decisions. The chapter also discusses the legal standard for judicial decisions related to the admissibility of confessions following Miranda waivers, as well as the factors that judges typically consider when making such decisions. Because research demonstrates that many suspects struggle when making Miranda waiver decisions, we conclude by making policy recommendations and identifying areas in which future research is needed.