Provocative essays that anticipated modern concerns about courtroom psychology

In 1908, German-American psychologist Hugo Münsterberg published On the Witness Stand, a series of essays boldly critiquing the justice system. He warned that jurors misremember, witnesses deceive themselves, and expert evidence may persuade more than it informs. Lawyers scoffed. Judges dismissed him. The press called him arrogant. He wasn’t wrong, just early.

Over a century later, the Innocence Project has exonerated over 375 people in the US, with nearly 70% of wrongful convictions involving mistaken eyewitness testimony. In Brennan v HM Advocate [2020] UKSC 6, the UK Supreme Court scrutinised psychological expert evidence for the first time in decades, warning against overreliance on demeanour-based assessments. Münsterberg’s point remains: the courtroom isn’t a sanctum of truth. It’s a stage shaped by memory flaws, institutional bias, and the persuasive theatre of trial.

When law needs psychology

Münsterberg argued that legal training alone isn’t enough. Without insights from psychology, on perception, trauma, and memory distortion, lawyers risk building arguments on illusions. He wasn’t being provocative. He was being accurate. We accept that memory is fallible. But do we practise as if it is?

Courtroom as stage, not laboratory

Jurors still confuse calmness for credibility and distress for deceit. Witnesses are coached on posture, eye contact, and filler words. Trauma, neurodivergence, and cultural expression are penalised. Polish is rewarded. That’s not justice, it’s theatre.

Cross-examination isn’t a cure

Münsterberg warned that cross-examination can distort memory, not clarify it. Repetition, interruptions, and false feedback don’t test truth; they can manufacture it. Especially in emotional trials, scrutiny becomes contamination.

Experts aren’t immune

From bite marks to blood spatter, courtroom science has a poor track record. Brennan rightly cautioned against expert overreach, especially in opining on credibility. Jurors defer to authority even when the science is shaky. Münsterberg’s call was simple: law needs help. From science. From humility. From beyond its own echo chamber. If truth and justice are supposed to align, Münsterberg isn’t history; he’s a warning we’re still learning to hear.

Rebecca Ward MBA is director of Barristers’ Health (mental health and strategy for the legal profession)