Forensic Psychology: Criminal Profilers in the Courtroom Adam Y. Zentner, J.D. January 2011
This article summarizes the field of forensic psychology and the sub-specialty of criminal profiling in the United States and the United Kingdom, and discusses the admissibility of expert testimony by criminal profilers in Am erican courts.
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"There is all the difference in the world between evidence proving that the accused is a bad man and evi1 dence proving that he is the [bad] man." -Lord Sumner I.
Introduction
In recent years, the field of forensic psychology has experienced massive growth in the United States and abroad. This continued growth is pushing academic institutions and the legal field to expand their usage of these practitioners. This article focuses on a specialized practice area within forensic psychology: criminal profiling (aka offender profiling). As forensic psychology burgeons with new graduates, the availability of criminal profiler testimony will likely also increase. This would naturally lead to increasingly frequent instances of judges encountering and evaluating whether such testimony may be admitted in evidence. This article will (1) summarize the history and growth in forensic psychology and criminal profiling; and (2) analyze whether the courtroom testimony of the criminal profiler should be admissible in evidence. This article will conclude that criminal profiles are not admissible, but the testimony of a criminal profiler might be admissible so long as it is carefully limited to reliable psychological theories. theories . Distinctions between psychology and psychiatry are less important to the issues at hand, so both fields will henceforth be referred to without distinction. Although the field of forensic psychology requires reference on national and international levels, this article will attempt to narrow the legal inquiry to Kansas jurisprudence. Other pervasive legal standards will also be discussed. II.
What is Forensic Psychology?
Simply stated, forensic psychology is a field of psychology that operates within the legal system. Forensic psychologists provide professional psychological expertise to the judiciary, by working as clinical forensic examiners, correctional or forensic mental health consultants, researchers who testify about the 2
reliability of a scientific theory or technique applied to a psycholegal issue, or trial consultants. This list is
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not exhaustive, but should provide some guidance. At the behest of judges, prosecutors, or defense attorneys during various stages of litigation, forensic psychologists are often asked to perform evaluations such 3
as mental health diagnoses.
Forensic psychology has matured into an increasingly widespread and accepted accepted field of study. An article published by the American Psychological Association (APA) explains that there has been “rapid growth over the past 30 years” within the field of forensic psychology, and “opportunities for postdoctoral 4
fellowships, continuing education, and respecialization have become increasingly more available.” For in5
stance, in 1973 the University of Nebraska College of Law developed the first law-psychology joint-degree graduate program in the United States, wherein “*s+tudents may obtain a J.D. and either a Ph.D. or an M.A. 6
in Psychology.” In 2001, the APA approved forensic psychology as an applied area of psychological specia-
lization.
7
Today, forensic psychology is “the fastest growing speciality *sic+ within the discipline of psycholo8
gy.” This upsurge in forensic psychology is not isolated to the United United States. The field thrives in the United 9
Kingdom (U.K.), mainland Europe, and Australia. In a newly published text by the British Psychological Society, the authors noted: The past decade has been one of boom in forensic psychological practice with record numbers of posts in health and criminal justice . . . . [T]here has been a growth of staffing in the Higher Education sector to accommodate course growth. There has also been a concomitant expansion in the 10 breadth and depth of academic work. Well-known mainstream writers have published articles in widely circulated periodicals about the intriguing 11
uses of forensic psychologists within the legal community.
Dr. John Horgan, forensic psychologist and
professor in the Department of Applied Psychology at the University College Cork, Ireland, attributes this trend to mass media. Horgan explained:
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Since the mid-1990s, forensic psychology has enjoyed an exponential rise in popularity . . . . [T]he primary driving force behind student and public interest has been the plethora of popular crime fiction since that period, especially in film and television. Hollywood blockbusters such as ‘Silence of the Lambs,’ and more recently ‘Red Dragon’ have successfully whetted the appetites of would-be investigators drawn to psychology with expectations of becoming the next Will Graham or Clarice 12 Starling. The protagonists in many of these novels and films are based on real-world forensic psychologists who usually specialize as criminal profilers. For example, FBI profiler John Douglas, who pursued the infamous BTK Killer (Bind Torture Kill), was allegedly the model for “Agent Jack Crawford ” in Thomas Harris’ novel 13
“The Silence of the Lambs.”
14
One of the better-known fictional characters is Sir Arthur Conan Doyle’s “Sherlock Holmes.”
Out-
fitted with his iconic hat and curved pipe, Sherlock Holmes voiced a warning: “It is a capital mistake to theorize before you have all the evidence. It biases the judgment.”
15
Unfortunately, clever criminals may
not leave behind very much evidence to be judged. The battle of wits between the criminal profiler and his quarry has certainly allured the public interest. While public interest in forensic psychology may be thriving, the courts react more hesitantly toward this relatively new field. Forensic psychologists have fought a long and difficult battle to be accepted 16
in U.K. courts, but eventually they succeeded. 17
testimony concerning personality traits.
In 1991, the Court of Appeal allowed forensic psychologist
A decade later, forensic psychologists were heard by the House
of Lords for the first time in the case of Donald Pendleton,
18
whose conviction was overturned on the basis
19
of fresh psychological evidence. III.
What is Criminal (or Offender) Profiling?
As a sub-specialty of forensic psychology, criminal profiling involves the use of behavioral data collected from crime scenes and witness accounts to predict likely characteristics of the perpetrator. Their 20
goal is to narrow the scope of an investigator’s search.
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Profilers look for clues such as: geography of the
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crime, weapons, restraints (or lack thereof), domestic and work settings, time of day, sequence of injuries and events, the manner in which injuries or damage is inflicted, any information about the vic tim’s habits 21
and personality, signs of struggle, and autopsy reports.
Next, profilers draft psychosocial composites
based on inferences about the perpetrator’s likely behavioral characteristics exhibited at one or more crime
scenes. scene.
22
23
The underlying assumption is that a perpetrator’s behavior will be consistent from scene to The more crimes a perpetrator commits, the more clues can be gathered to fashion a more accu24
rate profile, thus increasing the likelihood of apprehending a serial criminal or repeat offender.
For instance, one of these keystone successes began in November of 1940, when a series of bombs began appearing and sometimes detonating in Manhattan, New York.
25
Although the perpetrator, later
referred to as the “Mad Bomber”, left handwritten notes and other pieces of evidence at the scenes, he 26
eluded police and continued his crime spree for the next sixteen years.
The long-term failure of police to
catch the bomber led to public outrage. Desperate, detectives approached psychiatrist and former Federal 27
Bureau of Investigation (FBI) spy-hunter Dr. James Brussel.
Dr. Brussel commented about his initial meet-
ing with investigators who were clearly skeptical skeptical towards forensic psychologists. Dr. Brussel wrote, “I’d
seen that look before . . . on the faces of hard, old-line, field-grade officers who were sure this newfangled 28
psychiatry business was all nonsense.”
Nevertheless, Dr. Brussel agreed to help.
After reviewing the evidence, Dr. Brussel gave detectives an eerily specific profile of the perpetrator. Dr. Brussel told police to search for a heavyset, unmarried, middle-aged male of Eastern European descent with an exemplary work record, living with a mother-like figure, and educated but used a stilted 29
word choice.
Then, Dr. Brussel did something that would make him a legend. He added, “When you
catch him—and I have no doubt you will—he’ll be wearing a double-breasted suit . . . . And it will be but30
toned.”
About a month later, police identified a suspect named George Metesky, who matched the
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profile in almost every respect. When police arrived to arrest Metesky at his home during the night, Metesky readily confessed to the crimes but asked for leave to change out of his pajamas before going to the station. The officers granted his request, and when Metesky emerged from his bedroom he was wearing a double-breasted suit . . . buttoned.
31
Dr. Brussel’s and others’ successes eventually prompted the FBI to form the Behavioral Analysis
Unit (BAU), which is probably one of the better known criminal profiling units in the world. have refined the principles created by Dr. James A. Brussel,
33
32
BAU profilers
whom many forensic psychologists credit as
34
the father of criminal profiling.
How a criminal profile is formulated from behavioral data depends on which approach the profiler 35
utilizes.
Some common approaches include: Diagnostic Evaluation; Crime Scene Analysis (known as 36
37
“Crime Action Profiling” in the U.K. ); and Investigative Psychology.
Howard Teten and the FBI’s Behavior
Analysis Unit (BAU) are credited with the development of one approach called Criminal Investigation Analy38
sis, which gained popularity after it aided in the capture of infamous serial killers Ted Bundy and Gary Ridgway.
39
This approach is often used in the United States to profile arsonists, sexual offenders, and sex40
ual homicides.
Techniques and theories unique to each of these approaches will not be discussed herein, but it will suffice this article that the prevailing attitude in the field is that these approaches are experimental, and 41
42
frequently lack authoritative support and empirical validation.
As the Program Manager of the FBI’s
Profiling and Consultation Program, John E. Douglas, explained, “Investigators traditionally have learned
profiling through brainstorming, intuition, and educated guesswork.”
43
Profiles based on intuition and
guesswork will not withstand the prevailing evidentiary standards on expert testimony.
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Profiling in England developed earlier than in America, but British profilers still haven’t seen the 45
inside of a courtroom.
Interestingly, while forensic psychology is increasingly welcomed into English 46
courts, criminal profiles remain barred.
One British commentator surmised that profiling has “never been
admissible in the British legal system as expert evidence, because of definitional problems and disagreements about the scientific knowledge base.”
47
Another possible reason for this view is that many profiles closely resemble “cold reading” techniques used by astrologers and psychics who make numerous vague and un-testable predictions, which no one can prove are either true or false.
48
Some of the suppositions are retrospectively construed as accu-
rate predictions, while inaccurate ones are quickly forgotten.
49
Despite a well-documented history and the
impressive recent developments within criminal profiling, forensic psychologists in general still view profil50
ing as a “largely experimental field.”
Dr. Horgan admonished:
We ought to treat with caution declarations or claims to the validity and successes assumed of current incarnations of profiling. While its immense popularity may be welcome in drawing attention to the work of forensic psychologists more generally, failure to critically consider the practice, extent and accountability of offender profiling (and also the profilers) may have unfortunate 51 repercussions for the broader development of forensic psychology. While the magic of real-world anecdotes may awe the public, many courts are more guarded, especially when asked whether these profiles should be admitted in evidence against a criminal defendant. IV.
Admissibility of a Profiler’s Testimony in the Courtroom
A. Frye and Daubert
From 1923 until 1993, Frye v. United States defined the standard for admitting expert testimony 52
based on scientific evidence.
According to Frye:
The rule is that the opinions of experts or skilled witnesses are admissible in evidence . . . [w]hen the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that 53 particular science, art, or trade to which the question relates are admissible in evidence.
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And: [W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently es54 tablished to have gained general acceptance in the particular field in which it belongs. The above text establishes some key elements in whether expert testimony may be admitted, namely: (1) is the testimony helpful to the trier of fact, and (2) is it based upon scientific principles that are generally 55
accepted as reliable in the field.
An expert’s testimony is usually considered helpful, when a trier of fact is asked to weigh evidence that they do not comprehend. The inverse is also also true. As the Kansas Supreme Court explained, “*w+here the normal experience and qualifications of jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions are not necessary.”
56
The helpfulness standard varies
actamong jurisdictions. For example, an expert’s expert’s opinion in Tennessee must “substantially” assist a f act57
finder, otherwise the expert will be excluded.
In addition to being helpful to a trier of fact, evidence must also be relevant to the issues or facts of the case. Evidence is relevant in Kansas when it “[has] any tendency in reason to prove any material 58
fact.”
Many other states have adopted a form of the Federal Rules of Evidence, which defines relevant
evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the 59
determination of the action more probable or less probable than it would be without the evidence. ”
Re-
levancy is a matter of logic and experience, not a matter of law. Nevertheless, there must be some logical connection between the facts and the inference they are intended to establish.
60
Concerning general acceptance within the field, courts have considered a variety of indicators to evaluate the overall maturity of the particular field and the reliability of techniques or theories used therein. Some common factors include: the availability of formal academic programs for the particular field’s
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ADAM Y. ZENTNER
uniform practice standards and ethics rules;
64
62
63
practitioner certification; peer-reviewed
65
research; standardized terminology; and formal recognition by authoritative organizations within the 66
field.
The Frye Court acknowledged the difficulty in determining whether a practice has become generally
accepted: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the 67 principle must be recognized. As forensic psychology displays most of the benchmarks of a mature, well-established field, there should be 68
little question anymore as to whether the field is generally accepted by the psychological community.
However, courts struggle when evaluating whether criminal profilers are basing their opinions on reliable, generally accepted theories and techniques. Some courts have erroneously qualified criminal profilers as experts, based upon the assumption that the “expert’s” testimony is premised upon “generally accepted” theories and techniques.
69
The risk here is that some profilers may gravitate towards unverified theories
which they presumptuously designate as indisputable fact, which the unwitting jurist may accept.
70
Also,
the area of criminal profiling suffers from a plethora of discordant terminology and acronyms, leading to ambiguity and dissonance among profilers.
71
These issues are the principle barriers preventing criminal
profilers from testifying in court. After Frye was decided in 1923, the “generally accepted” test dominated federal jurisprudence on this issue for the next 70 years, until the rule was superseded in 1993 by Daubert v. Merrell Dow Pharma72
ceuticals, Inc.
Daubert backed away from the restrictive “generally accepted” test and liberalized the use 73
of expert testimony by focusing on “reliability” and results of empirical evidence for both scientific and 74
75
technical evidence.
Thus, “general acceptance” still plays an important role in the inquiry, but is no 76
longer the dispositive factor.
However, Kansas, among other states, refused to adopt the liberal Daubert
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77
78
standard and instead continues following Frye.
Any expert testimony based on unverified or experi-
mental techniques must pass a Frye evaluation, otherwise it will be inadmissible in Kansas courts.
79
1. Frye and Kansas Statute Annotated 60-456(b)
Since Kansas courts still follow Frye, they are more restrictive with experts than courts that follow 80
Daubert .
The party offering the expert testimony has the burden of proving both general acceptance and 81
reliability of the underlying scientific theory upon which the opinion is based.
Any opinion based on a
theory or technique that is still considered new or experimental and has not yet gained general acceptance, 82
will be excluded.
Even if the underlying principles are reliable, the expert’s testimony is excluded if the
principles are not generally accepted in the field. Kansas courts apply Frye to both physical scientific evidence and psychiatric diagnosis.
83
Kansas Statute Annotated (K.S.A.) 60-456(b) applies to expert testimony:
(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the spe84 cial knowledge, skill, experience or training possessed by the witness. As a threshold matter, K.S.A. 60-456(b) is not difficult to hurdle. An expert in a Kansas court court must personally obtain information about the case case before testifying. Presumably, this would bar experts who who are unfamiliar with the facts of the case. 2. Daubert and Federal Rule of Evidence 702 Daubert is the prevailing standard for experts in many state and federal courts.
85
Justice Blackmun
wrote for the Daubert majority, and held: (1) that the Federal Rules of Evidence as amended in 1976 super86
sede the Frye “general acceptance” test, thereby lowering legal barriers for expert testimony; and (2) that
the trial judge has the task of ensuring that expert testimony is reliably founded, is relevant to the issues, 87
and will be helpful to the fact-finder.
In other words, an expert’s testimony does not have to be generally
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accepted as reliable in the field, so long as the trial judge finds that the underlying theories and techniques 88
are indeed reliable.
In 1999, the Court decided Kumho Tire Co. v. Carmichael , which clarified Daubert by entrusting trial 89
judges as gatekeepers to exclude all forms of unreliable or irrelevant expert testimony.
Soon thereafter, 90
Federal Rule of Evidence 702 was amended in 2000 to incorporate the holdings of Daubert and Kumho. With those amendments, Rule 702 now states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts 91 of the case. 92
Daubert , or variations thereof, is probably the predominant standard in American courts.
Daubert re-
laxed the rules of evidence to encourage courts to allow more experts to testify. Criminal profilers have better chances of testifying in Daubert jurisdictions, than in Frye jurisdictions. Trial courts asked to admit admit a criminal profiler’s testimony face a confusing proposition. Evidence of specific instances of someone’s conduct is inadmissible to show that the person committed the offense 93
presently charged.
One reason for this per se prohibition is to avoid scapegoat prosecutions, where
someone is accused of committed the present offense because they committed a similar offense in the past. The obvious fallacy is that just because someone did something similar in the past, does not necessar94
ily mean that the same person committed the present offense.
As Lord Sumner famously remarked:
"[T]here is all the difference in the world between evidence proving that the accused is a bad man and evi95
dence proving that he is the [bad] man."
A critical component of most criminal profiles are specific
instances of the perpetrator’s conduct, which are used to show that the defendant is also guilty of the
present offense.
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To avoid this evidentiary barricade, some prosecutors have successfully offered a profiler’s expert opinion about characteristics from the crime scene and the defendant’s psychological evaluation, rather 96
than the profile itself.
When a party offers this kind of expert opinion as evidence, Frye or Daubert must
be satisfied. Unwary trial courts may permit the profile, crime scene analysis, or the defendant’s psych ological evaluation, when the proper evidentiary standard has not been satisfied. The following cases will examine both standards as they were applied in cases involving criminal profilers who testified as expert witnesses. B. Admissibility of Criminal Profiler Testimony Under Frye 1. Drake v. Portundo 97
Drake v. Portuondo,
illustrates how a trial court may be tricked into allowing expert testimony
based on an unreliable theory that was not generally accepted within the field.
98
In Drake, the defendant
appeals his convictions of two counts of second degree murder for ambushing and killing a young couple 99
and performing post-mortem sexual acts on the female. 100
related to sexual fantasy.
The motive of the murderer in Drake was likely
101
New York courts follow Frye.
During Drake's trial, the prosecution called Dr. Richard D. Walter, a criminal profiler who became a 102
founding member of the Vidocq Society,
a Pennsylvania-based criminal profiler consulting group. Walter 103
testified concerning the defendant’s motive for the murders ,
based on a fictional sexual dysfunction syn-
drome he “dubbed ‘picquerism,’ which is, ‘medically speaking, nonsense,’ but appeared to account for the particular, gruesome circumstances of the shooting.”
104
On appeal, the court concluded that Dr. Walter’s
theory was not generally accepted in the field, nor was it reliable. Dr. Walter also improperly bolstered his credentials,
105
presumably to enhance his own credibility. Dr. Walter’s opinion so clearly drew a connec-
tion between the defendant and the murder, that “’the jury was likely to be impressed (if not inflamed) by
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testimony that the defendant was a ‘picquerist’ who kille d, mutilated, and abused his victims to satisfy a warped sexual urge.’”
106
The Second Circuit Court of Appeals reversed and remanded for a new trial.
107
2. Commonwealth of Pennsylvania v. Distefano
In 2002, the Supreme Court of Pennsylvania affirmed a trial court’s decision to admit the testimony 108
of a profiler under the Frye test.
The profiler had limited his opinion to a crime scene analysis based on
theories that were generally accepted as reliable in the field, and he avoided any reference to the criminal profile or any outright assertions of the defendant’s guilt.
109
This case demonstrates that profilers may tes-
tify, so long as they leave any inference of guilt for the jury to decide. C. Admissibility of Criminal Profiler Testimony Under Daubert 1. Masters v. People of the State of Colorado
In 2001, Colorado abandoned Frye and opted for a combination of Daubert and the older version of 110
Federal Rule of Evidence 702 (pre-1976 amendment).
Thereupon, Colorado courts only needed to in-
quire as to the reasonable reliability of the expert’s scientific evidence, emphasizing the “broad” and 111
“liberal” attitude toward those inquiries.
In 2002, the Supreme Court of Colorado rendered an opinion in 112
Masters v. People that dealt with expert testimony of a criminal profiler.
In Masters, the defendant was convicted of murder based in part on the testimony of criminal profi113
ler Dr. Reid Meloy.
Physical indications at the scene led investigators to conclude that the victim had
been standing at the street curb outside of the defendant’s home when she was ambushed from behind and stabbed with a serrated blade.
114
The victim’s body was then dragged over 100 feet into a field near
the defendant’s home, where the victim was stabbed, her face was scratched in a distinct fashion, and her 115
genitals were mutilated.
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Investigators had copious circumstantial evidence linking the defendant to the crime. Inside the defendant’s home and in his high school locker, police recovered hundreds of writings and drawings that conveyed the defendant’s hatred of women, his fascination with brutally stabbing women and then drag116
ging their bodies into remote places to be dismembered.
He had two maps of the crime scene and a 117
sizable cache of survival knives similar to those used to kill the victim.
Many of the writings and drawings
depicted victims killed from behind in a surprise attack with distinctive scratch marks on their faces.
118
One particular drawing found in the defendant's backpack on the day after the murder aroused suspicion.
119
It depicted someone dragging a body by the armpits with blood dripping from its back, leaving 120
a bloody trail.
This was precisely the method that investigators determined the victim had been moved
from the street to the open field.
121
When investigators inquired about the drawing, the defendant ex-
plained that he drew it to “get something out of his system” because it was bothering him.
122
Lastly, when
investigators asked the defendant if he had ever thought about committing a murder like this one, he re123
sponded in the affirmative.
When investigators asked the defendant for advice concerning the
investigation, the defendant suggested that investigators search a ditch near a particular bridge.
124
A sur-
125
vival knife with a serrated blade was eventually recovered from the ditch near the bridge.
Notwithstanding this circumstantial evidence, no direct evidence was found to link the defendant to the crime, so he was not immediately charged.
126
Nearly a decade after the murder, police retained fo-
rensic psychologist Dr. Reid Meloy, who then reviewed the evidence and wrote a report which implicated 127
the defendant as the perpetrator.
The prosecution put Dr. Meloy on the witness stand to testify about
“the identity of the perpetrator, the motivation and premeditation of the defendant, the defendant’s pla n-
ning of the crime, his opportunity to commit the crime, and his subsequent knowledg e of the crime.”
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The defense objected to Dr. Meloy’s testimony on the grounds that it was improper character evidence.
129
The trial judge overruled the defendant’s objection, allowing Dr. Meloy to testify.
Dr. Meloy testified about his training and experience investigating sexual homicides, and he ex130
plained some of the techniques he used to identify evidence of fantasies in relation to sexual homicide.
Dr. Meloy explained that fantasies often trigger homicide and that the defendant’s writings and drawings tended to show that he had such fantasies.
131
Dr. Meloy explained the relevance and definition of fantasy,
pointing out the writings and drawings which supported his opinion.
132
The trial court prohibited Dr. Meloy
133
from testifying that the defendant fit the profile of a sexual murderer. 134
The defendant was convicted of first degree murder. 135
court’s decision.
The court of appeals affirmed the trial
On appeal, the Supreme Court of Colorado held that the trial court did not abuse its 136
discretion in admitting Dr. Meloy’s testimony.
The Colorado Supreme Court limited its review to 137
“whether the scientific principles underlying Dr. Meloy's testimony were reasonably reliable.”
The court recognized that because social science “attempts to understand highly complex behavior patterns, it is necessarily inexact. However this does not make make it per se inadmissible.”
138
The court based
its conclusion on the fact that Dr. Meloy had been qualified five times as an expert in sexual homicide, and that the prosecution established that the sexual homicide evidence elicited from Dr. Meloy was generally 139
accepted within the forensic community.
Dr. Meloy testified about the extensive body of specialized li-
terature dealing with sexual homicide, and that researchers have been studying sexual homicide for over 140
100 years.
He also noted that research had developed to include the systematic comparison of groups of
sexual homicide perpetrators to control groups.
141
Dr. Meloy’s opinion never made the inferential leap for the jurors as to the defendant’s guilt. Dr. Meloy opined that characteristics found at the crime scene indicated a sexual homicide motivated by fanta-
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sy, which was a well-documented theory and generally accepted in his field.
These expert crime scene
analyses are also admissible in Frye jurisdictions as “pure opinion” based on experience, rather than science.
143
It was also Dr. Meloy’s opinion that many of the defendant’s writings and drawings strongly indicated that he fantasized about committing sexual homicide. To again borrow Lord Sumner’s comparison: the defendant’s writings and drawings strongly suggested that he was a bad man, but Dr. Meloy never
opined that the defendant was the bad man. The final step in the syllogism, connecting the murder to the defendant, was left within the province of the jury to decide. Dr. Meloy never told the jury that the defen144
dant probably committed the murder.
Had the trial court not limited the profiler’s testimony, this case
would likely have been reversed. Dr. Meloy never implied that the defendant did anything improper in the past. An innocent person 145
may have fantasies about committing sexual homicide, but that doesn’t mean h e or she is a murderer.
Here, Dr. Meloy was asked to review evidence that the defendant had written and drawn. The images were disturbing, but without Dr. Meloy’s testimony a reasonable juror would likely not have appreciated the significance or the relevance of the material. Dr. Meloy analyzed the murder and and the materials separately, but he left the inferential leap between the two for the jury to make. V.
Conclusions
The field of criminal profiling has made considerable progress towards becoming a legitimate subspecialty of forensic psychology. As research progresses, profilers will have increasingly reliable scientific foundations for their opinions. Many theories and techniques underlying criminal profiles are presently regarded as experimental and unreliable by most most forensic psychologists. Thus, profilers must hurdle Frye or Daubert before their opinions may be admissible in court. court. As Frye is more restrictive, testimony admiss-
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ible under Frye will almost certainly be admissible under Daubert . The Drake, Distefano, and Masters cases provide some guidance as to how profilers may successfully, and properly, overcome Frye and Daubert challenges. From Drake, in a Frye jurisdiction, the court properly rejected Dr. Walters’ testimony, because: (1) he based his opinion on experimental, fictitious, and altogether unreliable theories; and (2) his testimony sought to show the defendant’s guilt through the behavioral characteristics at the scene. Distefano showed that if: (1) a profiler’s testimony remains within the realms of reliable psychologi-
cal theory; and (2) avoids making inferences of guilt, then the profiler’s testimony may be admissible under Frye. Masters, in a Daubert jurisdiction, jurisdiction, properly admitted Dr. Meloy’s testimony, because: (1) he based
his opinion on reliable theories of forensic psychology; and (2) he refrained from drawing conclusions of the defendant’s guilt or drawing a direct connection between the defendant and the crime.
In these three cases, the fact that the expert is a “criminal profiler” is irrelevant. What is important are the scientific research and theoretical foundations. Assuming a criminal profiler in a Kansas court limits his or her opinion to crime scene analysis and defendant psychological evaluation or diagnosis, but avoids any attempt to directly connect the defendant to the crime scene based on behavioral similarities, then that profiler’s testimony will likely be admissible. Although profiler testimony is nearly nonexistent in Kan-
sas case law today, the recent growth in forensic psychology suggests that Kansas courts, among others, will experience an influx of profiler opinion in the near future.
1
Thompson v. The King, [1918] A.C. 221, 236.
2
Terence W. Campbell & Demosthenes Lorandos, Specialty Guidelines for Forensic Psychologists, 2 CROSS EXAM. EXP. IN BEH. SCI. § 12:2 (Am. Psych’l Ass’n — Comm. on Ethical Guidelines for Forensic Psychologists, Mar. 9, 1991); see also, Brent E. Turvey & Wayne A. Petherick, Forensic Criminology 13 (Wayne A. Petherick ed., Elsevier Acad. Press 2010).
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3
Campbell & Lorandos, supra, at § 12:2.
4
David DeMatteo, et al, Educ. & Training Models in Forensic Psych., 3 TRAINING & EDUC. IN PROF’L PSYCH. 184 (Am. Psych’l Ass’n 2009).
5
Id .
6
Univ. of Neb. Coll. of Law, Nov. 22, 2010, http://law.unl.edu/academics/degree_programs.shtml#lap.
7
Kirk Heilbrun & Stephanie Brooks, Forensic Psych. & Forensic Sci.: A Proposed Agenda for the Next Decade, 16 PSYCH. PUB. POL'Y & L. 219, 220 (2010). 8
John Horgan, Understanding Crim. Beh.: Beyond ‘Red Dragon’ , UCC SCI. FACULTY PUB. LECTURE SERIES 2002-03, Feb. 11, 2002, http://understandingscience.ucc.ie/naturalworld/Understanding_Criminal_behaviour.pdf.
9
Id .
10
Graham J. Towl & David A. Crighton eds., et al, Forensic Psych. 3 (British Psych’l Soc’y & Blackwell Publ’g Ltd. 2010).
11
E.g. Malcolm Gladwell, Dangerous Minds: Crim. Profiling Made Easy , THE NEW YORKER, Nov. 12, 2007, http://www.newyork http://www.newyorker.com/rep er.com/reporting/2007/11 orting/2007/11/12/071112fa_fact_gla /12/071112fa_fact_gladwell. dwell. 12
Horgan, supra.
13
Thomas Harris, The Silence of the Lambs 1-5 (1988); The Silence of the Lambs (Orion Pictures 1991); see also, James A. George, Offender Profiling & Expert Testimony: Scientifically Valid or Glorified Results? , 61 VAND. L. REV. 221, 223 (2008); see also, Gladwell, supra, at 2. 14
See generally , Arthur C. Doyle, The Complete Sherlock Holmes (Barnes & Noble Inc. 1991).
15
Arthur C. Doyle, A Study in Scarlet , in, THE COMPLETE SHERLOCK HOLMES 27 (Barnes & Noble Inc. 1991) (1887).
16
Gisli H. Gudjonsson, Psych. Brings Justice: The Sci. of Forensic Psych., 13 CRIM. BEH. & MENTAL HEALTH 159, 160 (2003) (Professor Gudjonsson wrote this article based upon his inaugural lecture following his appointment to a personal chair in Forensic Psychology at the Institut e of Psychiatry, King’s College, London). 17
Id .
18
Pendleton v. The King, [2001] UKHL 66 (discussed in Gudjonsson, supra, at 160).
19
Gudjonsson, supra, at 160.
20
Towl & Crighton, supra, at 148.
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21
John E. Douglas, et al., Crim. Profiling from Crime Scene Analysis, 4 BEH. SCI. & THE LAW 401, 406 (John Wiley & Sons Inc. 1986).
22
Towl & Crighton, supra, at 48.
23
Id .
24
George B. Palermo, Homicidal Syndromes: A Clinical Psychiatric Perspective 19 –22, CRIM. PROFILING: INT’L THEORY, RESEARCH, & PRAC. (Richard N. Kocsis ed., Humana Press Inc. 2007).
25
George, supra, at 222; see also, Gladwell, supra, at 1.
26
Id .
27
Id .
28
Gladwell, supra, at 1.
29
See George, supra, at 222; see also, Gladwell, supra, at 1.
30
Id .
31
Id .
32
See George, supra, at 223; Horgan, supra, at footnote 2.
33
George, supra, at 223.
34
Towl & Crighton, supra, 149 –50.
35
Damon A. Muller, Crim. Profiling: Real Sci. or Just Wishful Thinking? , HOMICIDE STUDIES Vol. 4 No. 3, 236 (Sage Publ’n Inc. 2000).
36
Towl & Crighton, supra, at 144.
37
Muller, supra, at 236.
38
Towl & Crighton, supra, at 149.
39
Id . at 149 –50.
40
Id . at 149.
41
See Muller, supra, at 234.
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42
See Richard N. Kocsis, Crim. Psych’l Profiling: Validities & Abilities, 47 INT’L J. OF OFFENDER THERAPY & COMPARATIVE CRIMINOLOGY 126, 127-28 (Sage Publ’n Inc. 2003). 43
Douglas, supra, at 405; see also, John Douglas & Mark Olshaker, Journey Into Darkness 26 (Simon & Schuster Inc. 1997).
44
Towl & Crighton, supra, at 150.
45
Caroline B. Meyer, Crim. Profiling as Expert Evid.? An Int’l Case Law Perspective 235, CRIM. PROFILING: INT’L THEORY, RESEARCH, & PRAC RAC. (Richard N. Kocsis ed., Humana Press Inc. 2007) (Citing The King v. Stagg, Cent. Crim. Court, London, 14th Sept. 1994.); see also, Towl & Crighton, supra, at 150 (Writing that U.K. courts are increasingly resistant toward criminal profilers). 46
Id .
47
Nathan Gregory, Offender Profiling: A Review of the Literature , THE BRITISH J. OF FORENSIC PRAC RAC., Vol. 7, No. 3, pp. 29 –34 (Pier Prof’l 2005). 48
Gladwell, supra, at 3; Towl & Crighton, supra, at 152.
49
Id .
50
Towl & Crighton, supra, at 9 and 157.
51
Horgan, supra.
52
Frye v. U.S., U.S., 293 F. 1013 (D.C. Cir. 1923).
53
Id . at 1014.
54
Id .
55
Id .
56
Falls v. Scott, 249 Kan. 54, 63, 815 P.2d 1104, 1112 (1991).
57
State v. Stevens, 78 S.W.3d 817, 833 (Tenn. 2002).
58
KAN. STAT. ANN. § 60-401(b) (Current as of 2010).
59
FED. R. EVID. 401 (Current as of 2010).
60
State v. Trammell , , 278 Kan. 265, 282, 92 P.3d 1101 (2004); see also, State v. Woolverton, 35 Kan. App. 2d 478, 485, 13 1 P.3d 1253, 1259 (Kan. Ct. App. 2006) aff'd , 284 Kan. 59, 159 P.3d 985 (2007).
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61
Heilbrun & Brooks, supra, at 219.
62
Id .
63
Id .
64
Daubert v. Merrell Dow Pharm., Pharm., Inc., 509 U.S. 579, 594, 113 S. Ct. 2786, 2797 (1993).
65
Heilbrun & Brooks, supra, at 219.
66
Id .
67
Frye v. U.S., U.S., 293 F. 1013, 1014 (D.C. Cir. 1923).
68
See generally , Heilbrun & Brooks, supra, at 219.
69
Terrence W. Campbell, Challenging Psychologists & Psychiatrists As Witnesses , MICH. B.J., Jan. 1994, at 68.
70
Id .
71
Towl & Crighton, supra, at 157.
72
Daubert, supra, at 579.
73
Id .
74
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167 (1999).
75
See Heilbrun & Brooks, supra, at 220.
76
Jennifer Sparks, Admissibility of Expert Psych’l Evid. in the Fed. Courts , 27 ARIZ. ST. L.J. 1315, 1318 (1995).
77
State v. Heath, 264 Kan. 557, 957 P.2d 449 (1998); Armstrong v. City of Wichita, 21 Kan. App. 2d 750, 757, 90 7 P.2d 923, 929 (Kan. Ct. App. 1995) (stating at 757: “We decline to apply Daubert .”).
78
State v. Price, Price, 30 Kan. App. 2d 569, 43 P.3d 870 (Kan. Ct. App. 2002) rev'd on other grounds, 275 Kan. 78, 61 P.3d 676 (2003); see Deppish , 248 Kan. 217, 807 P.2d 144 (1991). also Smith v. Deppish, 79
State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992).
80
State v. Canaan, 265 Kan. 835, 848, 964 P.2d 681, 691-92 (1998).
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81
.; see Witte, supra; see also, Michael A. Barbara, Lawyer’s Guide to Kan. Evid. 162, KAN. LAW & PRAC RAC. (2007). Id .;
82
Id .
83
State v. Marks, 231 Kan. 645, 654, 647 P.2d 1292, 1299 (1982); see also, State v. Washington, Washington , 229 Kan. 47, 53, 622 P.2d 986 (1981). 84
KAN. STAT. ANN. § 60-456(b) (Current as of 2010).
85
Meyer, supra, at 210.
86
Daubert, supra, at 579.
87
Id .
88
Meyer, supra, at 210.
89
Kumho Tire Co., supra.
90
FED. R. EVID. 702 (Advisory Comm. Notes on 2000 Amendments) (Current as of 2010).
91
FED. R. EVID. 702 (Current as of 2010).
92
Meyer, supra, at 210.
93
KAN. STAT. ANN. § 60-447 (Current as of 2010).
94
State v. Price, 275 Kan. 78, 89-90, 61 P.3d 676, 684-85 (2003).
95
Thompson, supra, at 236 (Emphasis in original).
96
See George, supra, at 242.
97
Drake v. Portuondo, 553 F.3d 230 (2d Cir. 2009).
98
Id .
99
Id . at 233.
100
See id . at 236.
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101
York , 32 A.D.3d 91, 101, 819 N.Y.S.2d 705, 712 (N.Y. App. Div. 2006) aff'd, 9 N.Y.3d 825, 874 N.E.2d E.g. Nonnon v. City of New York, 720 (2007). 102
Founders of the Vidocq Soc’y, Dec. 2, 2010, http://www.vidocq.org/who.html#Walter.
103
Drake, supra, at 233.
104
Id . (citing Drake v. Portuondo (“Drake I ”), 321 F.3d 338, 346 (2d Cir. 2003)).
105
Drake, supra, at 237-38. See Drake,
106
Id . at 245 (citing Drake v. Portuondo (“Drake I ”), 321 F.3d 338, 346 (2d Cir. 2003)).
107
Drake, Drake, supra, at 247 –48.
108
Com. of Pa. v. DiStefano, No. 96-CR-737, Apr. 5, 1999, partly printed in PA. DISCOVERY & EVID. REP., Vol. 6, No. 12, Feb. 18, 2000, aff’d , Com. of Pa. v. DiStefano, 2001 PA Super 238, 782 A.2d 574 (Pa. Super. Ct. 2001); see also, Hank Grezlak, Profiling Testimony Inadmissible in Murder Trial , PA. LAW WEEKLY, Apr. 12, 1999, http://www.corpus-delicti.com/court_hazelwalter.html. 109
Id .
110
People v. Shreck, 22 P.3d 68, 70 (Colo. 2001).
111
Id .
112
Masters v. People, 58 P.3d 979 (Colo. 2002) (en banc).
113
Id .
114
Id .
115
Id .
116
Id .
117
Id . at 983 –84.
118
Id . at 984.
119
Id .
120
Id .
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121
Id .
122
Id .
123
Id .
124
Id . at 985.
125
Id .
126
Id .
127
Id .
128
Id .
129
Id .
130
Id .
131
Id . at 987.
132
Id .
133
Id .
134
Id . at 988.
135
Id .
136
Id .
137
Id .
ADAM Y. ZENTNER
138
Id . at 989 (citing Stevens v. People , 796 P.2d 946, 956 (Colo. 1990); see also, Christopher B. Mueller & Laird C. Kirkpatrick, E VID. § 7.22, at 766 (2d ed. 1999)).
139
Masters, supra, at 989.
140
Id .
141
Id .
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142
See Dion Gee & Aleksandra Belofastov, Profiling Sexual Fantasy: Fantasy in Sexual Offending & the Implications for Crim. ProfilRAC. (Richard N. Kocsis ed., Humana Press Inc. 2007) (Concluding, that “there ing 52, CRIM. PROFILING: INT’L THEORY, RESEARCH, & PRAC appears to be a consensus among researchers that supports the presumptive role of fantasy as a causal mechanism in sexually aberrant behavior.”). 143
E.g. State v. Price, 30 Kan. App. 2d 569, 579, 43 P.3d 870, 877-78 (Kan. Ct. App. 2002) rev'd on other grounds, 275 Kan. 78, 61 P.3d 676 (2003) (Explaining (Explaining that Frye only applies when science is the basis of the expert’s testimony, rather than experience which is admissible as “pure opinion.” ). 144
C.f. Sparks, surpa, surpa, at 1319 (In reference to expert testimony concerning the reliability of eyewitness accounts: “Greater co ncerns about admissibility arise when the expert goes beyond discussing general psychological trends and renders a clinical opinion as to whether a particular witness behaved in accordance with the observed trend, and thus, renders an opinion on whether an alleged event actually occurred.”).
145
.; see generally , Gee, supra, at 49 –71. See id .;
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