Physc On Criminal Minds Wek2

International Journal of Law and Psychiatry 49 (2016) 55–65

Contents lists available at ScienceDirect

International Journal of Law and Psychiatry

Criminal profiling as expert witness evidence: The implications of the profiler validity research

Richard N. Kocsis a, George B. Palermo b

a Psychologist in Private Practice, Sydney, Australia b University of Nevada School of Medicine, Henderson, NV, USA

http://dx.doi.org/10.1016/j.ijlp.2016.05.011 0160-2527/© 2016 Elsevier Ltd. All rights reserved.

a b s t r a c t

a r t i c l e i n f o 

Article history: Received 14 May 2016 Accepted 16 May 2016 Available online 20 June 2016

The use and development of the investigative tool colloquially known as criminal profiling has steadily increased over the past five decades throughout the world. Coupled with this growth has been a diversification in the suggested range of applications for this technique. Possibly the most notable of these has been the attempted transition of the technique from a tool intended to assist police investigations into a form of expert witness evidence admissible in legal proceedings. Whilst case law in various jurisdictions has considered with mutual disinclination the evidentiary admissibility of criminal profiling, a disjunction has evolved between these judicial examinations and the scientifically vetted research testing the accuracy (i.e., validity) of the technique. This article offers an analysis of the research directly testing the validity of the criminal profiling technique and the extant legal principles considering its evidentiary admissibility. This analysis reveals that research findings concerning the validity of criminal profiling are surprisingly compatible with the extant legal principles. The overall conclu- sion is that a discrete formof crime behavioural analysis is supported by theprofiler validity research and could be regarded as potentially admissible expert witness evidence. Finally, a number of theoretical connections are also identified concerning the skills and qualifications of individuals whomay feasibly provide such expert testimony.

© 2016 Elsevier Ltd. All rights reserved.

Keywords: Criminal profiling Criminal investigative analysis Profiler validity Profiler accuracy Crime scene analysis Expert witness evidence

1 It should be noted from the outset that the generic term of ‘criminal profiling’ is used throughout this manuscript to describe the forensic psychiatric/psychological technique of assessing behavioural features evident within a crime or series of crimes for the purpose of inferring attributes about the crime(s) and/or its perpetrator(s). Although the exposition canvassed within this manuscript predominantly adopts this generic term the technique of profiling violent crimes is, in fact, characterized by a host of differing methodological ap- proaches. Accordingly, the topic and field can be conceptualized inmetaphor as being anal- ogous to the topic ‘personality theory’ within the disciplines of psychiatry and psychology. There exists a general consensus pertaining to the construct of the mind and human con- sciousness. However, the precisemachinations as to how themind operates are the subject of diverse theoretical perspectives such as, but not limited to, psychodynamic, behavioural and cognitive paradigms. Likewise, the topic of criminal profiling is characterized in the samemanner with a general consensus concerning the viability in evaluating crime behav- iours to infer attributes about the offender. However, how this task is optimally accom- plished is the topic of rivalling theoretical and methodological perspectives. Starting in the late 1970s to the present day the conceptual basis of criminal profiling has gradually evolved whereby it is now widely regarded as constituting another disciplinary component ofmainstream forensic psychology (Kapardis, 2014). This recognition of criminal profilinghasprogressed to such anextent that dedicated analystswhoperformsuchprofiling tasks have been in operation for many decades in the USA under the auspices of the U.S. De- partment of Justice’s National Center for theAnalysis of Violent Crime (Douglas, Burgess, Bur- gess, & Ressler, 1992; Douglas et al., 2013). In recent years this professional recognition of profiling has extended to the United Kingdom wherein analogous tasks are now performed under thenomenclatureof Behavioural InvestigativeAdvisor. One common feature to thede- velopments in this profiling of violent crimes and its professional recognition throughout the world has been an increasing orientation towards empirical, evidence based research meth- odologies incumbent to the practises of such crime analysts (Kapardis, 2014).

1. Introduction

Beyond the many fictional portrayals starting with the 19th century literary works of Sir Arthur Conan Doyle (Doyle, 2009) to the more recent novels by Thomas Harris (Harris, 1981, 1988, 1999) the concept of analysing behavioural features exhibited in a crime to formulate an impression of the offender has, over the past five decades, grown substantially in terms of its use by law enforce- ment and the scholarly research undertaken into its development (e.g., Douglas, Burgess, Burgess, & Ressler, 2013; Hazelwood, Ressler, Depue & Douglas, 1995). Although a universally recognized label does not currently exist for such crime behavioural analysis the technique has broadly and colloquially come to be known as ‘Criminal Profiling’ (Kocsis, 2015). Inherent to this growth in criminal profiling has also been a gradual diversification surrounding the types of analyses associated with the technique. That is, beyond its original conception as a technique oriented towards identifying characteristics of the probable offender criminal profiling also encapsulates numerous other analytic endeavours such as, but not limited to, the differentiation of motivational factors, reoccurring behavioural patterns, and the geographic relevance of crime locations (e.g., Douglas et al., 2013; Kapardis, 2014; Rossmo, 2000). Notwithstanding these variant forms of analysis encapsulated under the rubric of criminal profiling all nonetheless share one common feature. This is their foundational conception as analytic mechanisms

undertaken within the context of law enforcement investigations that are designed to assist with the apprehension of unknown offenders1

 

 

2 Ostensibly this entire rationale is a manifestation of the old English proverb ‘the proof is in the pudding’.

3 Any internally conducted research can feasibly serve aworthwhile purposewhen con- sideredwithin the context of its own operational framework such as, for example, a police agency concerned with its own organizational development. Accordingly, the findings of an internal report can indeed be considered valid and acceptable when consideredwithin the context of its individual internal environment. However, the criteria in terms of rigour and merit upon which any research is assessed varies dependent upon context. For the findings of any research to transcend one context to another requires that it be subject to scrutiny via the standards of that alternate context before it can be regarded as accept- able. Unfortunately, this has not occurred and thus as noted in the decision of State v Ste- vens (2002) whilst the claim of a 75–80% accuracy ratio is tantalizing it is currently unsuitable within the context of legal forums.

56 R.N. Kocsis, G.B. Palermo / International Journal of Law and Psychiatry 49 (2016) 55–65

(Rossi, 1982; Skeem, Douglas, Lilienfeld, 2009; White, Lester, Gentile & Rosenbleeth, 2011).

However, over time a gradual transition has occurred concerning the contextual formulation of criminal profiling. That is, beyond its traditional applicationwithin police investigations there have been grow- ing efforts for criminal profiling or some derivative style of analysis to be used as a form of expert witness evidence (Freckelton & Selby, 2013). Consequently, accompanying this growth and development in criminal profiling have been attempts to slowly evolve its conceptual basis into a form of proof capable of assisting the determination of an individual’s guilt or innocence within the context of criminal proceedings.

In a generic context the technique of criminal profiling has for some time suffered from an imbalance between the favourable reputation the technique appears to enjoy and the scientifically grounded research that might substantiate its capabilities and thus reputation (e.g., Herndon, 2007; Oleson, 1996). Unfortunately, one manifestation of this phenom- enon concerns its forensic application wherein past attempts to use the technique as evidence in legal proceedings appear to have occurredwell in advance of the scientifically vetted research that might be capable of validating its admission (e.g., R. v Hillier (2003); State v Stevens (2002)). Accordingly, the present article attempts tomake an initial contribution towards addressing this apparent disparity by examining the legal principles relevant to the potential admissibility of criminal profiling as expert witness evidence in conjunction with the scientific research test- ing its accuracy (i.e. validity). Previous considerations of the evidentiary admissibility of criminal profiling have predominantly been focused upon reviewing and providing commentary on the evolving case law in the area (e.g., Bosco, Zappala, & Santtila, 2010; Ebiskike, 2008; Freckelton & Selby, 2013; Myers, 2007). However, what has not been un- dertaken within the context of jurisprudence is an integrated examina- tion of the scientific research generated over the decades which has systematically sought to test the validity of criminal profiling; that is, examination of this research and the implications that its findings may present, if any, to support criminal profiling or some variant form of behavioural analysis as legally admissible expert witness evidence.

2. Sub-optimal material for scientific validity

As a preliminary step in understanding the methodological features of the researchwhich scientifically tests the validity of criminal profiling some examination is necessary regarding unsuitable forms of material which have been posited for the validity of criminal profiling. Possibly the single largest source of such material are case studies which extol the utility of criminal profiles in resolving criminal investigations (Herndon, 2007). Such case study examples range from popular true crime literature (e.g., Britton, 1997; Douglas & Olshaker, 1995; Ressler & Shachtman, 1997) to case vignettes documented in scholarly articles (e.g., Pinizzotto, 1984).

Despite the intuitive appeal of case examples such accounts are, from a scientific standpoint, constrained from the outset due to a number of factors. The first is the well documented phenomenon of numerous cognitive and perceptual distortions known to operate in the human psyche which are likely to skew the reliability of such ac- counts (e.g. Nickerson, 1998; Roese & Vohs, 2012; Torres, Boccanccini, & Miller, 2006). Secondly, case study examples are also undermined when considered collectively from a systematic methodological perspective. Momentarily setting aside the aforementioned short- commings concerning the reliability of such accounts, all case study examples represent idiosyncratic demonstrations. Unfortunately, empirically measuring the proficiency of any criminal profile in such a context is indeterminately confounded by the methodological inability to discount the particular characteristics that might exist within one case but not another. Consequently, whilst case study examples and research based upon case studies can provide qualitatively rich illustra- tions of a technique in practise (e.g. Yin, 2013) such material does not represent a scientifically robust platform for measuring accuracy

(i.e. validity), as there is no reliablemethod to control and thus ascertain whether any demonstrated proficiency may somehow be related to the particular attributes of the specific cases concerned.

Another source ofmaterial often posited in support for the validity of criminal profiling originates from various surveys and testimonials pertaining to the perceived benefits and thus conceptualized utility of the technique (e.g., Copson, 1995; Jackson, Van Hoppen, & Hebrink, 1993; McCrary & Ramsland, 2003).

At the core of this transmogrification of ‘benefit’ (i.e. utility) being equated with ‘accuracy’ (i.e. validity) is a rationale which has been described as the ‘operational utilitarian argument’ (Kocsis, 2003). The basis of this argument is the inference that criminal profiles would be incapable of assisting police investigations if they were not accurate. Consequently, as police agencies continue to use criminal profiles this operational circumstance serves to demonstrate their utility—ergo validity. Simply put, the continued use of criminal profiles by police investigators indirectly demonstrates via inference their validity.2

Unfortunately, the proverbial Achilles’ heel to this argument is not its rationale per se but rather the metric upon which it is based. That is, the aforementioned perceptual and cognitive distortions surround- ing the reliability of case study accounts are again a prominent factor in reliably gauging theperceivedbenefits derived from criminal profiles. On this issue a number of experiments have demonstrated the tangible manifestation of perceptual distortions when the utility of criminal profiles are considered and thus in turn interpreted as proxy measures for validity (e.g. Kocsis, 2013; Torres et al., 2006). As a consequence, the construct of utility is indeed an important consideration when appraising the overall merits of criminal profiling as a viable investiga- tive aid. However, it cannot also robustly act as a proxy for the validity of the technique.

Another source of material attesting to the validity of criminal profiling is the claim that criminal profiles as developed by the United States Federal Bureau of Investigation (FBI) possess a 75%–80% accuracy ratio. Within the literature surrounding the topic of criminal profiling this claim has achieved veritable folklore status with one of its earliest citations found in Pinizzotto (1984). The dilemma with this statistic is its apparent origin in an unpublished FBI internal report not available to the public (i.e. Institutional Research and Development Unit, 1981). Accordingly, this circumstance brings into question the methodology and basis upon which this statistic is derived as both of these factors are unknown. As a consequence, the worth of this statistic is the source of trepidation within the traditional conventions of both science and law.3 In this latter context the judiciary in one case noted:

“…we find that the FBI’s study revealing a seventy-five to eighty percent accuracy rate for crime scene analysis lacks sufficient trust- worthiness to constitute evidence of this technique’s reliability….In this case, there is no testimony regarding how the FBI determined the accuracy of this analysis.”State v. Stevens (2002)

Finally, there have been suggestions that the validity of criminal profiling could be gauged by indexing the use of the technique against crime statistics to establish whether any demonstrable benefit can

 

 

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be observed (Dern, Dern, Horn & Horn, 2009; Kocsis, 2015). The ratio- nale being that to effect an improvement in the rate of solved crimes the technique must presumably be valid. Unfortunately, such an ap- proach cannot be relied upon as scientifically robust due to two factors. First, this once again represents another unsatisfactory transmogrifica- tion of constructs in terms of ‘utility’ being used as a proxy for ‘accuracy’. In this particular circumstance the principles of scientific parsimony challenge such amethodologically indirect and thus nebulous approach to measurement (Ariew, 1976; Baker, 2004; Elliott, 1981). This factor highlights a second conundrum which is that such an approach is not capable of being empirically controlled to sufficiently establish a causa- tive basis between the individualized use of the technique and any indexed crime statistics.4 That is, in effect this notion represents an at- tempt to juxtapose a macro-level criminological phenomenon as evi- dence for the validity of a technique as performed on a micro- (i.e. individualized) forensic level.5

3. The profiler validity research

To optimally assess the validity of criminal profiling within the doctrines of scientific empiricism ideally entails the measurement of its accuracy via studies that utilize pure (i.e. fully controlled) experi- mental research designs (e.g., Jefferys & Berger, 1991; Kirk, 2013; Popper, 1992). Due to legalities and ethical principles pure experimen- talmethodology is simply not feasible.6 However, a close approximation of such methodological procedures can nonetheless be achieved via the use of quasi-experimental designs. In this context, the first published experiment to robustly seek to assess the validity of criminal profiling via such procedures features as a sub-component of the research under- taken by Pinizzotto and Finkel (1990).

The first step in Pinizzotto and Finkel’s (1990) experiment involved obtaining police casematerials pertaining to a previously solvedmurder and sexual assault case. These materials were summarized into individual case packages which documented the information police investigators had during the course of their investigation up until the identification and apprehension of the respective offenders. Thus, these case packages ostensibly simulated the circumstances of the police investigations (minus any information pertaining to the identity of the respective offenders) at a point in timewhereby a criminal profile could have been obtained to assist the investigation. Attached to these case packages was also a multiple-choice questionnaire which was designed to record responses about the offence and probable offenders. That is, Pinizzotto and Finkel also developed a series of multiple- choice questions (i.e. a questionnaire) which would systematically record each participant’s responses concerning their predictions of the offender and the crime. As both the murder and sexual assault cases had been previously solved the identity of the respective offenders were known to Pinizzotto and Finkel. Accordingly, a set of model

4 An example of this phenomenon was the concept of zero tolerance policing. Whilst crime reduction coincided with the implementation of the policy, the recorded reduction was not able to be causatively attributable to the policy over a host of other potential var- iables (Innes, 2002).

5 Ironically, the admissibility of expert witness evidence provides a good platform for il- lustrating the untenable nature of this proposition. For example, in providing testimony about exhibited behaviours surrounding a specific murder an expert witness will not be able to substantiate the validity of their analysis of the crime scene (for example, multiple shallow pre-mortem stab wounds suggests sadism) based upon the indexation of generic macro-level crime statistics. That is, themere existence of any incremental statistical corre- lation between the number of solved murder cases in a particular region and the use of criminal profiling does not necessarily denote that the aforementioned interpretation of crime scene stab wounds by the individual expert witness is correct.

6 For example, a hypothetical study which might be regarded as utilizing a “pure” ex- perimental research design would require the researchers to commit a crime themselves in a designed and thus controlled fashion which could thereafter be incorporated into the methodology of the study.

(i.e. correct) answers to the multiple-choice questions for each ques- tionnaire concerning both the murder and sexual assault case was also developed.

This case package and questionnaire apparatus enabled exactly the same cases (i.e. the murder case and the sexual assault case) to be provided to any number and variety of potential participants for the purpose of studying the case materials and providing their responses in terms of their predictions (i.e. criminal profile) concerning the characteristics of the likely offender and crime. Thereafter, each participant’s responses on the questionnaires could be objectively scored for accuracy via the corresponding set of model answers for ei- ther the murder or sexual assault case. Via this procedure each participant’s accuracy score could be tabulated and dependent upon various experimental conditions, subjected to statistical analysis. As a result the various participants’ performance in terms of their levels of accuracy in profiling the crimes (i.e. correct responses via the multiple-choice questionnaire items) served to provide an objective quantified measurement and thus indication of validity.

With the development of this apparatus Pinizzotto and Finkel (1990) obtained four skill based groups (consisting of six subjects in each) who were respectively classified as ‘trained profilers’, ‘detectives’, ‘psychologists’ and ‘students’. The participants in each of these groups were provided with copies of the murder and sexual assault case packages and instructed to study the respective cases and provide their responses in terms of profiling the crimes via the attached multiple-choice questionnaire. Once all questionnaires had been completed, scored and subjected to statistical analysis Pinizzotto and Finkel found that the accuracy scores of the trained profilers surpassed those of the other three groups in the sexual assault case. However, this same level of proficiency was not observed in the murder case wherein the trained profilers were found to be no better than any of the other three skilled based groups.

The ingenuity of Pinizzotto and Finkel’s (1990) experiment is not simply its originality but its design parameters which serve to counteract the confounding factorswhich surround the aforementioned unsuitable material proposed as evidence for validity in criminal profiling. First, it quantifies objectively the analysed medium (i.e. the undertaken profiling task) in terms of the same crime (i.e. the same murder and sexual assault case) being examined by all subjects in the experiment. This design parameter notably however, deals with the problems associated with measurements (i.e. accuracy scores) poten- tially being attributable to artefacts of differing cases. As previously explained, this is the invalidating factor surrounding the use of testimo- nials and compilations of past cases involving profiling. Secondly, all responses from the participants (in terms of the rendered profiles) are likewise objectively capable of quantification. Consequently, there is little scope for subjective interpretation surroundingwhat, for example, the content of a profile may actually mean. Likewise, there is little opportunity for artefacts to arise around the scope of the obtained profiles as the questions and response options (i.e. which set the parameters of the profile) are the same for all participants.7 These features serve to overcome problems surrounding the basis of the assessed constructs which reflect direct (i.e. micro level)measurements of accuracy and are not tangential constructs which are being adapted to indirectly act as proxies for accuracy. Finally, as Pinizzotto and Finkel’s (1990) research is published the methodology and basis of its

7 Accordingly, the measurement of accuracy in the Pinizzotto and Finkel (1990) exper- iment was a genuinely objective metric purely determined via correspondence with the correct answer for each multiple-choice question contained in the questionnaire. More- over, via these design features the rendered data in terms of the tabulated accuracy scores could be subjected tomultivariate statistical analysis to ascertain the differences (if any) in proficiency and thus indications of validity in criminal profiling of the crimes in a scientific manner.

 

 

10 It should be understood that the central thesis and purpose of the present article is to examine the implications of the previously published research concerning the validity of

Table 1 Accuracy measure.

Group Total accuracy Physical characteristics Cognitive processes Offence behaviours Social history & habits

Profilers (n = 11) 0.82 0.56 0.34 0.34 0.49 Psychologists (n = 36) 0.16 0.50 −0.30 0.33 −0.10 Science students (n = 85) 0.31 0.40 −0.18 0.10 0.37 Specialist detectives (n = 25) −0.43 0.17 −0.37 −0.22 −0.47 General police (n = 85) 0.07 0.19 0.07 −0.08 0.00 Police recruits (n = 50) 0.17 0.22 0.15 −0.26 0.24 Non-police specialist (n = 12) 0.12 0.48 −0.40 −0.23 0.35 Psychics (n = 20) −0.14 −0.38 0.19 0.05 −0.18 Controls (n = 120) −0.36 −0.73 0.15 0.02 −0.28

Statistics reflect converted z scores. Values closest to 1.0 denote level of accuracy. Table adapted from: Kocsis, R. N. (2003). Criminal psychological profiling: Validities and abilities? International Journal of Offender Therapy & Comparative Criminology, 47(2), 126–144. (C) Sage publications.

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findings can be freely consideredwhen requiredwhich in turn assists in satisfying the conventions of independent scrutiny observed in the scientific and legal realms.

Although a very commendable beginning, the experiment by Pinizzotto and Finkel (1990) is not without its limitations however, particularlywhen consideredwithin the context of evidentiary admissi- bility. The first is the small sample pool used in the experiment which, in total, consisted of 24 subjects. Secondly, the participants who comprised the ‘profiler’ group were not representative of individuals who were regarded as ‘expert’ profilers but were instead arguably individuals who possessed a comparatively modest degree of training and experience in the composition of criminal profiles (see Kocsis, 2013). Third, the scope of the questionnaire was relatively modest and consisted of just 17 multiple-choice items in total. Moreover, the analysis of the obtained data only rendered measurements concerning overall accuracy and did not offer insight concerning how any proficiency was accomplished.8

Finally, Pinizzotto and Finkel’s experiment lacked a control condition for a baseline in performance and instead relied on probability equations to gauge inferential statistical differences in performance.

Approximately a decade after Pinizzotto and Finkel (1990) a research programme by Kocsis and colleagues was undertaken that aimed to replicate and build upon Pinizzotto and Finkel’s original exper- iment. These studies likewise developed case packages pertaining to murder and arson cases (instead of a sexual assault) which featured corresponding multiple-choice questionnaires which could be scored via a set of model answers derived from the apprehended offenders. However, cognizant of the aforementioned limitations, a number of improvements were incorporated into these studies. The first of these was the size of the research programme involving numerous, original, data driven experiments wherein the accumulative sample pool of tested subjects featured over 440 participants. Second, the scope of the skill based groups of participants was substantially expanded.9

Additionally, the sampled profilers in the experiments involved senior forensic psychiatrists and psychologistswho had previously undertaken profiling consultancies for police agencies and thus could arguably be regarded as possessing ‘expert’ status concerning their profiling abilities (Kocsis, 2013). The third refinement related to substantial development of the multiple-choice questionnaire. On a simple quantitative level the size, in terms of incorporated questions (and thus requested predictions) was almost doubled, providing for a far more detailed profiling task. Additionally, on a qualitative level the individual questionnaire items were also formulated into differing contextual

8 Thus, whilst Pinizzotto and Finkel (1990) found that the trained profilers surpassed the other groups in accurately predicting the attributes of the offender these results were not formulated in amannerwhichmight provide some insight as to ‘how’ theywere supe- rior. That is, the experiment did not explain where in terms of features of the crime or of- fender this proficiency was being exhibited.

9 In this context a host of different police personnel with differing levels of law enforce- ment experiences aswell as other relevant professional skill based groupswere incorporated.

categories reflecting the differing analytic tasks undertaken and forms of information collectively encompassed by a criminal profile. These categories were entitled ‘physical characteristics’, ‘cognitive processes’, ‘offense behaviors’, and ‘social history and habits’. The final adjustments featured in the studies by Kocsis and colleagues were the incorporation of control participants. Accordingly, these subjects not only acted as contrasting points of comparison for the skill-based groups of partici- pants but also provided a benchmark measurement of what could be achieved in terms of levels of proficiency in profiling the cases from purely guessing the responses and/or reliance upon stereotypical notions of the typical murderer or arsonist.

A full description of the findings from the various individual experi- ments undertaken by Kocsis and colleagues cannot be accommodated within the present article.10 However, these studies have collectively come to be known as the ‘profiler validity research’ and in Kocsis (2003) an omnibus analysis of the data collected over many of these experiments was undertaken. The results of this analysis are summa- rized in Table 1.

The overall findings of this research was that the sampled profilers’ level of proficiency in terms of accurately predicting (i.e. analysing and interpreting) the characteristics of the offenders and features of the crime (in both the murder and arson cases) was superior and surpassed all of the compared skill based and control groups of partici- pants. Thus, this research provided some scientifically-robust evidence demonstrating the validity of criminal profiling (Kocsis, 2013, 2015; Kocsis & Palermo, 2015). Moreover, due to the developments in the incorporated questionnaire, a further break-down of these results was possible and thus yielded measurements of the various analytic tasks inherent in profiling these crimes, thus offering insight into how the profilers were able to achieve their overall level of proficiency.

4. The evidentiary case law

A detailed examination of the expansive area of jurisprudence concerning the admissibility of expert witness evidence is not feasible within the context of the present article. However, by way of synopsis the courts have it appears, through the generation of case law, explored

criminal profilingwith the evolving (predominantly North American) case law pertaining to the admissibility of expert witness evidence. Accordingly, the scope of the present arti- cle is not capable of providing anything other than a brief synopsis of the existing research, nor is it the purpose of this article to provide extensive exposition of same. As already in- dicated, the key purpose of the present article is to consider the pre-existing research find- ings within the context of jurisprudence and is not intended to be a comprehensive presentation of this previously peer-reviewed and published scientific research. Accord- ingly, readers should refer to each of the original research publications for more detailed description of the overall methodology and modes of statistical analysis employed along with the findings yielded.

 

 

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numerous concepts pertaining to the admissibility of expert evidence. Such considerations have been chronicled overmanydecades andwith- in the framework of United States11 case law and legislation principles such as general acceptance (as first noted in Frye v. United States) as well as the evolution of the Federal Rules of Evidence (and benchmark cases such as Daubert v. Merrell Dow Pharmaceuticals, General Electric v. Joiner and Kumho Tyre Company v. Carmichael) have explored the

11 At the outset, it should be noted that the scope of the present article is not capable of providing an exhaustive analysis of the legal principles and nuances inherent to every ju- risdiction throughout the world. Accordingly, only an overview of key issues is examined herein concerning the implications of the profiler validity research to the admissibility of expert witness evidence within the United Kingdom (in acronym ‘UK’). In contrast to the U.S. legal system and its development of principles for assessing the sci- entific reliability (and thus admissibility) of expert witness evidence the approach adopted by various jurisdictions within the UK (primarily England and Wales) has been described as one of “benevolent acquiescence” (Freckelton, 2014, p.227).With this inmind, the dominant case which has guided judicial reasoning and judgements for decades was that of R v Turner which established that the admissibility of expert witness evidence should be determined via a test of ‘common knowledge and experience’. The fundamental basis to this approach stems from foundational principles determined much earlier in the matter of Folkes v Chadd. In this seminal case it was established that the admissibility of expert witness evidence should be evaluated on the basis of whether the evidence pro- vides the court with “information that is likely to be outside the common knowledge and experience of the jury” (Freckelton, 2014, p.227). The overall application of these concepts by the UK judiciary has generally been to the effect that any form of expert witness evi- dence of a psychiatric or psychological nature which did not specifically pertain to some formof ‘mental abnormality’ (e.g.mental disorders, handicaps or automatism)was consid- ered to be within the scope of ‘common knowledge and experience’ and therefore not admitted. This line of reasoning characterized judicial determinations within UK courts for decades until the comparatively recent matter of R v Sally Loraine Emery. In this leading case it was determined that whilst the expert witness evidence was not strictly confined to mental abnormality, it was nonetheless determined to be of such complexity and sophistication to be regarded as sufficiently beyond the conceivable scope of common knowledge and experience and on this basis therefore its admissibilitywas justified. The Emery casemarks a definitive turning point in contemporary legal reasoning within the UK concerning the admissibility of expertwitness evidence of a psychiatric or psychological nature. Following the Emery case judicial decisions within the UK have exhibited increasing latitude in allowing the admission of expertwitness evidence of a psychiatric or psychological nature which is not within the strict purview of mental abnormality. In a broader context one casewhich holds particular relevance to the potential admission of criminal profiling (or more specifically the subcomponent of analysing crime scene be- haviours) arises out of R v Robb. In this matter psychological expert witness evidence was admitted by the court which was based upon a corpus of scientific research pertaining to people’s capabilities to proficiently recognize voices. Moreover, the expert witness evi- dence was formulated upon the findings of various studies which specifically tested and thus scrutinized various participants’ capabilities to accurately recognize differing voices. A significant parameter to these studies was the incorporated methodology which ex- plored via various points of comparison whether the participants’ capabilities to profi- ciently differentiate and thus recognize differing voices was better than chance. The researchmethodologywhich underpins the expert witness evidence used in R v Robb parallels that of the profiler validity research. Both the voice recognition research and the profiler validity research by Kocsis (2003) incorporate extensive use of various control groups. In the profiler validity research participants were used to gauge the degree of pro- filing proficiency that could be achieved via attributes such as common knowledge, guess- work and/or reliance on social stereotypical notions ofwhatmight characterize the typical offender for the respective examined crimes. Significantly, these control groups not only provided a baseline measurement for these attributes but also represented points of com- parisonwhereby the relative performance of the various other skill based groups could al- so be gauged. When these similar design parameters and the findings of the profiler validity research are collectively taken into account within the legal framework outlined by Folkes v Chadd, R v Turner and, in particular R v Robb, there is scope to argue the feasible admissi- bility of criminal profiling as well. That is, it can be first submitted that criminal profiling reflects another form of psychiatric/psychological evidence which is not necessarily with- in the area of mental abnormality. However, akin to the factors and legal principles established within R v Robb, criminal profiling features a demonstrable complexity in that it is beyond the purview of common knowledge and experience. That is, the validity re- search demonstrates the capabilities of profilers to accurately analyse crime scenes (only this discrete form of analysis would conceivably be viewed as possessing sufficient proba- tive value) and their level of proficiency surpasses that of the numerous control groups. Accordingly, akin to the factors and reasoning encountered within R v Robb, the profiler validity research forms a basis for such analysis to be constituted as somethingof sufficient complexity which is beyond common public knowledge and experience which, in turn, can be considered of assistance to a court and on this basis argued as a potentially admis- sible form of expert witness evidence.

U.S. Courts’ task of evaluating the admissibility of expert evidence (Faigman & Monahan, 2009). The process of this evaluation involves consideration of the submitted evidence against various established indicia including a recognized methodology that has been subject to peer-review publication and whether the evidence is falsifiable with error rates and the standards of control (Giannelli, 2006). However, as noted by various authorities (e.g., Faigman & Monahan, 2009; Gilstrap v State (1994); Myers, 2007; Redmayne, 2001; Simmons v State, (2000); State v Armstrong (1991)) the arguable sine qua non amongst these indicia is the ‘reliability’ of the tendered evidence.

Within this framework the legal principles specific to the evidentiary admissibility of criminal profiling (or any variant form of behavioural analysis) can be viewed as comprising broadly two dimensions. The first concerns the more foundational issue of the legal standard by which such evidence is evaluated whilst the second pertains to the actual substance of the evidence. Whilst distinct from each other these two dimensions must both be satisfied for admissibility and thus, metaphorically, can be thought of as reflecting the alternate sides of a coin. The principles to both dimensions are outlined below.

4.1. The legal standard

The seminal cases in United States case law demarcating the legal standard bywhich criminal profiling or any variant form of behavioural analysis may be admitted as expert witness evidence stem from State v Fortin I and State v Fortin II (Bosco et al., 2010).12 In brief the Fortin cases considered the submission of various forms of behavioural analysis including the examination of commonalities exhibited in two separate crime scenes that served as the basis for determining whether the offences were perpetrated by the same offender. This evidence was tendered by the prosecution and characterized as a form of ‘specialized knowledge’ derived from the witness’s years of experience in investigating and examining thousands of cases pertaining to violent crimes of a similar nature. The defence opposed the admission of this evidence on various grounds including inter alia that the ‘reliability’ of the proffered expert evidence had not been established. Confronted by these opposing positions the court reasoned that if other disciplines that feature investigative applications of their techniques could develop vast databases which empirically validated their practises then this ‘behavioural analysis’ (irrespective of the assigned label) of crime scenes should be no exception and thus likewise subjected to scrutiny analogous to that of any other form of ‘science’. On this matter the court noted:

“…this analysis is not based on science, but based on his [i.e. the expert witnesse’s] training and experience. While not based on sci- ence in the technical sense, his linkage analysis methodology is cer- tainly founded in the area of behavioral science. We conclude that the same detailed analysis regarding the admission of scientific evidence is applicable and necessary…[emphasis added]. State v. Fortin (I) (2000)

12 Prior to the Fortin caseswhenever such evidence had been admitted it occurredwhen at least one of the following circumstances had arguably occurred. The first was that the tendered evidencewas examined only via the doctrine of ‘General Acceptance’ and thus le- gal reasoning derived from the earlier Frye test (e.g., Pennell v State (1991)). The second circumstance arose when the tendered evidence was characterized and in turn evaluated by the Courts as constituting a form of ‘specialized knowledge’ and thus not as a type of ‘sci- entific’ evidence (e.g., Simmons v State (2000);United States v Meeks (1992)). The third cir- cumstance occurred when, as argued by various legal scholars (e.g., Fradella, Fogarty, & O’Neil, 2002;George, 2008;Myers, 2007; Nance, 2003; Risineger& Loop, 2002) the presid- ing court failed to adequately examine the reliability of the tendered evidence (e.g., State of Louisiana v. Code, 1993; State v Russell (1994)). In many respects the concepts that emerge from State v Fortin I & II appear to be a form of redress for these latter two circum- stances wherein higher courts have clearly demarcated both the standard by which such evidencemust be assessed (in terms of its legal characterization) and suggested amethod by which such an evaluation may be appropriately undertaken.

 

 

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This reasoning was elaborated upon in the subsequent appeal decision wherein it was noted that:

“Surely if thousands of murder cases and hundreds of tests performed on bodily fluids can be tabulated in a database, the basic information for a database in this case can be compiled as well.” State v Fortin II (2004, p. 590)

With this rationale the court in Fortin (I) admitted the expert witness evidence on the proviso that the prosecution subsequently provide the defence with a database which detailed the past cases that were claimed to substantiate the witness’s expertise. This stipulation was intended to afford the defence an opportunity to undertake a proper cross-examination of the expert witness’s testimony and thus facilitate an assessment of the reliability of the evidence. That is, the defence could examine the expert witness’s testimony relative to the supplied database of past cases which formed the methodological basis of thewitness’s analysis and contentions. Unfortunately, a database of past cases that might substantiate the contentions of the expert wit- ness was not supplied and thereafter the defence argued on appeal that the basis (i.e. reliability) of the expert witness testimony had not been satisfactorily established and therefore should not have been admitted. This argumentwas accepted by the appeal court,which stated:

“We cannot agree with the trial court that [name withheld] reference to his experience, training, and education was a substitute for a database of cases or that the failure to provide such case information only went to the weight to be given to his opinion, rather than its admissibility. [Name withheld] testimony, although presented as the application of criminal investigative analysis techniques, was couched in the aura of science, more particularly, behavioral science. State v. Fortin II (2004, p.586)

The legal reasoning of the Fortin cases highlight a simple yet effective means whereby any form of behavioural analysis, irrespective of its label or characterization13 could bematriculated and thus evaluated in a ‘scien- tific’manner.More importantly however, the Fortin case established, akin to the arguments from numerous legal scholars and commentators (e.g., Bosco et al., 2010; Faigman & Monahan, 2009; Freckelton & Selby, 2013; Myers, 2007; Risineger & Loop, 2002) that the indicia of reliability for evaluating the admissibility of expert witness evidence could no lon- ger be undertaken within any characterized framework of ‘specialized knowledge’ but instead must be demonstrated via the standards incum- bent to all forms of ‘scientific’ evidence.14

4.2. The probative substance

The other dimension and thus side to the metaphorical coin of evidentiary admissibility pertains to the substance of the evidence. With respect to this dimension the case law from the United States and other nations is somewhat congruent. This consensus largely emanates from a fundamental doctrine common to the laws of evidence in most western- ized legal systemswhich require that the probative value of any tendered

13 For example, characterization as a form of specialized knowledge stemming from ipse dixit claims of expertise owing to years of investigative experience. 14 The significance of the Fortin decision and the legal principles it encapsulates for eval- uating the admissibility of criminal profiling as expertwitness evidence is also highlighted via the research undertaken by Gatowski et al. (2001). This study undertook a survey of U.S. State Court judges and amongst its findings concluded that, inter alia, many of the sampled judges did not possess sufficient scientific literacy to adequately perform the ‘gatekeeper’ function envisagedwithin the principles of the Daubert. Moreover, there also appeared to be little consensus amongst the sampled judges concerning the relative im- portance of the differing criteria encompassed under Daubert. In this context, the only dis- cernible commonality in their interpretation of the principles inherent toDaubertwas that ‘General Acceptance’ remained the core criterion upon which assessments of admissibility weremade. In thewake of this research and the aforementioned critical commentary sur- rounding previous decision wherein criminal profiling had been admitted the Fortin case makes amore ratified contribution to jurisprudence in outliningwhat are the requisite pa- rameters by which the admissibility of criminal profiling ought to be assessed.

evidence outweigh any prejudicial impact it may also present (Davis & Follette, 2002; Freckelton & Selby, 2013; Giannelli, 2006).

In light of this doctrine the evaluation of criminal profiling, when presented in its conventional format, appears to be a relatively straight- forward task for superior courts to consider and consistently reject (Myers, 2007). The basis to these rebuffs being that the aforementioned prejudicial impact of the evidence has always been determined to far outweigh the probative value it may offer. Simply put, superior courts have consistently and correctly recognized that the functional basis of criminal profiling is one akin to a probability tool. That is, the technique does not make an assessment of the precise offender but insteadmakes predictions concerning the probable characteristics that the typical offender will most likely possess. Accordingly, even at its hypothetical zenith, wherein all fathomable shortcomings concerning the accuracy of the predicted characteristics are eliminated, criminal profiling can only inform a court about the attributes that the ‘type’ of offender may or may not possess (Risineger & Loop, 2002). What criminal profiling is incapable of validly determining is whether an accused party is the precise individual responsible for the crime being tried before a court due to their correspondence or otherwise with the predicted character- istics. It is this definitive probative standard concerning the actual, as opposed to the typical, which is inherent to Western common law legal systems and to do otherwisewould relegate courts and/or jurors to:

“…decide the facts based on typical and not the actual facts” State v. Thomas (1981, p.521)

In the wake of these consistent rejections by the judiciary what has transpired over time in the developing case law has been the submis- sion of various forms of behavioural analysis which reflect derivations of the analytic processes (i.e. sub-components) collectively encompassed by the term ‘criminal profiling’ (Bosco et al., 2010; Kocsis, 2015). These de- rivative forms of analysis have achieved a chequered degree of success in being considered admissible expert witness evidence. The general ratio- nale underpinning their acceptance appears to primarily stem from the highly curtailed scope of the undertaken analysis as well as similarities they exhibitwith other forms of analysiswhich are already considered ac- ceptable evidence.15 In this context the variant form of behavioural anal- ysis that has enjoyed the greatest degree of success (in terms of being considered admissible evidence particularly within North American case law) is referred to as Crime Scene Analysis (e.g., Commonwealth v DiStefano; Simmons v State; R. v Clark). The apparent reasoning behind this acceptance relates to the heavily truncated parameters of the per- formed analysis in only evaluating specific features (e.g., behaviours) of the crime scene(s) in terms of modus operandi and thus what the crime scene exhibits. The courts have reasoned that such curtailed analysis is relevant, factually probative and analogous to other modes of expert opinion which are routinely admitted into evidence. On this particular point the Canadian judgement of R. v Ranger specifically noted:

“…an expert’s opinion in an arson case that a fire was not accidental but, rather, deliberately set; opinion evidence explaining the significance of blood splatters; a pathologist’s opinion about the likely cause of death or of injuries observed on a deceased victim; an expert’s opinion on how a motor vehicle accident happened. There are many more examples. This kind of evidence assists the trier of fact in understanding WHAT the crime scene shows.” R. v Ranger (2003, p.71).

In contrast, any suppositions beyond the evident features of the crime scene, such as speculation concerning the characteristics of the likely offender or motives for the offence, continue to be disallowed (e.g., Commonwealth of Pennsylvania v. DiStefano (2000); R. v Ranger (2003)).

15 It should be noted that the admissibility of these variants continue to be contested (e.g., Bosco et al., 2010; Grezlak, 1999; Risineger & Loop, 2002; State v. Fortin (II), 2004).

 

 

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As a consequence, when considering the probative substance of criminal profiling in its traditional format the courts have commonly rejected such material noting that:

“[The] use of psychological profiling as an aid to police investigations is one thing, but its use as a means of proof in court is another…” R. v Guilfoyle (2001, p.68).

Thus, in North American case law when considering the probative substance of tendered expert witness evidence a narrow corridor has emerged wherein the courts are prepared to entertain one highly truncated derivation of the broader profiling technique referred to as Crime Scene Analysis. However, the admission of such evidence has always been premised on such analysis not exceeding the probative boundaries of providing assessment of the facts of the crime scene(s) which are specifically the subject of proceedings before the court.

16 Although not explicitly canvassed in the present manuscript it should nonetheless be noted that another important dimension to the profiler validity studies is their publication via scholarly/scientific peer-reviewed journals. Thismode of publicationnot only attests to the merits of the research but is also another key element incumbent to the original prin- ciples espoused in Daubert v.Merrell Dow Pharmaceuticals Inc. (1993) concerning the as- sessment of admissible expert evidence. 17 Irrespective of the methodological rigour of these studies they are, with one notable ex- ception, of little usewhen consideredwithin the forensic context of evidentiary admissibility as the incorporated scales largely assess performance on analytic tasks which in the context of evidentiary admissibility would be excluded on the basis of lacking probative force.

5. Implications to evidentiary admissibility

In considering all of the previously canvassed material two factors, albeit caveats, must be noted. The first concerns the perennial problem that exists between the paradigms inherent to the discipline of law and those of psychiatry and psychology. The incompatibilities in language and concepts between these disciplines has been the topic of substantial discourse over the decades with their attempted integration described as analogous to fitting a square peg into a round hole (Shea, 1996). Accordingly, whilst common terminology can be found amongst these disciplines, their respective meanings can at times be quite disparate. In this context, the concepts conveyed by the term ‘reliability’ in U.S. case law pertaining to the admissibility of expert evidence are not properly embodied in the meaning of ‘reliability’ in the context of scientific research. Instead, the concepts which are the most congruent with the legal notion of ‘reliability’ are actually those encompassed in the methodological principles associated with the term ‘validity’ (Nance, 2003). Accordingly, when considering the legal concept of ‘reliability’ it is actually methodology and research pertaining to the validity of a technique that is arguably the most congruent.

The second caveat is the original objectives of the profiler validity research. That is, the studies were undertaken to evaluate the validity of criminal profilingwithin the framework of its application as an investiga- tive tool (Kocsis, 2013).Themethodological designs of these studies never anticipated or contemplated their relevance beyond the use of criminal profiling as an aid to law enforcement operations. Accordingly, any bear- ing the research may have to forensic issues such as the admissibility of expertwitness evidence are coincidental and as a consequence notwithin the scope of its originally intended purpose. The consequence of this cir- cumstance is that some gaps are apparent in how the research holistically informs our understanding of the issues relevant to legal admissibility and it is these gaps that will be considered in the conclusion.

With these points noted the first step in considering the implications of the profiler validity research begins with its relevance to the legal standard by which expert evidence in the nature of criminal profiling or any variant thereof is typically evaluated by U.S. courts. To briefly recap, the key doctrine governing this issue is found in the Fortin cases where, in essence, it was determined that the required standard by which criminal profiling or any variant technique should be assessed was as a form of ‘scientific evidence’. Thereafter, the court formulated a methodwhereby the submitted evidence could be assessed in amanner consistent with this standard. However, integral to the legal reasoning adopted in the Fortin case is the specific circumstance of the case and in particular the characterization of the expert evidence as a formof ‘spe- cialized knowledge’. That is, the evidence was not presented as a form of scientific evidence which featured a scientific corpus of published peer- reviewed research that might independently attest to its reliability. As the submitted expert evidence neither claimed nor featured a suitable scientific basis, the court devised a way wherein the reliability of the

evidence could nonetheless bematriculated into a form suitable for eval- uation via the required scientific standard. Simply put, the assessment procedure described in the Fortin case was conceived purely to act as a substitute for scientific research that might have otherwise been avail- able to demonstrate the reliability of the tendered expert evidence.

Consequently, the first key implication to evidentiary admissibility arising from the profiler validity research is its very basis. That is, it represents scientifically peer-reviewed and published16 research which examines factors directly pertinent to the reliability of the criminal profiling technique. Thus, the potential evaluation of expert evidence via any cataloguing of past cases (such as that espoused in the Fortin case) is in one context obviated if any tendered expert evi- dence in the nature of criminal profiling is presented in a disciplinary and methodological framework consistent with the design parameters of the profiler validity research.

The second key implication to emerge from the profiler validity research pertains to the legal substance and thus nature of the material courts may permit into evidence. At this juncture the aforementioned boundaries of the profiler validity research come to the fore as the majority of the scales devised in the studies are concernedwithmeasur- ing the accuracy of predicted offender attributes (i.e. the typical as opposed to the actual).17 However, one notable exception is apparent that integrates with the evidentiary case law pertaining to ‘Crime Scene Analysis’. Through no reason other than coincidence the question- naire sub-scale within the profiler validity research labelled as ‘Offense Behaviors’ empirically measures the proficiency of the sampled participant’s ability to correctly (i.e. validly) interpret the exhibited be- haviours in the crime scenes and thus encapsulates the analytic task re- ferred to as ‘Crime Scene Analysis’.

Accordingly, the profiler validity studies not only represent indepen- dent, scientifically-grounded research that satisfies the required legal standard (i.e., scientific evidence) for evidentiary admissibility but also provides an evaluation of the functional task commonly referred to as ‘Crime Scene Analysis’, which is also considered to feature sufficient pro- bative substance for potential admission. Thus, the ‘Offense Behavior’ sub-scale contained in Table 1 provides legal forumswith independent, scientifically-grounded research by which this mode of crime behav- ioural analysis may be argued to be a reliably admissible form of scientific expert witness evidence.

6. Serendipitous connections

In conjunction with the aforementioned implications surrounding evidentiary admissibility, the profiler validity research also features a number of serendipitous connections with other case law and research in the area of criminal profiling. The significance of these connections is particularly remarkable when it is noted that the research did not con- template any ramifications beyond its original sphere in assessing valid- ity within the operational context of law enforcement investigations.

To begin with Woskett, Coyle, and Lincoln (2007) surveyed various legal practitioners’ views concerning the use of criminal profiling. One finding of this research was that if criminal profiling was used in some evidentiary capacity, then the professionals who were considered best placed to offer such expert testimony would either be forensic psychol- ogists or forensic psychiatrists. Although not explicitly stated, the same general sentiment also appears to be conveyed in the judicial reasoning

 

 

21 A significant dimension of irony surrounds this circumstance as, despite thedecades of development concerning the topic of criminal profiling, this serendipitous intersection es- sentially demonstrates what is considered to be the oldest coherent form of the criminal

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found in numerous cases considering the admissibility of criminal profil- ing generally. In the pre-Fortin decision of People v Schmidt (2002) the court reasoned that the evidence provided by a law enforcement officer could be accepted on the basis that it paralleled the evidence which two psychologists had previously provided. In Simmons v State (1999) testi- mony from a law enforcement officer was admitted on the basis that it was considered probative and an acceptable form of ‘specialized knowl- edge’. In addition to this evidence, testimony froma forensic psychologist was also admitted. However, the admission of the psychologist’s evi- dencewas on the basis that it constituted acceptable ‘scientific’ evidence. Although the psychologist’s evidence did focus upon issues surrounding the offender’s mental state, the evidence was, in part, also based upon analysis of the exhibited crime scene behaviours. Whilst this evidence was derived from the psychologist’s analysis of the crime scene behav- iours it was not subject to substantial disputation or judicial deliberation upon appeal unlike the testimony of the law enforcement officer.

These examples collectively appear to reflect a tacit consensus amongst some in the legal community that the disciplinary foundations considered best placed to provide expert witness evidence in the nature of criminal profiling will stem from suitably qualified forensic psychia- trists or forensic psychologists.18 With this in mind it is therefore signif- icant to note that one of the most consistent findings to emerge across the various profiler validity experiments was the proficient performance of the profilers (sampled from senior forensic psychiatrists/forensic psy- chologists), followed by (generalist) psychologists in comparison to all other groups (Kocsis, 2003, 2013). Thus, the profiler validity studies in- dependently provide congruent research evidence supportive of the legal community’s seeming predilection concerning the professional basis of potential expert witnesses in the area of criminal profiling.

Another significant connection arising from the profiler validity research pertains to arguments against the admission of criminal profil- ing as expert witness evidence. In this context, George (2008) raises a number of ardent criticisms for the entire abolition of criminal profiling or any derivative in legal forums.19 In summary, George (2008) argues that a number of troubling inequities exist in the availability of indepen- dent expert witnesses who may be prepared to not only act on the behalf of the prosecution but also for the defence.20 In view of these

18 Whilst thismay seem self-evident in thewake of the historical lineage of criminal profil- ing (e.g., Brussel, 1968; Langer, 1972; Shoenfeld, 1936) scientifically grounded examinations of properly qualified expertswho legitimately possess the full gamut of requisite skills for the proficient (i.e. accurate) practise of the technique has been sorely lacking in the scholarly peer-reviewed literature (e.g., Kocsis, 2013, 2015). The significance of this point is highlight- ed when it is kept in mind that members of the law enforcement community acknowledge that their original endeavours in developing criminal profiling were inspired and reflect em- ulations of the disciplinary paradigms and practises commonly rooted in the mental health sciences (e.g., DeNevi & Campbell, 2003; Ressler & Shachtman, 1992). As one example, the development of the Crime Classification Manual by the FBI Behavioral Sciences Unit is collo- quially referred to as the ‘DSM’ for crimes (Douglas et al., 1992). Similarly, with respect to the actual practise of profiling Douglas et al. (1986, p. 405) state that: “The process used by an investigative profiler in developing a criminal profile is quite similar to that used by clini- cians to make a diagnosis and treatment plan: data are collected and assessed, the situation reconstructed, hypotheses formulated, a profile developed and tested and the results report- ed back.” 19 It is argued by George (2008) that implacable biases, undue influence and conflicts of interest pervade the pool of available expertwitnesseswho predominantly originate from law enforcement and thus “disciplines that are created for the sole purpose of investigat- ing or prosecuting crimes” (George, 2008, p. 221). 20 The basis to George’s (2008) concerns is notwithout foundationwhen it is accepted that they essentially reflect apermutationofmore fundamental problems surrounding the admis- sibility of expert evidence and in particular the legal principle of General Acceptance. In this broader framework Faigman and Monahan (2009) indicate that most forms of expert evi- dence which are sourced fromwitnesses who originate from the law enforcement commu- nity will be prone to such troubles and note that: “…the use of widespread or general acceptance as a criterion of validity depends on the quality of the field fromwhich the find- ings come. Unlike the testing and error-rate factors, general acceptance is merely a proxy for validity and is only as good as those doing the accepting and rejecting. The biggest danger as- sociatedwith this factor from the law’s standpoint is that consensusmight replace critical as- sessment. This has largely occurred, for example, in the forensic specialities, such as bitemark and handwriting identification analysis, where themain community involved is law enforce- ment and dissent is strongly frowned upon.” Faigman and Monahan (2009, p.14).

issues the implications arising out of the profiler validity research provide an avenue to potentially counteract the criticisms discussed by George (2008). That is, the profiler validity experiments provide sup- port for the use of suitably qualified mental health professionals and thus could feasibly expand the pool of potential expert witnesses who are not derived from the lawenforcement community, thus neutralizing the concerns raised by George (2008).

A third notable connection arising from the profiler validity research again stems from criticisms concerning the forensic use of criminal pro- filing. In this context, Ebiskike (2008) argues that another factor poten- tially obstructing the evidentiary admissibility of criminal profiling is the conceptually fragmented nature of thefield. That is, there exist sever- al theoretically diverse approaches to criminal profiling that collectively feature little consensus and numerous strident debates (Kocsis, 2013, 2015). In essence Ebiskike (2008) highlights that when subjected to suf- ficient critical examination criminal profiling or any derivative technique may not even satisfy the tenets incumbent toGeneral Acceptance (i.e. Frye v United States (1923)) for it to be admissible expert evidence.

Once again, the profiler validity research holds a serendipitous connection with these arguments. As already explained, the validity research independently substantiates the apparent preconception found within the legal community concerning the disciplinary profes- sion from which suitable experts may originate. However, the logical extension of these same concepts also provides a coherent disciplinary basis which can potentially satisfy the parameters of General Acceptance and thus counteract the arguments raised by Ebiskike (2008). That is, the results demonstrating proficient profiling capabilities in the various pro- filer validity studies originate from a sample pool which is collectively characterized by qualified mental health professionals.21 Simply put, the sampledprofiler participants exhibit a coherent, commonly-accepted disciplinary foundation to their proficiency sourced in all likelihood in the regulated educational and training parameters they share in order to formally practise as either a psychologist or psychiatrist.22 Thus, the

profiling technique referred to as ‘Diagnostic Evaluations’wherein qualified mental health practitioners rely upon their clinical training for the purpose of interpreting and profiling crimes (e.g.,Wilson et al., 1997). 22 Within this connection are a number of ancillary points. The first pertains to the legal notion of ‘usefulness’ to evidentiary admissibility and thus the benefits any submitted evi- dence may supply “to furnish the Court with …information which is likely to be outside the experience and knowledge of a judge or jury” (Turner, 1975). The implications stem- ming from profiler validity research incorporates two facets of this issue. One is that the studies not only feature comparativemeasurements of performance across the various skill based groups but also feature extensiveuse of controls. These variousmeasurements collec- tively serve to illustrate that the proficiency of the profilers is superior and thus can be con- sidered to be useful as they have been empirically demonstrated to be beyond the repertoire of skills and knowledge of typical courtroomparticipants such as jurors. The oth- er facet is the recognized generic status of mental health professionals such as psychiatrists andpsychologistswho via the established basis of their qualifications are considered to pos- sess suitable expertisewithin this domainwhich can traditionally satisfy the evidentiary lit- mus test of usefulness for potential admissibility. A second ancillary point is the established impartiality of the qualification of individuals whomay operate as psychologists or psychi- atrists. That is, westernized nations feature independent government controlled regulatory authorities which have legislated oversight for the educational regimentation and supervi- sion of individuals who can lawfully operate in these professions. These authorities do not possess any vested interest in the development or practise of the criminal profiling tech- nique. This circumstance is significant as it is in contrast to a number of societies and asso- ciations that have arisenwhich promote accreditation in criminal profiling and thusmay be erroneously perceived as a governing authority of individuals whomay engage in the tech- nique. Within the context of legal admissibility it has been suggested that such guilds may suffer fromvarious conflicts of interest aswell as a lack of independent validationof thepro- moted accreditation of their affiliates in comparison to other professionals who may not hold such memberships and advocate an alternative conceptual approach to profiling (e.g., George, 2008). These concerns are largely obviated within the divested environment of professional regulation for psychologists or psychiatrists. That is, the regulatory authori- ties for psychiatry and psychology simply govern the core educational and training for these professions and it is these fundamental skills which underlie the proficient profiling empir- ically demonstrated thus far in the various profiler validity studies in the performance of both the sampled profilers and psychologists.

 

 

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profiler validity research potentially also provides a solution to allay the concerns raised by Ebiskike (2008).

24 It is important to note that the results of the profiler validity studies are not amenable to conversion to alternative statistics such as percentageswherein accuracy ratioswith er- ror margins could be potentially discerned. Some erroneous interpretations of these re- search findings have been previously undertaken which are invalid representations of the research data as they fail to recognize and thus account for the numerous individual items in the questionnaires which are not equally weighted (Kocsis, 2013). Thus, the rel- ative probabilities aswell as conceptual difficulty of items can vary considerably. As a sim-

7. Conclusion

This article has sought to provide a succinct analysis of the scientific research examining the validity of criminal profiling in conjunctionwith the extant case lawand legal principles surrounding its potential admis- sibility as expert witness evidence. To this effect, five broad topics were canvassed starting with an explanation of the various types of material which are not sufficiently robust for the purpose of demonstrating validity in criminal profiling. The second section then provided a brief exposition of the scientifically-grounded experiments that do provide support for the validity of criminal profiling. Thereafter, the third section explored the evolution of the case law and thus the legal substance and standards upon which expert witness evidence such as criminal profiling might be admitted. In the wake of this material the fourth topic considered what implications the findings of the profiler validity research might have for evidentiary admissibility. The fifth and final component considered a number of serendipitous connections between the aforementioned material and other issues concerning the practise of criminal profiling. These connections serve to highlight a number of factors pertaining to the qualifications and skill basis of individuals who may be able to offer expert witness evidence concerning the technique.

In presenting this analysis it is important to appreciate that a non- partisan standpoint was adopted in the production of this article. Accordingly, the presented material is neither intended to expressly advocate for the admission of criminal profiling as expert witness evidence in legal proceedings (e.g., Cochran, 1999; Ingram, 1998) nor act as arguments for its prohibition (e.g., George, 2008; Risineger & Loop, 2002). Instead, as indicated at the outset the key objective of this article is to provide a previously unavailable integration of the research into profiler validity and its implications for legal admissibility. Whilst the ultimate finding is supportive of one discrete avenue where- by expert evidence in thenature of criminal profiling (i.e., the analysis of crime scene behaviours)may be admitted, it is important to balance this conclusion with some consideration of the boundaries of the research and thus its potential limitations for evidentiary admissibility.

First, it should be noted that whilst there exists scientifically- grounded research which has found evidence supporting the validity of criminal profiling, the production of such studies have occurred at an extraordinarily tardy rate (Kocsis, 2013). Consequently, further research in this vein is still warranted and caution should be exercised when considering the extent to which the research can be externalized into practise (Kocsis, 2015). Secondly, in the context of the existing research one key limitation of the profiler validity research is its inability to provide some indication of the likely error rates inherent to the analysis as conceptualized under the criteria for admissibility in Daubert v. Merrell Dow Pharmaceuticals Inc. (1993).23 This circumstance is an artefact of the employed quasi-experimental procedures and argu- ably reflects an acceptable limitation in lieu of the methodological

23 Although the quasi-experimental designs incorporated in the various profiler validity studies do not facilitate error rates as conceivedwithin the evaluative parameters outlined in Daubert this deficit is not necessarily an irreconcilable limitation. For example, the de- cision ofUnited States v Plaza (2002) illustrates that USCourtsmay entertain the admission of expert witness evidence evenwhen such evidencemay not be premised on a falsifiable theory provided it nonetheless possesses general acceptance within the sphere of its pro- fessional community. As indicated at the outset of this manuscript and Endnote (1) the technique and practises collectively and colloquially referred to as criminal profiling have achieved considerable professional recognition in most countries throughout the world and the topic is now considered to reflect another component within the disciplinary pa- rameters of mainstream forensic psychology (Kapardis, 2014). Accordingly, this contem- porary professional recognition in conjunction with principles highlighted by US v Plaza provides further scope in potentially considering the admissibility of criminal profiling (more specifically crime scene analysis) notwithstanding the absence of such error rates.

strengths the research design provides when empirically assessing the validity of criminal profiling (Kocsis, 2013, 2015). As previously mentioned, pure experimental designs which test profiling accuracy (i.e. validity) are not feasible. Additionally, the equally weighted quantification of questionnaire items which would act as the basis for measurement would also represent a logistically prohibitive dimension.24

With these parameters in mind it is important to conclude by highlighting three further issues. Firstly, the presented analysis only pertains to the currently available research evidence that scientifically seeks to investigate the validity of criminal profiling. In this respect, the findings concerning the sampled profilers and arguments concerning their legal admissibility pertain to forensic mental health professionals such as forensic psychiatrists and forensic psychologists only. However, this aspect of the undertaken research should not be interpreted as a basis for discounting the potential capabilities of other professionals who do not possess such formal disciplinary qualifica- tions, training and regulation. The formulation of the research is only contributory in nature and provides some evidence to substantiate the capabilities of the sampled participants to proficiently engage in the task of criminal profiling. Accordingly, the parameters of the research do not imply that the absence of such attributes will necessarily or automatically equate with a lack of proficiency.25

Flowing from this point, the second and third issues pertain to what can be conceived as boundaries to any expert witness and testimony provided. In this context, it is important to first draw attention to not only the qualifications but also the particular area of specialization that any potential expert witness may possess. Whilst this article supports one potential avenue for the admission of expert witness evidence, this does not serve to universally justify the admissibility of all qualified mental health professionals or even all qualified forensic psychiatrists and forensic psychologists. One notable finding to emerge from the original profiler validity research was a high degree of statisti- cal variance amongst the capabilities of the sampled profilers (Kocsis, 2003). Simply put, the capabilities of some ‘profilers’ were far better than others. Accordingly, it is important to ensure that the qualifications and skill basis of any potential witness is indeed borne out in their par- ticular area of specialization and practise.

The final boundary issue concerns a warning to judicial members presiding over any case aswell as opposing counsel to exercise vigilance when such evidence is sought to be submitted. Once again, whilst this article provides support for a way in which such evidence may be admitted, it is imperative that the specific content of any proffered testimony does not extend beyond the scope of the demonstrable scien- tific evidence. In reviewing the case law surrounding the evidentiary

ple illustration of these issues responses to the questionnaire item seeking a prediction of an offender’s gender can only feasibly feature two options. In contrast, predictions of an offender’s religious belief featured nine possible responses. Consequently, future research seeking to investigate the concept of error-rateswill need to explore amethodological de- sign which maintains the methodological advantages of the present research, features a robust protocol that can validly feature equal weighting to the presented response items while simultaneously not representing a logistically prohibitive task to administer. This last point is a significant factor in accounting for the limited production of research scien- tifically examining profiler validity to date (see Kocsis, 2015). 25 Accordingly, the paucity of analogous research examining other skilled based profes- sionals should not necessarily be construed as a basis to dismiss the potential merits of other professionals. The current circumstance should be understood as scientific evidence in support of the proficiency of individuals with forensic psychiatric/psychological qualifi- cations to engage in the task of criminal profiling. The capabilities of other skilled based professionals operating in this same capacity are thus far undemonstrated and the reader should appreciate the conceptual distinctions between undemonstrated versus disproven.

 

 

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admissibility of criminal profiling it is apparent that there exists at times an almost irresistible tendency for expert witnesses to stray into error by providing testimony beyond the scope of their remit (e.g., R. v Hillier (2003)). If expert witness evidence of this nature is admitted based upon the findings and arguments analogous to that outlined in this article, then it is important to ensure that the scope of such admis- sion does not exceed the boundaries of what the available research can demonstrate and that it also reflects a largely-accepted degree of reasonableness that is shared by all, including judicial members.

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