Journal of Investigative Psychology and Offender Profiling

J. Investig. Psych. Offender Profil. 8: 74–89 (2011)

Published online in Wiley Online Library (wileyonlinelibrary.com). DOI: 10.1002/jip.133

Carson, D. (2011). Investigative psychology and law: towards collaboration by focusing on evidence
and inferential reasoning. Journal of Investigative Psychology and Offender Profiling, 8(1), 74 -89.
doi:10.1002/jip.133

Investigative Psychology and Law:

Towards Collaboration by Focusing on Evidence and
Inferential Reasoning

DAVID CARSON*
Institute of Criminal Justice Studies, University of Portsmouth, Portsmouth, Hampshire, UK

Abstract
Introducing a special issue of this journal, Youngs discussed the desirability of, but prob-
lems in realising, greater collaboration between psychology and the criminal investigation
and trial processes. This paper acknowledges the value of investigative psychology’s
potential contribution but argues that the alleged incompatibilities, between psychology
and law, are based upon too narrow a conception of law and legal action. A direct
approach, with considerable potential for productive, principled, and practical research,
already exists. It involves focusing on the evidence, assessing it along each of its three
credentials, and identifying the nature of the inferential reasoning involved. This paper
identifies a number of ways in which practical, inter-disciplinary and collaboration could
and should be developed to ensure that the courts receive quality evidence. It also argues
that more attention should be paid to abductive inferential reasoning, both by researchers
and courts. Copyright © 2011 John Wiley & Sons, Ltd.
Key words: relationship between law and psychology; scientific evidence; investigations
and trials; inferential reasoning about evidence

INTRODUCTION

Youngs (2009), introducing a special issue of this journal on investigative psychology in

the courts, argued that there is a chasm between law and psychology. However, she sug-
gested that ‘if the chasm between these two traditions can be bridged, the potential con-
tributions investigative psychology has to offer the legal system in terms of scientific
understanding and findings are considerable’ (p. 3). This paper, whilst agreeing about the
important potential contribution of investigative psychology, disagrees with the analysis
of the problems and proposes an alternate route to inter-disciplinary collaboration. In
summary, it argues that
1) The reported differences between psychology and law are more appropriately under-
stood as between practitioners and academics or researchers of whatever discipline.
*Correspondence to: David Carson, ICJS, University of Portsmouth, Portsmouth, Hampshire, PO1 2UP.
E-mail: [email protected].

Copyright © 2011 John Wiley & Sons, Ltd.

 Investigative psychology and law 75

The ‘law’ is not limited to what happens in courts, just as psychologists can contribute
more than expert evidence.
2) The most appropriate and productive route to inter-disciplinary understanding is
through a shared focus upon evidence, particularly inferential reasoning concerning
it. (These arguments will be aided and illustrated by identifying the potential of
‘evidence charts’.)
3) Psychologists’ concerns about the admissibility of inferences from their research (e.g.
that relating to offender profiles or the detection of deceit) should be considered in
the light of the three credentials of evidence (Anderson, Schum, & Twining, 2005)
and other insights being developed by the New Evidence Scholarship.
4) A focus upon these three credentials will demonstrate alternative routes to reliable
inferential evidence being utilised in the courts and different disciplines being able to
collaborate productively.
5) Both psychologists and lawyers need to pay much more attention to the use and misuse
of inferential reasoning about evidence, particularly abduction.

PSYCHOLOGY AND LAW: SHARED FOCUS ON HUMAN BEHAVIOUR

Youngs (2009) noted that the courts in several countries have been reluctant to admit
‘scientific’ evidence upon certain topics. With regard to investigative psychology, these
have included expert evidence on offender profiling (Freckelton, 2008) and the detection
of deception (Vrij, 2008). It may be thought that the courts have been particularly hostile
to receiving insights from psychology. Justickis (2008) has so argued in relation to ‘sci-
entific psychology’. But such analyses do not allow for the unique position of the ‘human
behaviour sciences’ in the courts. Psychology may have emerged as a distinctive academic
discipline over a hundred years ago, but lawyers and courts were analysing, generalising,
assuming, and theorising about human behaviour long before then. As Hutchins and
Slesinger (1929) explained,
For centuries the law has been fumbling with what has only recently become the
subject matter of psychology. Lawyers, judges, juries, legislators, and governmental
officers have always vaguely known that their task was the prediction and control
of human conduct. In performing this task they built up an empirical technique of
regulation called the law, in every branch of which, from contracts to crimes,
appear assumptions as to why and how people act in given situations. . . . Out of
this technique of regulation has grown a rough and ready science of behavior
which crystallized unfortunately before the dawn of modern psychology.
(pp. 13/14)
Law and litigation are, inextricably, bound up in theories, assumptions, etc., about
human behaviour. That makes law and psychology distinctive. So, until an evidence base
was developed upon certain topics, for example, memory and identification, it was not
only natural but necessary for lawyers to draw upon other sources of knowledge, inference,
or assumption. Lawyers knew that certain subjects, for example, physiology or engineer-
ing, were beyond their understanding, and they had to rely upon others’ special knowledge.
However, responding to, and predicting, human behaviour had always been a core com-
ponent of their work. They could not avoid ‘stepping in’ until there was, demonstrably, an
alternative and better source of knowledge on human behaviour.

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76 D. Carson

However, although psychology has developed an evidence base on a range of topics,

many lawyers have remained hesitant or reluctant to acknowledge its contribution. Often,
they have preferred their own ‘fireside inductions’ (Meehl, 1989) about human behaviour.
Until they have a much richer understanding both of what psychology can contribute, and
they regularly adopt a rigorous practice of reviewing when, whether and how their igno-
rance may be a problem, such reluctance must be expected to continue. But other causes
should also be appreciated, such as concerns about whether the many different costs
involved in seeking scientific knowledge (including time) are worth the insights psychol-
ogy offers. Until legal education not only broadens its syllabus (e.g. by including core
topics in the science of human behaviour) but also expands the intellectual skills required
of its graduates (e.g. the assessment of research methods), this reluctance must be expected
to continue. However, as the rest of this paper argues, practical inter-disciplinary collabora-
tion could immediately be enhanced by a common focus on evidence, and the proper
inferences that can be drawn from it.

WHAT DOES NOT DIVIDE PSYCHOLOGY AND LAW

Youngs (2009) argues that a ‘chasm’ or ‘impasse’ remains between law and psychology
‘in part because scientific psychologists and lawyers are guided by fundamentally different
epistemologies’ (p. 2). To evidence this, Youngs (2009) cites Canter’s (2008) identification
of six key differences of approach. Canter (2008) argues that ‘the law is focussed on the
case at hand’ (p. 3), whilst ‘psychology, as a science and profession, is still fundamentally
nomothetic, focused on trends and patterns across sub-groups not on descriptions of actual
persons’ (p. 2). Scientists reveal ‘underlying processes that can be distilled into a distinct
set of facts, whilst the courts are actually trying to derive a plausible narrative’ for the liti-
gant concerned (p. 5). Whilst psychology evaluates evidence according to scientific
methods, the courts evaluate it according to legal criteria relating to due process (pp. 6–7).
Courts work towards delivering a specific, justifiable, verdict; psychology seeks to con-
tribute to knowledge, although it may, incidentally, have something to contribute to a trial
(pp. 7–11). Lawyers focus exclusively upon evidence (that is, facts that make the issue
being disputed more or less likely to be true), whilst psychologists are concerned with
data whose relevance is not limited by a particular case or experiment (pp. 11–13). Law
stresses personal agency, responsibility for choices and action, whilst psychology notes
the significance of external factors beyond that individual’s control, such as their biology
or social class (pp. 13–16).
Other writers, including psychologists, have made similar, overlapping, and additional
points (for example, see Campbell, 1974; Haney, 1980, 1993; Schuller & Ogloff, 2001).
Collectively, these alleged distinctions make a case for concluding that the law and behav-
ioural sciences are incompatible. For example, law dichotomises; that is, it divides topics
into mutually exclusive categories, whilst science recognises relativity. People are male
or female, have a mental disorder or do not; their behaviour is reasonable or unreasonable,
etc. Law is retrospective; it casts back to what is alleged to have happened, whilst psychol-
ogy is prospective and is concerned to make decisions for the future. Law, unlike science,
is not probabilistic; it requires no competence in statistics. Law, unlike science, is not
causal; it applies conceptual categories—rather than tests of statistical significance—to
determine whether defendants caused the harm of which they are accused (Campbell,
1974). But all these alleged critical differences have been shown to be false (Carson, 2003).

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 Investigative psychology and law 77

The false premise that psychology (or any other discipline) and law are based upon dif-
ferent epistemologies arises from the assumption that ‘the law’ is only concerned with
what goes on in the courts. That premise involves an extremely narrow conception of what
law is and what lawyers do (e.g. McCrudden, 2006). All of the alleged differences and
incompatibilities relate to the practical exigencies of litigation. For example, it is perfectly
natural, and indeed necessary, for practising lawyers to ‘look backwards’ at the past behav-
iour that provides the evidence for a trial. However, when they draft a contract, they predict
and focus upon the future behaviour that they wish to regulate. When a court decides that
the defendant ‘caused’ the victim’s death, even though ambulance officers were slow in
getting him to a hospital, and the receiving doctor’s treatment was thoroughly bad, it does
so because it is applying the law’s test of responsibility for originating the chain of events
that allowed others to add their errors.
One practical consequence of ‘doing law’ is a valuing of exclusive categories and
dichotomies. Legislation and litigation rely upon identifying and enforcing categorical
distinctions. People are categorised as being ‘mentally ill’ or not, as possessing capacity
to make a contract or not, as having behaved reasonably or unreasonably. Having sharp
distinctions minimises uncertainty and confusion; it is an essential and efficient means
of protecting our rights and liberties. Generally speaking, legal instruments, such as
statutes, wills, and contracts, are regarded as well crafted and successful to the extent to
which they avoid problems of interpretation. But whilst most of these distinctions work
well most of the time, they can break down (e.g. the distinction between male and
female gender (Corbett v. Corbett, 1971). However, the law is not alone in using them.
They are a by-product of the classificatory systems that every discipline utilises. They
have practical value. Investigative psychology, for example, distinguishes between
offenders’ ‘organised’ and ‘disorganised’ behaviour (e.g. see Canter & Youngs, 2009,
pp. 336–343).
Dichotomous, or classificatory, reasoning has a necessary and valuable role. The prob-
lems are, first, that particularly in certain contexts (here we are concerned with the law
and trials), the need for a decision (verdict) can give distinctions (e.g. whether the defen-
dant was, or was not, experiencing a legally defined mental illness), a significance that
they would not otherwise receive. Clinical psychologists, for example, regularly treat
consenting patients with minimal legal intervention or supervision. Dichotomous reason-
ing is a feature, or cost, of our trial system. Second, dichotomous reasoning can be adopted
uncritically. If the law of the land specifies a distinction (e.g. only those falling within a
particular category will benefit from a legal defence), then those appearing before our
courts must expect to have to adapt their evidence to that reality, to that way of thinking.
That is a feature, or cost, of our democratic system that psychologists, and others, are
welcome to seek to change when not in an expert witness role. But whilst these methods
of reasoning may be necessary within a courtroom, non-lawyers should not uncritically
adopt them in other contexts. Dividing serial offenders’ behaviour into either ‘organised’
or ‘disorganised’ may have been a necessary and valuable first step when investigating the
potential of this factor as an explanatory and/or predictive aid (Ressler, Burgess, Douglas,
Hartman, & Agostino, 1986). But it is surely a variable, a difference of degree, rather than
nature or category. Whilst the differences between two or more offenders’ behaviour may
be so great as to merit, if not command, the use of different language for many purposes,
the character of the distinction remains one of degree. Canter and Youngs (2009) recognise
‘the inappropriateness of trying to classify people in terms of distinct types’ (p. 111). They,
correctly it is submitted, prefer reference to dimensions and themes as recognising the

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78 D. Carson

reality of relativity. The challenge, for co-operation between law and psychology, is to
find methods and a common focus that will not distort the reality of evidence about human
behaviour but that will recognise the pragmatic necessities of litigation and lawmaking
(which here includes drafting contracts and wills, etc.). The answer, argued below, is to
focus on inferential reasoning about evidence that, particularly through identifying the
three credentials of evidence, recognises the relativity of knowledge.
The distinction, which should be drawn, is not between law and psychology but between
‘academics’ and practitioners, whether they be lawyers, psychologists, or whatever. Prac-
tising lawyers will be concerned with the particular case, and evidence from the past, when
in court; did this witness correctly identify the defendant? But, on other occasions, they
may wish to influence the future behaviour of many people; for example, they might draft
a statute designating particular behaviour as criminal or rewrite a code on how best to
organise an identification parade (e.g. requiring sequential—rather than simultaneous—
viewing of faces). Equally, a practising psychologist will seek to understand a client’s past
behaviour in order to help him or her address current and future problems. Lawyers can
recognise that human behaviour is shaped by many factors outside of our immediate
control, for example, our education and upbringing. But courtroom lawyers know that
such information will not provide a defence, let alone a justification, for criminal behav-
iour, although it may be relevant to mitigate the sentence. Note that most of the distinctions
that Canter (2008) identifies make specific mention of law or lawyers in courtroom con-
texts. Whilst the differences he identifies between the disciplines are genuine, they are
time and place specific. He agrees “it is necessary to find the common ground that both
groups share in their perceptions” (p. 18). Part of that common ground is the nature of
evidence and inferential reasoning about it.
The focus upon the alleged differences in methodology between psychology and law
is, in part, an unfortunate by-product of some psychologists’ inappropriate preoccupation
with being allowed to give ‘scientific’ evidence in trials. It has even been said that ‘the
field of psychology and law is inextricably bound to developments in the area of expert
evidence’ (Faigman & Monahan, 2005, p. 632 endorsing Borgida & Hunt, 2003). The
courts confer a form of ‘legitimacy’ when they recognise an area of scientific expertise as
admissible in legal proceedings. It also creates an income stream for some experts. But
psychologists will always be able to help more people, and they will make a greater impact
upon law and legal practice, by promoting law reform. A new statutory test (e.g. about
capacity to make a legal decision) will impact upon all future cases, not just a few where
the parties knew about, and could afford, scientific evidence. A new procedure, for example
in how criminal investigations are undertaken, may be developed without requiring new
legislation. A multi-disciplinary consensus, upon improved practice, may be sufficient to
effect change. This is not to deny that lawyers ought to be more aware of, and welcoming
towards, the potential contribution of the behavioural sciences. But we do not need to
exaggerate the differences between law and psychology.

SHARING A FOCUS ON EVIDENCE

A bridge enabling collaboration between law, psychology, and other disciplines already
exists. Every discipline with a forensic potential can, and in the interests of enhancing
justice by achieving more robust verdicts should, collaborate by focusing upon the nature
and quality of inferential reasoning about evidence. This potential can best be explained,

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 Investigative psychology and law 79

and demonstrated, with reference to the work of Wigmore (1937), as rediscovered and
refined by Anderson et al. (2005).
The traditional focus of lawyers, both academic and practitioner, reflects the pragmatic
needs and interests of the trial courts. The ‘law of evidence’ is concerned with what is, or
should be, admissible as evidence in a trial (e.g. Tapper, 2007). Consider the debates
about whether and when ‘hearsay’ (secondhand) evidence or details of any prior offences
should be admitted (Roberts & Zuckerman, 2004). But Wigmore (1937) and Anderson
et al. (2005) are part of what has become known as the ‘New Evidence Scholarship’ whose
interests include the identification, analysis, assessment, presentation, and trial of facts and
inferences as evidence, both in theory and in practice (e.g. MacCrimmon & Tillers, 2002;
Murphy, 2003). The admissibility of scientific evidence is but one issue for them. The
development of a more rational, objective, and methodologically rigorous science of
investigation and proof is a goal.
Wigmore (1937) developed a system for analysing and charting the evidence in a trial.
Anderson et al. (2005) have both developed and simplified this. Traditionally, these charts
‘grow’ downwards. (See Figure 1 for the first steps in a very basic chart relating to a charge
of murder in England and Wales. Note that it is presented here in a much more basic
manner than it would be in a fully developed chart [e.g. see Anderson et al., 2005, pp.
137–9; Bishop & Walsh, 2007]). The top line is the simple allegation that the defendant

Figure 1. Example of what part of a basic evidence chart might look like in relation to a trial for murder in
England and Wales.
D, defendant; V, victim; GBH, grievous bodily harm; W1, witness 1; W2, witness 2.

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80 D. Carson

is guilty of the crime charged. This is the ultimate probandum, the last thing that must be
proved. Therefore, the line immediately below this contains the penultimate probanda. It
contains all the elements of the crime that must be established if the ultimate probandum
is to be true. The contents of this line are determined by the law of the jurisdiction con-
cerned. So, in relation to a charge of murder under the current law of England and Wales,
this will be (i) the victim (V) is dead; (ii) the defendant (D) caused V’s death whilst in
the Queen’s Peace; (iii) D intended to kill or to cause V grievous bodily harm (GBH); and
(iv) D has no legal defence. These requirements are also known to detectives as the ‘points
to prove’ (Stelfox, 2009, pp. 60–62).
All the evidence is then charted beneath the penultimate probandum to which it is
related. The relationship between any proposition, and the further evidence that supports
or detract from it, is explicit. Thus, these charts identify not only the evidence but also the
inferential reasoning that is at the heart of every investigation and trial. In the system
favoured by Anderson et al. (2005), evidence that supports a proposition (e.g. identification
of D by a witness) is placed beneath it, whilst anything that challenges or minimises its
value (e.g. that D has an alibi) is charted to the side. So, evidence that supports a challenge
to a prosecution claim (e.g. an alibi) would be charted beneath it. But evidence can be
charted in other ways, such as using different colours, different shapes for the nodal points,
or connecting lines. Mind mapping software could be adopted with additional facilities
for ensuring electronic links between the nodes and representations of the evidence (e.g.
a direct link that can bring up a witness’ statement or CCTV images when clicked) (Carson,
2010). Evidence charts provide an analytical overview of the evidence, of how it ‘fits
together’. They have many potential uses, from helping to assess the strength of a case
(e.g. identifying ‘weak spots’) to helping a jury understand how the evidence ‘fits together’.
Whilst they are most likely to be developed by investigators and prosecutors, they are as
valuable for the defence as the prosecution.
Evidence charts are recommended as a means of identifying the potential for a shared
focus upon the nature of evidence and the inferential reasoning. That they are not regularly
developed by investigators, prosecutors, or lawyers—they are novel and time-consum-
ing—cannot detract from their potential as a tool and model for thinking about evidence
across all disciplines. They enable us to think about how, for example, inferences may be
drawn from a serial offender’s behaviour and where that contribution ‘fits in’. Of greater
importance is that this approach will encourage everyone to think about the value—the
credentials—of each piece of evidence and how that may be established.

WE ARE ALL CONCERNED WITH THE CREDENTIALS OF EVIDENCE

Evidence charts help to illuminate the three credentials of evidence. These are the rele-
vance, credibility, and inferential power or weight of each piece of evidence (Anderson
et al., 2005). ‘Relevance’, here, has two meanings. Lawyers traditionally think of the
relevance of evidence in a categorical manner. In this first sense, facts are only ‘relevant’,
and therefore evidence if, directly or indirectly, they make a penultimate probandum more
or less likely to be true. (The fact that your fingerprint or DNA is on a kitchen knife is of
no relevance if the accusation is that you parked your car improperly.) But ‘relevance’
also has a second meaning in this context. Evidence charts show how, analytically, each
piece of evidence (piece of the jigsaw) relates to the total allegation. Some pieces will be
more relevant, important, than others. For example, your evidence that D was in your

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house at 4.00 pm might be useful to show that D could have been at the nearby crime
scene at 4.30 pm when V was killed. But your evidence that D was still in your house at
4.30 pm would be highly relevant to support alibi evidence to the effect that he could not
also have been at the crime scene. Evidence that is charted as directly linked to a penul-
timate probandum is clearly of the greatest relevance, for example, the defendant’s confes-
sion to committing the crime. It has considerable value, relevance, to substantiate the
contention that D did as he or she said. However, relevance is just one credential; the
credibility and inferential weight, of that confession, must also be considered (see below).
Other evidence, for example, that a prosecution witness has a good character, will not be
so relevant because its role is to support other evidentiary claims. It would not be charted
so close to the penultimate probandum. Even if academic discussions rarely highlight the
problems of resources for trials (e.g. such costs as expense, time, etc.), they are highly
relevant. Prosecutors must exercise judgements, before and during trials, about the value
of calling evidence if it will add little extra value and if it has little relevance. Evidence
charts could help them make these judgments by identifying the branches bearing rela-
tively little extra relevance or evidentiary value.
The issues that Youngs (2009) raises, concerning ‘the law’s’ willingness to utilise
insights and research from investigative psychology, are more concerned with the other
two credentials of evidence, that is their inferential weight (or power) and their credibility.
Imagine, for example, that D’s DNA was discovered on a knife at the scene where V died.
Investigators’ initial responses are liable to be very positive because such evidence is regu-
larly considered to be very powerful, highly persuasive in court. Generally, it has a high
inferential weight or power. But, again, the other two credentials (relevance and credibil-
ity) must be considered in the context of the particular case. That D’s DNA and fingerprints
were on a knife, at the scene of a crime, will be of little relevance if V was shot. Moreover,
even if the DNA and fingerprints were on the murder weapon, that evidence could lack
credibility if, for example, the samples or prints were improperly taken, retained, worked
upon, or documented. The three credentials are independent. Some evidence, for example,
a confession, may be highly relevant and therefore mapped close to a penultimate proban-
dum. However, its inferential weight and/or credibility might be very poor (e.g. the confes-
sion might have been coerced), making it of little overall value.
The challenge, for inter-disciplinary collaboration, is to identify appropriate ways of
assessing, and enhancing, the inferential weight and the credibility of different forms of
evidence. This involves a much broader agenda than the current preoccupation with secur-
ing judicial recognition for more areas of psychology, or any other discipline, as ‘scien-
tific’. Decisions, such as those of the US Supreme Court on when evidence may be
regarded as scientific and therefore admissible (Daubert v. Merrell Dow Pharmaceutical
Inc., 1993; General Electric Co v. Joiner, 1997; Kumho Tire, Ltd. v. Carmichael, 1999)
or statutes, if the proposals in the Law Commission (2009) are turned into legislation, can
only provide threshold tests. They can only get the evidence ‘in the door’ of the court.
They may allow more scientists to express opinions about their domain, but it does not
follow that that evidence will be valuable. Focusing upon the credentials of evidence,
particularly their potential credibility and inferential weight, will enable us to consider a
much wider range of approaches.
Scientists will continue to seek ‘direct’ ways in which more reliable claims can be made.
They will focus upon being able to show that, following explicit protocols to ensure control
of variables and comparability, different researchers reach sufficiently similar conclusions,
for example, about the behaviour of those telling lies versus those repeating the truth. But

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other approaches are available. Consider the ‘indirect’ routes some forms of evidence have
taken to ‘judicial recognition’, for example, the perceived reliability of suspect interviews.
Previously in England and Wales, before police interviews were routinely audio taped,
their reliability was regularly questioned. It was easy to challenge them as there was no
direct, ‘concrete’, record of the interview, just a police officer’s account that could be
argued to be partial or inaccurate. Now, especially when they are also video-taped so that
third parties can observe the absence of any obvious malpractice, police interviews are
accorded much greater credibility, respect, and reliability. Challenge is much more diffi-
cult. The changes were recommend by a Royal Commission (Philips, 1982), which com-
missioned research, and they were given effect in codes established by the Police and
Criminal Evidence Act 1984. Psychological research into memory processes has led to
interviewing techniques (e.g. the cognitive interview that enable suspects and witnesses
to remember more with, at least, no reduction in the reliability of that information (e.g.
Milne & Bull, 2003). The value of the research is not questioned, but attention is drawn
to how the simple adoption of an auditable procedure, audio-taping, also made a consider-
able impact. Moreover, the value of the research has been further enhanced by its adoption
into professional protocols for ethical police interviewing (ACPO, 2009).
Consider also the changes in the perceived reliability of children’s evidence. Young
children used to be regarded as unreliable witnesses, as natural liars (see sources cited in
Spencer & Flin, 1990). Now, after research-informed discussions and documents that
convinced government (e.g. Home Office, 2002), rather than from instances of expert
evidence, we have special measures for taking their evidence (under the Youth Justice and
Criminal Evidence Act 1999). Indeed, in R. v. Barker (2010), a 4-year-old child was treated
as competent to give evidence about what occurred whilst aged three. There has, effec-
tively, been a revolution in attitudes and beliefs about children’s evidence. So, the argu-
ment is that we should not focus exclusively upon the ‘what’, that is the nature of the
evidence (e.g. the interpretation of crime scenes), or upon its inherent ‘scientific creden-
tials’. Rather, we should also consider the ‘how’; how different forms of evidence can
have their relevance, credibility, and inferential weight enhanced—and challenged. Argu-
ably, the most valuable boost to identification evidence came when the courts identified
some of the criteria that should be considered when considering its relevance, credibility,
and inferential weight in actual trials. The criteria, now often referred to by the mnemonic
ADVOKATE, were identified by Lord Widgery, Chief Justice, in Turnbull (1970). (The
US has a comparable decision, from its Supreme Court, in Neil v. Biggers (409 US 188
[1972]). They include such issues as the distance between the witness and the person or
object he or she observed. The criteria appear to be based upon the report of an official
inquiry chaired by another eminent judge, Lord Devlin (1976), where the extant research
was considered. So, this is another example of how appropriate advances can be made
outside of courts for later adoption in court without the limits imposed by a focus on the
status or admissibility of particular forms of expert evidence.
This is not the place to develop theories as to how generic forms of evidence might be
rendered more trustworthy; however, one technique involves enhancing the ‘concrete’
character, or ‘visibility’, of evidence. Fact finders, it is submitted, prefer (consider more
credible), physical evidence that permits them to ‘see’ or otherwise to test directly the
reliability of the claims and inferences being made about it. Consider the growth in use
of CCTV and other images, stills and videos, in trials (see also Feigenson & Spiesel, 2009).
Moreover, expert witnesses can choose to present their evidence in a manner that empha-
sises its physical, tangible character. For example, an expert witness on handwriting or

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fingerprint could display enlarged charts of the evidence and directly demonstrate similari-
ties and differences to the judge and jury, rather than simply rely upon his own opinion
and professional reputation. It is submitted that authorities on the interpretation of crime
scenes could develop comparable techniques to rationalise one interpretation as being
more likely than another.
Youngs’ (2009) concern, about the law’s treatment of psychological knowledge, is
particularly concerned with considerations relating to the inferential weight of different
forms of evidence. How, for example, should inferential weight be assessed and expressed?
And, critically, is it the ‘actual’ or the perceived inferential weight of different forms of
evidence? As Hutchins and Slesinger (1929) explained (see above), the courts developed
a series of assumptions about human behaviour. Many have had to be challenged. For
example, excessive belief in the reliability of memory and identification evidence has led
to a number of apparently innocent people being wrongly convicted. Scientific develop-
ments have made it possible to review historic court decisions such as by subjecting
retained evidence to DNA analysis that was not possible at the time (Connors, Lundregan,
Miller, & McEwen, 1996). Confession evidence has also been accorded more weight than
it deserved (Gudjonsson, 2003). However, by focusing on the credentials of evidence, we
have an opportunity to ensure more informed weights are applied. But, to achieve that,
we will also need to focus on how we reason about evidence.

INFERING FROM AND TO THE EVIDENCE

This paper argues that the law and other disciplines can and should collaborate by focusing
upon investigations and proof in trials. To this point, the emphasis has been upon identify-
ing evidence and assessing its credentials. But trials and proof require an assessment of
all the evidence, that for the prosecution (supporting proof of the ultimate probandum),
that which detracts from that evidence (i.e. is relevant to the defence), and evidence that
is missing whether that is because it has not been acquired (i.e. someone is known to have
witnessed the crime but has not been found), or because there is a ‘gap’ (comparable with
a missing jigsaw piece). The judge or jury must draw inferences from that evidence, both
from individual pieces of information and when it is collated together as the branch of an
evidence map. The core and common feature of these processes is inferential reasoning
about evidence. That provides another opportunity, not obstacle, to the adoption of psy-
chological and other scientific insights and research.
Unfortunately, inferential reasoning about evidence has not received the attention it
deserves. There are three forms of inferential reasoning: deduction, induction, and abduc-
tion (Anderson et al., 2005; Schum, 1994). Deduction and induction are widely recognised
in investigative psychology (e.g. explicitly recognised in Canter & Youngs, 2009). In
marked contrast abduction, whilst recognised as central to forensic pathology (Nordby,
2000), and practised by detectives albeit without being so named (Innes, 2003), it is not
mentioned in some recent texts on investigations (e.g. Canter & Youngs, 2009; Fraser &
Williams, 2009; Stelfox, 2009).
Deduction involves drawing a conclusion from what we already know. It is most clearly
represented in the form of a syllogism: ‘all liars fidget, D fidgeted; therefore, D is a liar’.
If the premises are true and the correct syllogistic form is adopted then, and this is the
distinctive feature of deductive reasoning, the conclusion has to be true. But the premises
in this example, the assumptions about human behaviour, are not true. All liars do not

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DOI: 10.1002/jip
84 D. Carson

fidget. The problem for the courts is that there are few, if any, generalisations about human
behaviour that are universally true.
Induction involves making an inference from what we already know. With inductive
reasoning, we are not certain about our premises and, therefore, we cannot be sure about
our conclusions. ‘Ninety per cent of liars fidget; D fidgeted; therefore, there is a good
chance that D is a liar’. If it is indeed true that 90% of liars fidget then we could justify
drawing such a conclusion, although we ought, amongst other things, to be circumspect
about the comparability between D and the research population and the circumstances in
which they fidgeted. Clearly, inductive inferential reasoning is the staple diet of scientific
psychology.
Abduction involves generating an inference that explains what is already known. ‘D
began to fidget when asked questions on a particular topic. That may have been because
he began to lie’. Abduction, distinctively, is a creative process (Schum, 1994). Unlike the
other forms of inferential reasoning, it generates ideas, theories of the case, and hypotheses
(see discussion on ‘hypotheses’ below). Significantly abduction, not deduction, was the
distinctive inferential process of that paradigm, albeit fictional detective, Sherlock Holmes
(Carson, 2009a). However, whilst novelists can arrange for their characters’ abductions to
be correct, that is not a characteristic of the reasoning process. Abductive inferences must
be checked, particularly by inductive reasoning. Could there be other reasons why D began
to fidget at that stage? Only deductive inferences, when properly applied, can assure us
of the truth of a conclusion.
Charts present and analyse the relationships between the evidence collated. They par-
ticularly facilitate a focus upon the inferential reasoning that is the ‘engine’ of proof.
Deduction and induction are always represented. The top two lines of an evidence chart
involve deductive reasoning. If the penultimate probanda are satisfied, then guilt follows,
necessarily, because they merely articulate what the specified crime requires. But, of
course, we cannot be sure that the penultimate probanda are satisfied, although some (e.g.
that V is dead) may be accepted by all the parties. So, recognising the impossibility of
assurances of perfect evidence that would permit deductive reasoning, the law has speci-
fied less than absolute standards of proof for different probanda (e.g. ‘beyond reasonable
doubt’). These penultimate probanda are reliant upon both inductive and abductive infer-
ential reasoning.
Charts are particularly valuable tool for identifying the many inductive inferences that
will be involved. For example, the witness’ evidence is relevant, credible, and powerful
because she recognised the suspect, having observed him over several minutes, at close
quarters and without being frightened. But how should each of those credentials, particu-
larly credibility and inferential weight, be assessed? And when the values for each piece
of evidence have been assessed, for example, that the witness recognised the suspect, how
are they to be added to (or subtracted from if it is evidence for the defence) other pieces
of evidence, such as that the observation lasted for several minutes? Whilst it is not sug-
gested that explicit or ‘hard’ values can be derived for such forms of evidence, at least at
this time, the analytical discipline of thinking rigorously about the appropriate credentials
for each piece of evidence should improve the reliability of decision making. The disci-
pline should, for example, include checking that inappropriate generalisations (Anderson
et al., 2005) or assumptions are not being made and ensure that the assessments have been
particularised to the circumstances of the case.
The same approach can be applied to topics that are more closely associated with
evidence based upon experts’ opinions, for example, the prediction of risk. Consider that

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 Investigative psychology and law 85

serious criminal activity at an early age is a predictor for re-offending (Berk, Sherman,
Barnes, Kurtz, & Ahlman, 2009). This offender’s record includes serious offences at an
early age. Therefore, we can infer that he is a risk for re-offending and, because of the
quality of this particular research, we can begin to quantify it. That example involves
inductive, not deductive, reasoning because—like most, if not all, forms of knowledge
involved in forensic inquiries—it is based upon relative, not absolute, science. We cannot,
correctly, imply an ‘all’ statement such as, ‘All those who seriously offend at an early age
will re-offend’. (Even if that generalisation was permissible, we could not conclude that
a particular individual had re-offended on this occasion.) The scientific knowledge cur-
rently available does not permit such a claim and belief systems, that humans choose their
behaviour, would not permit many people (perhaps particularly lawyers), to agree. Instead,
we have to investigate (i) the scientific merits and (ii) the ‘policy’ implications of drawing
conclusions from such findings. (i) How appropriate is it to conclude (e.g. how likely is
it) that D falls within the group of such people who re-offend? And (ii) should the inves-
tigators, magistrates, jury, and parole board hear about that information because they may/
should be influenced/biased by it? Just because powerful and valuable inferences may be
drawn, from certain forms of inductive knowledge, it does not follow that they should be.
At least in England and Wales, it is not just the inferential power of the evidence in a trial
but the perceived propriety of using certain forms of evidence and inference (Roberts &
Zuckerman, 2004).
Youngs (2009) is, in effect, appealing for less prejudice against the use of inductive
inferences from knowledge developed by investigative psychologists. This might be
secured by inter-disciplinary collaboration on when and how apt inferences may be made.
If scientists appreciated lawyers’ concerns about the prejudicial effects of certain forms of
evidence, then it may be possible to devise strategies that reduce their concerns. It might,
for example, be productive to adopt an explicit ‘risk’ framework. How can we reduce the
likelihood, for example, of juries misunderstanding certain forms of evidence (e.g. infer-
ring that D is guilty of this offence simply because he offended as a young child), and/or
the seriousness of the consequences if they do?
But equal, or greater, concern ought to be demonstrated over the use, and non-use, of
abductive inferences in investigations and trials. Some abductive reasoning will be repre-
sented in an evidence chart. The chart will reflect the investigators’ theory, hypothesis or
‘story’, about what happened. Thus, they will have used the knowledge they already
possess, or more strictly what they believe they can prove to a satisfactory standard, to
generate a theory of the case. But, as the defence are likely to emphasise, that is not neces-
sarily the only or best explanation for what is currently known. It is not, at least in an
adversarial trial system, the jury’s duty to investigate alternative theories. They cannot
know what a more extensive investigation, which logically must always be possible, might
have divulged. However, in that they are required to consider the extent to which they
entertain doubt about the prosecution’s version of events and to adjudge whether that doubt
is reasonable, they are bound to think about alternatives. But will their abductive reasoning
be appropriate? Will they draw upon assumptions, or ‘common sense reasoning,’ that are
inappropriate and go unchallenged in the courtroom? For example, will they think that
witnesses who avoid eye contact or fidget are lying? Will they agree with the lawyer who
argues that a witness is unreliable because he ‘changed his evidence?’ The witness might
have described what he or she saw in different words, and with more or less detail, between
the first and a later interview by police officers. But those ‘changes’ in evidence may be
explicable. The witness may have found more or better words to describe his or her

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86 D. Carson

experience some time, rather than immediately, after the event. And he or she may have
interpreted the officers as seeking a fuller description during the later interview. The
concern ought to be that the abductive insights of psychologists Arne Trankell and Udo
Undeutsch, which have been supported by subsequent research associated with Statement
Based Content Analysis (Vrij, 2008), would support the latter inferences. But expert evi-
dence on such research is not admissible in most common law countries (Vrij, 2008).
However, alternative abductive inferences could and should be considered during the
investigation and not just the trial. If the abductive inference is ‘reasonable’, perhaps again
applying a risk framework, then the investigators can search for further evidence to test
it. That the inferences are based upon a science that is not currently admissible as expert
evidence at trial is not a problem during an investigation.
For example, it might be suggested that the evidence currently available indicates that
E, not just D, could have committed the murder. Further investigation, for example, by
checking whether E has an alibi, could be undertaken to add to or to challenge this fresh
‘interpretative’ fact. So, abduction is central to the quality of investigations and the rigour
of trials. For example, a major cause of miscarriages of justice has been identified as case
construction (Maguire & Norris, 1992). This occurs where and because investigators
identify a suspect, at an early stage, and then focus upon finding evidence that supports
the hypothesis that he/she is guilty rather than finding more, general, evidence. If inves-
tigators are encouraged to develop and apply abductive inferences (Carson, 2009b), that
is to contemplate alternative explanations for the existing evidence (e.g. different ways in
which the crime might have been committed by other people), they are less likely to make
this sort of error associated with premature decision making. Abductive inferences are also
important for considering the potential implications of missing, or negative, evidence.
Investigators could ask themselves which forms of evidence might exist, but which they
have not yet identified, that would explain the existing evidence in a significantly different
manner. There are, necessarily, financial constraints on investigations. The potential
implications of limited resources should be explicit.
Psychologists have a great deal to offer investigators and prosecutors in terms of iden-
tifying inappropriate assumptions about human behaviour (e.g. decision making) and
considering plausible alternative scenarios. One way forward would be to improve forensic
investigations so that juries can place greater trust in them. Trials are already, at least in
part, reviews (audits) of the quality of the investigation undertaken. Were the police thor-
ough, at least in terms of good practice? Did they sufficiently investigate plausible alterna-
tives? The disciplines can and should collaborate to ensure more rigorous investigations.
If these arguments are accepted, then the relative absence of reference to abductive
inferential reasoning in contemporary discussions of investigations, is disturbing. It might
be understood in terms of certain disciplines, such as psychology, having a preference for
reference to ‘hypotheses’. Although there may be an overlap in how the expressions are
used, there are also significant differences. For example, psychologists’ hypotheses are
liable to be constructed, for research purposes, in order to identify questions/inferences
that may be researched in an acceptably rigorous manner. Those hypotheses will be influ-
enced by the researcher’s perspective, by his or her needs, methods, resources, etc., rather
than just by the case in hand. ‘Hypotheses’ may also be developed by investigators but, it
is submitted, some manuals offer poor advice. For example, the Association of Chief Police
Officers has endorsed advice (2005) to the effect that ‘hypotheses should only be used
when absolutely necessary’ (p. 72). They should also ‘offer the most logical, explanation
of the facts as they are known’ (p. 71). Although it is perfectly understandable that inves-

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 Investigative psychology and law 87

tigators should be discouraged from spending excessive time and other resources contem-
plating ‘unreasonable’ alternative explanations for the evidence (i.e. abductive inferences),
there is no necessary reason why an abduction, which proves to be valid, would appear
‘logical’ or ‘reasonable’ at the time it was generated. This advice could inhibit critical
thinking.
There may also be a concern that abductive inferences are equivalent to ‘clinical’ pre-
dictions. There has been, for example, a long and forceful debate as to whether clinical or
actuarial predictors are the more powerful, reliable, (e.g. when predicting the potential
dangerousness of a mentally disordered person, Monahan, Steadman, Silver, Appelbaum,
Clark Robins, Mulvey, Roth, Grisso, & Banks, 2001). Abductive inferences may ‘sound’
like clinical predictions, given the value placed upon individuals’ creative insights into
alternative or additional explanations. For example, some offender profiling, based upon
clinical insights rather than actuarial methods, has been criticised (Canter & Youngs,
2009).

CONCLUSION

This paper has, hopefully respectfully, used Youngs’ (2009) editorial in this journal to offer
an alternative perspective on, and agenda for, investigative psychology and law. It has
acknowledged that psychology and law have their differences but argued that they are not
as great as often argued. The paper has argued that many of the problems arise from an
inappropriate and narrow focus upon the law as what goes on in the courts. Greater inter-
disciplinary collaboration can be achieved outside of courts where the restrictions on
expert evidence do not apply. In particular, there are many opportunities to collaborate on
promoting the reform of laws and legal procedures and to improve the investigations,
which are a pre-requisite for any trial, civil, or criminal cases. Universities could make a
valuable contribution here. If we want universities to produce graduates who can not only
restate substantive information (e.g. compare and contrast the inferential weight of differ-
ence forms of evidence) and follow procedures (e.g. analyse a disputed incident), but think
critically and imaginatively (e.g. develop apt abductive inferences), can assess the quality
and authority of both evidence and arguments, are not inhibited by but challenge disci-
plinary boundaries, and can demonstrate their competence in practical ways, why do they
not offer degrees in investigations? Few topics could form the basis of a more intellectu-
ally demanding, not just practical, initial degree that would provide a requisite foundation
for subsequent specialisation in many existing disciplines.

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