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The admissibility of offender profiling in courtroom: A review of legal issues and court opinions

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Abstract

What is the future of Offender Profiling? Is it an important field of forensic science or is it only a glamorous art? After the trilogy "Daubert-Joiner-Kumho" and after the last version, in 2009, of the Federal Rules of Evidence (F.R.E.), the opinion of American Courts concerning the admissibility of scientific evidence has changed, and the questions above can now have new answers. The change is closely tied to the perceived difference between hard and soft sciences and, in this way, the new gatekeeping role of the Courts also concerns whether offender profiling can be regarded as scientific evidence and if offender profiling should be admitted in the Courtroom as scientific evidence. In this work we present a comprehensive review concerning the most important Court opinions in U.S.A, U.K., Canada and Australia, about reliability and admissibility of offender profiling, in its different forensic application, as scientific evidence, and we suggest how and when an expert witness in the field of offender profiling can, in the light of these opinions, be admitted in Court.
The admissibility of offender proling in courtroom: A review of legal issues and
court opinions
Dario Bosco
a,
, Angelo Zappalà
a,b
, Pekka Santtila
b
a
Centre of Forensic Science, Turin, Italy
b
Åbo Akademi University, Åbo (Turku), Finland
abstractarticle info
Keywords:
Offender proling and crime linking
Expert psychological testimony
Legal and court psychology
What is the future of Offender Proling? Is it an important eld of forensic science or is it only a glamorous
art?
After the trilogy DaubertJoinerKumhoand after the last version, in 2009, of the Federal Rules of Evidence
(F.R.E.), the opinion of American Courts concerning the admissibility of scientic evidence has changed, and
the questions above can now have new answers. The change is closely tied to the perceived difference
between hard and soft sciences and, in this way, the new gatekeeping role of the Courts also concerns
whether offender proling can be regarded as scientic evidence and if offender proling should be admitted
in the Courtroom as scientic evidence.
In this work we present a comprehensive review concerning the most important Court opinions in U.S.A, U.K.,
Canada and Australia, about reliability and admissibility of offender proling, in its different forensic
application, as scientic evidence, and we suggest how and when an expert witness in the eld of offender
proling can, in the light of these opinions, be admitted in Court.
© 2010 Elsevier Ltd. All rights reserved.
1. Introduction
In 1993 the Federal Court of the United States of America was
charged of the case regarding minors Jason Daubert and Eric Schuller.
Reading the core of the Daubert opinion; according to Giannelli
(2006b), we can say that the new requirements for the admissibility
of the scientic evidence can be resumed in the following focal points:
1. Reliability. The Daubert Test requires that the methodology and the
theories used must be tested and reliable. The Court, in the opinion
explicitly refers to two scientists and to their theorems, Popper and
Hempel.
2. Peer review and scientic publication. The second evaluation of the
Daubert Test is to verify if the theories that are offered by an expert
witness have previously been published or submitted to the
scientic community for reference, what the scientic community
call peer review.
3. Error rate. The third evaluation to be completed for establishing the
admissibility of an expert witness is the fact that the expert is able
to offer to the Court the potential rate of error of his theory or
methodology.
4. General acceptance. Naturally the Court was forced to make a clear
reference to the general acceptance test, having expressly been
invested for solving the problem about if the Frye test could be
considered applicable. With regard to this matter, the judgment
species that the general acceptance from the scientic community
cannot be read like a precondition for the admissibility of scientic
evidence.
5. Standard. The Court identies also the existence and the respect of
standards known and recognized for the procedure and the
methodology adopted in the expert opinion.
6. Applicability to the concrete case (Fit). Finally, the method or the
theory to be scientically reliable must be t to the concrete case
and must be logically linked to it.
After the Daubert opinion the Supreme Court, in General Elec. Co. V.
Joiner. 522 U.S. 136, 1997 and in Kumho Tire Company, Ltd. V.
Carmichael. 526, U.S.137, 1999, was charged of the problem related to
the object of this article that is if, how and when the Daubert
1
Test
must be and can be applied to soft sciences and to the witness
indicated in the F.R.E. 702
2
. The central point of the opinions claries
that the Courts, in their gate keeping role regarding the admissibility
of scientic opinions, should apply the principles pointed out by the
Daubert Test for all expert witness and types of scientic evidence.
International Journal of Law and Psychiatry 33 (2010) 184191
Corresponding author. Via F. Palizzi, 75. 80127 Napoli, Italy.
E-mail address: dario_bosco@fastwebnet.it (D. Bosco).
1
Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S 579. 1993.
2
If scientic, technical, or other specialized knowledge will assist the trier of fact to
understand the evidenceor to determine a factin issue, a witnessqualied 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 sufcient 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 of the case.(F.R.E. 702, 2009).
0160-2527/$ see front matter © 2010 Elsevier Ltd. All rights reserved.
doi:10.1016/j.ijlp.2010.03.009
Contents lists available at ScienceDirect
International Journal of Law and Psychiatry
So, after the trilogy Daubert, Joiner
3
, Kumho
4
and after the new
version, in 2009, of the Federal Rule of Evidence (F.R.E.) 702, the
opinion of the Courts concerning the admissibility of scientic
evidence has changed. The change is closely tied to the perceived
difference between hard and soft science and, in this way, a new issue
for the Courts is whether offender proling is scientic evidence and if
offender proles should be admitted in the Courtroom as scientic
evidence.
Between the end of 1980's and the beginning of 1990's, offender
proling has been presented as forensic evidence in a number of
cases; some prosecutors as well as some defendants have called into
the Courtroom criminologists, psychiatrists, psychologists and F.B.I.
special agents as experts in the eld of offender proling and in the
eld of crime scene analysis. The Courts' opinions have been applied
to three specic types of offender proling evidence: motivational
analysis, modus operandi evidence, and linkage analysis.
Motivational analysis usually refers to a situation where an expert
offers an opinion regarding the motivation underlying a particular
crime through an analysis of the crime scene.
Modus operandi or prole evidence refers to a situation where an
expert offers an opinion regarding if a certain type of behavior
committed by the offender is compatible with a particular type of a
person.
Linkage analysis refers to a situation where an expert offers an
opinion regarding if two or more crimes have been committed by
the same person by analyzing the cases, more specically the
crime scenes, the modus operandi, the characteristics of the victim
and so called signature behaviors.
Through these three types of consultations offender proling has
been introduced as evidence in Court. In the present article, we aimed
to verify how and when this type of expertise has been admitted into
Courts and if there is any change in the admissibility decisions, in this
eld of forensic science, after the Daubert trilogy. Below, we present a
review of how American Courts have argued in regard of these three
forensic applications of offender proling quoting some of the most
meaningful opinions in this forensic eld.
2. The review of American court opinions.
2.1. Motivational analysis
An interesting opinion concerning the admissibility of Motiva-
tional Analysis in Simmons v. State (709 So. 2d 1134. Ala.1999). The
defendant Clarence Simmons was accused of having killed an elderly
woman in Alabama in such an extremely violent and eccentric
manner that the F.B.I. had also been involved in the investigation
through one of their prolers. Although there was no doubt on the fact
that Simmons was guilty, there was no direct physical evidence
showing that the homicide would have been perpetrated with sexual
motivation and during an attempted rape and sadistic attack.
To prove the motivation the prosecutor decided to refer to the
Behavioral Unit of the F.B.I., which provided the advice of a special
agent who testied that the murder was sex-related. Simmons's
appeal was based on claiming that the rst degree Court had made a
mistake in allowing the special agent to testify on the sex motivation
of the crime. The Court of Appeal justied its decision with regard to
the matter as follows:
Initially, we nd it imperative to note that the evidence offered
through expert testimony was not proletestimony. Prole
evidence attempts to link the general characteristics of serial
murderers to specic characteristics of the defendant. Expert
testimony did not accuse Simmons of committing the crime. The
testimony concentrated on his opinion of what the crime scene and
the physical condition of M.A.'s body suggested happened during the
murder. There is an enormous difference in testimony identifying a
person who bears certain characteristics as being more likely to have
committed the offense and in testimony that the physical evidence of
a crime indicates certain characteristics about the offense. []
Therefore, with the principles enunciated in Daubert and Kumho in
mind, we must determine whether the elds of victimology and
crime-scene analysis constitute reliable specialized knowledge;
whether the F.B.I. agent is an expert within these elds; and whether
the subject matter of his testimony is relevant and assists the trier of
fact in this case.
[]
F.B.I. agent testied that he had been
investigating homicide crime scenes for approximately 20 years
and that he had extensive experience. [] He detailed the theories
supporting crime scene analysis and victimology, the way the
specialized knowledge was applied in this particular case and the
factors considered in reaching his determination. [] We note that
experienced ofcers are qualied to give their opinion regarding their
eld of expertise. Thus, we conclude that the expert testimony
adequately established that crime-scene analysis and victimology are
reliable elds of specialized knowledge and that, based upon his
studies and experiences in these elds, he was an expert [].
Additionally, we must determine the relevance of the evidence and its
ability to assist the jury. [] The state was required to prove that
Simmons subjected M.A. to sexual contact by forcible compulsion.
[] Whether the offender received sexual gratication while
committing the offense was a critical issue of the case, and expert's
testimony was probative on that issue. The expert offered observa-
tions of the crime scene and the elderly female victim that would
assist the jury in evaluating the circumstances surrounding the
murder and the reasons for the method employed by the offender. We
conclude that, the trial court did not err in admitting expert
testimony because the jury would be greatly assisted by a
professional analysis of the crime scene in comparison to other
murder cases. [Post Daubert Admitted.].
In 2002 the Supreme Court of Tennessee gave an opinion in the
case State v. Stevens. (Tennessee, Supreme Court, 78 S.W. 3d 817.
2002 Tenn.). The defendant was found guilty by a Davidson County
jury of hiring eighteen-year-old Corey Milliken to murder his wife,
Sandra Jean Stevens, and his mother-in-law, Myrtle Wilson. The
defendant retained a crime scene expert to conduct a crime scene
analysis to determine the motive for the crime. The expert described
the murder as disorganized sexual homicide. After classifying this
crime scene in disorganized/sexual crime scene, he compared this to a
contract murder crime scene, that is the charge, to underline all the
difference between the two types of homicide.
The Supreme Court decided that the trial court did not abuse its
discretion in limiting the testimony of the defendant's crime scene
expert to his analysis of the evidence at the crime scene. The Supreme
Court justied its decision in the following way:
The defense offered an expert witness to prove that Milliken
committed sexually motivated murder as a violent response to a ght
with his mother and stepfather just hours before the crime. The expert
testied that he had worked as a special agent for the Federal Bureau of
Investigation (FBI) for approximately twenty-ve years, and he served
his last ten years with the FBI in the Behavioral Science Unit. He explained
that the FBI used criminal investigative analysis to discern the probable
motive of the criminal by analyzing the evidence found at the crime scene
primarily from a behavioral perspective. Based on his review of this
evidence, the expert categorized the crime scene in this case as a
disorganized sexual homicide sceneand he testied that criminals
usually commit disorganized violent crimes as a result of some
precipitating stresser, [or] stressful eventin the criminal's life. []
185D. Bosco et al. / International Journal of Law and Psychiatry 33 (2010) 184191
3
General Elec. Co. V. Joiner.522 U.S. 136. 1997.
4
Kumho Tire Company, Ltd. V. Carmichael. Supreme Court of U.S.A. 1999, 526, U.S.137.
Also he testied that the perpetrator in this case spent a fair amount of
time at the crime scene trashingthe place to make it look like a burglary
or a for protmotive. [] In Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), the United
States Supreme court held that Federal Rule of Evidence 702 imposes a
gatekeepingobligation on the trial court to ensure that any and all
scientic testimony ... is not only relevant, but reliable.The trial court
correctly reasoned that such nonscientic testimony must still meet the
fundamental requirements of relevance and reliability. In this case, the
trial court found that expert's testimony failed to pass the test of scientic
reliability. In resolving the evidentiary issue before us, the United States
Supreme Court's recent decision in Kumho Tire Co. v. Carmichael, 526 U.S.
137, 147, 143 L. Ed. 2d 238, 119 S. Ct. 1167 (1999), provides useful
guidance, because the Court concluded that when assessing the reliability
of nonscientic expert testimony, the trial court may consider the
Daubert factors. Turning to the facts in this case, we cannot conclude that
the trial court erred in refusing to admit the expert opinion. We do not
doubt the usefulness of behavioral analysis to assist law enforcement
ofcials in their criminal investigations, we cannot allow an individual's
guilt or innocence to be determined by such opinion evidence connected
to existing data only by the ipse dixitof the expert. Moreover, we nd
that the FBI's study revealing a seventy-ve to eighty percent accuracy
rate for crime scene analysis lacks sufcient trustworthiness to constitute
evidence of this technique's reliability. Although the frequency with
which a technique leads to accurate or erroneous results is certainly one
important factor to determine reliability, equally important is the method
for determining that rate of accuracy or error. In this case, there is no
testimony regarding how the FBI determined the accuracy rate of this
analysis. Therefore, because the behavioral analysis portion of expert's
testimony does not bear sufcient indicia of reliability to substantially
assist the Trier of fact, we conclude that this testimony was properly
excluded. [Post Daubert. Excluded.].
In 2002, the Court of Appeal of Ohio give an opinion involving an
expert witness in crime scene analysis and proling in the case State v.
Garcia. (2002 4179; Ohio App.). Angela Garcia, appealed her
convictions by a jury on two counts of aggravated murder, two
counts of murder and three counts of aggravated arson. At trial, Garcia
maintained the re was accidental and that she tried to save her girls,
but could not because of the re's intensity. One of arguments behind
the appeal was that the trial Court would have made an error when it
allowed a crime scene analystto testify about the motivation of the
crime based on the crime scene analysis, and to provide opinions
tantamount to prolingfor consideration by the jury.
The Court of Appeal wrote:
In the case at bar, we rst note that neither McCrary nor Saunders
testied about anything other than the charge of arson. McCrary
testied the re was arson and Saunders testied that Garcia had a
nancial motive for committing arson. McCrary testied that though
he regards himself as a criminal proler, his role in the case at bar
was to provide an expert opinion based upon his criminal
investigative analysis of the evidence in the case. McCrary stated
that he became experienced in crime scene analysis during his
25 years with the FBI. McCrary admitted that he is not an arson
expert. McCrary listed the items he reviewed before reaching his
conclusions about the re. When asked to proffer his opinion about
what type of arson had been committed in this case, McCrary offered
the following testimony: when we look at all the totality of the
circumstances, in my opinion it looks more like positioning one's self
for potential insurance fraud. Saunders testied that he is a forensic
auditor and that in that capacity, he reviews information to
determine whether there is a nancial motive for the commission
of a particular crime. Saunders told the jury that, based upon his
review of Garcia's nancial situation before the re, he believed that
she did have a nancial motiveto commit arson. According to
Garcia, McCrary's and Saunder's testimony was highly improper
because they should not have been qualied as experts nor allowed
to invade the province of the jury by stating that it was arson for
prot and that Garcia had a nancial motive for setting the re. These
conclusions belong to the jury and only the jury. We agree such
testimony improperly invaded the jury's province. We must conclude,
therefore, that McCrary's and Saunders' testimony was improperly
admitted. [Post Daubert Excluded.].
2.2. Modus operandi or prole evidence
The rst case concerning Modus Operandi or Prole Evidence that
we will consider refers to 1993 and is State v. Roquemore (85 Ohio
App. 3d 448. 620 N.E. 2d 110). Defendantappellant, Dennis
Roquemore, appealed his convictions in the Franklin County Court
of Common Pleas of two counts of rape and one count of involuntary
manslaughter. In this case the expert was admitted to testify as
criminal proling. His expert opinion is about the motivation of the
rape. The expert classied the crime scene as disorganized, and he
described the rape as an angerretaliatory rape. Defendant raised ve
incidents of error one of which was as follows: The trial court
committed reversible error and deprived appellant of due process of
law by permitting introduction of inadmissible opinion testimony by a
criminal proler.
The Court so decided:
The prosecution's expert witness testied about a crime scene
assessment and the witness concluded that this crime scene fell into
patterns of known violent behaviour that he had studied in the past.
The purpose of the testimony was to render an opinion given the
crime assessment. The prosecution argued that this testimony was
necessary to rebut the defense argument that a rape did not occur.
The witness testied as a prolist.He described prolingas:
basically a method of examination which looks at the issue of motive.
It ties to crime assessment[][]From that crime behaviour then
and that assessment, then one, again using probability, looks at the
issues of the type of person and/or situation of which the crime was
committed.The crime scene assessmentthen involves an analysis
of whether the crime scene falls into patterns of knownviolent
behaviour that the witness claims to have studied in the past and, if
so, identifying and labelling such behaviour. The witness testied that
the crime scene was disorganized[] The witness classied this
case as tting into an anger retaliatory type of motivational structure
pattern.Not only does the evidence need to be reliable in order to be
admissible, it must also be helpful to the trier of fact. In this case,
there is a distinct possibility of stereotyping the defendant. The
witness testied only concerning the typicalcrime scene pattern
and the typicalviolence associated with such a crime scene. The
witness did not interview or evaluate the defendant or prolea
specic person. He proles for a type of person who would do a
particular crime that has been assessed. Although relevant, evidence
is not admissible if its probative value is substantially outweighed by
the danger of unfair prejudice, of confusion of the issues, or of
misleading the jury. []. This witness testied about only the
generalities and these generalities and typical facts rather than
specic facts tend to place the defendant into a stereotype. []This
type of character evidence is inadmissible at least unless the
defendant has rst put his character at issue and probably not even
then. Since admission of the opinion evidence was prejudicial error,
defendant's rst assignment of error is well taken. [Post Daubert.
Excluded.].
In 2006 the 4th Circuit of the Federal Court of Appeal of the United
States give an opinion in the case U.S.A. v. Thomas III ( CCB-03-0150.
2006 U.S. Dist. Maryland), in relation to the admissibility of two
different expert opinion, the rst related to an evaluation by a forensic
psychiatrist and the second one by a proler or forensic psychologist.
186 D. Bosco et al. / International Journal of Law and Psychiatry 33 (2010) 184191
The Court opinion was:
The United States charged Gordon Elliott Thomas, III with sexual
exploitation of a child and the receipt and possession of child
pornography and moved for his pre-trial detention, on the grounds
that the charged offenses are crimes of violence, as dened by
Congress, and that no conditions of release could reasonably assure
the safety of the community. The ruling is on the testimony of the two
experts presented, Dr. Neil Blumberg and Supevisory Special Agent
James Clemente. The government did not specically challenge the
bases of Dr. Blumberg's opinions, or even generally question the
utility of psychiatric evaluation as a tool for assessing the defendant's
future dangerousness. In the instant case, the court found Dr.
Blumberg's opinion reliable for the following reasons. First, a review
of Dr. Blumberg's curriculum vitae, revealed that he was eminently
qualied as an expert in forensic criminal psychiatry. Second, Dr.
Blumberg conducted a standard forensic psychiatric evaluation. Thus,
the court found Dr. Blumberg's opinions reliable. Next the court
assessed the testimony of the government's expert. The court
recognized that SSA James Clemente had certain expertise in criminal
investigative analysis regarding the characteristics and behavioral
patterns of child sex offenders, based on specialized knowledge. In
contrast to Dr. Blumberg's opinion, however, the court found SSA
Clemente's methodology in reaching his conclusion that there was a
highrisk that Mr. Thomas would re-offend if released pending trial
insufciently reliable. First, SSA Clemente was unable to demonstrate
that his risk assessment methodology had been (or could be) tested.
Moreover, the typology of a preferential sex offender, to which SSA
Clemente repeatedly referred as the foundation of his analysis,
apparently was based entirely on anecdotal case studies and
interviews. SSA Clemente was unable to offer even any retrospective
studies establishing the validity of this typology. SSA Clemente
therefore acknowledged that his opinions were based on anecdotal
case studies and interviews, and lacked an empirical basis. Failure to
satisfy four out of the ve Daubert factors, and most of the less
rigorous criteria sometimes applied in the social science context,
combined with a lack of any other persuasive indicia of reliability,
forced the court to conclude that the principles and methods
underlying SSA Clemente's opinions were insufciently reliable. The
government's motion for detention was denied. [Post Daubert.
Excluded in part and Admitted in part.].
2.3. Linkage analysis, signature and prole evidence
The rst case related to linkage analysis, we will take into
consideration will be Pennell v. State (602 A.2d 48. Del 1991).
Defendant was convicted by jury in the Superior Court, New Castle
County, of two counts of rst degree murder, and two life sentences
were imposed. The defendant appealed. [] F.B.I. agent was allowed
to testify as an expert on serial murders. The appellant, Steven B.
Pennell, was indicted and tried on three counts of rst degree murder.
The State claimed that these were serialmurders. Pennell was
convicted on two of those counts, but the jury was unable to reach a
verdict on the third count. The jury imposed two life sentences on the
defendant. Agent John Douglas, Director of the F.B.I.'s Behavioral
Science Unit, testied as an expert in the area of serial murders. After
reviewing the deaths of Ellis, Di Mauro and Gordon, he opined that
they were all committed by the same person.
The Court opinion was:
Pennell argues that the trial court abused its discretion in allowing
F.B.I. Agent Douglas to testify as an expert on serial murders. He
contends that this was not the proper subject of expert testimony.
Pennell's attempt to apply the Frye test and its progeny to Agent
Douglas' testimony is misplaced. Those cases concern the relia-
bility, accuracy and admissibility of certain scientic tests. See, e.g.,
Frye v. United States, 293 F. 1013 (D.C.App.1923) (lie-detector
test). Agent Douglas, on the other hand, was providing an expert
opinion based upon his knowledge and experience in the eld of
crime analysis. This Court has held that when an expert's opinion is
based solely upon his own knowledge and experience, the Frye test
has no application. The admissibility of Agent Douglas' opinion,
therefore, is governed by Delaware Rule of Evidence 702 (Rule
702). This Court has held that knowledge is specializedonly when
not possessed by the average Trier of fact. Douglas' extensive
experience with signature crimes and crime analysis was specialized,
and if accepted by the jury, could be helpful to it in understanding
behaviour unknown to the general public. In addition, Agent Douglas
was unquestionably qualied as an expert. Accordingly, the trial
court properly found his testimony to be admissible opinion
testimony under Rule 702. Also, the trial court permitted Agent
Douglas to testify as to the signatureaspects of the crime, but
would not allow the introduction of proleevidence. Prole
evidence is that which attempts to link the general characteristics of
serial murderers to specic characteristics of the defendant. Such
evidence is of little probative value and extremely prejudicial to the
defendant. Defendant argues that Douglas' testimony that the
perpetrator was not youthfulimpermissibly implicated Pennell,
who then was 32 years old. Upon examining the context of the
comment, however, we are satised that Douglas' statement was not
improper. The word Youthfulwas in reference to the criminal
experience of the perpetrator rather than his age. Thus, under all of
the circumstances we are satised that Douglas did not impermis-
sibly interject proleevidence into the case. [Pre-Daubert.
Admitted. Not discussing in reliability].
In 1994 the Court of Appeal of Washington State gave an opinion in
the case State v. Russell (882 p.2d, 747. Wash. 1994). George W.
Russell was convicted by a King County jury of the rst degree murder
and the aggravated rst degree murders. The fourth issue the
Defendant raised in his appeal was whether the trial court erred in
admitting expert testimony regarding the rarity of posed murder
victims. At issue here are references made by John Douglas and Robert
Keppel to the HITS and VICAP computer programs during their
testimony regarding the rarity of posing. These programs use forms,
lled out by local law enforcement ofcers, listing the various
characteristics of homicides in Washington and the nation respec-
tively. The trial court found that the expert testimony referring to HITS
and VICAP did not involve novel scientic evidence and was,
therefore, subject only to the requirements of F.R.E. 702.
The Court opinion was the following:
In the case at bar, the trial court ruled that both Keppel and Douglas
were widely recognized as authorities in crime scene analysis. Both
men have extensive experience in serial crime analysis and
investigation. The court then found that their testimony would not
involve the application of a new scientic technique and that a Frye
hearing was unnecessary. We agree with the trial court that the Frye
test clearly was inapplicable to the expert testimony regarding the
HITS and VICAP programs. These programs are nothing more than
sophisticated record-keeping systems. The court correctly analyzed
the admissibility of this testimony under ER 702 and we nd no
abuse of discretion in the admission of the experts' testimony. Russell
also objects to this testimony on the ground that it was statistical.
Neither expert expressed his opinion about the rarity of posing in
precisely quantied terms, though Douglas testied as to the number
of cases on VICAP and Keppel testied as to the number of cases on
HITS. Russell maintains, however, that by specifying the extent of
these databases, Keppel and Douglas implicitly testied that Russell
was guilty as a matter of mathematical probability. We rst note that
there is no prohibition against using well-founded statistics to
establish some fact that will be useful to the Trier of fact. Second, both
experts relied on the databases primarily as support for the
187D. Bosco et al. / International Journal of Law and Psychiatry 33 (2010) 184191
conclusion that posing is a rare occurrence and not for the conclusion
that there was a statistical probability that Russell committed the
murders and both expressed their opinions in non-quantiable terms.
[Post Daubert. Admitted.].
In 1999 the Court of Appeal of the State of Oregon gave an opinion
in the case State v. Dunn [981 p. 2d 809. Or. App. 1999]. The defendant
was charged with rst degree robbery and kidnapping. There was no
signicant dispute about the facts of the crime; the primary issue at
trial was whether the defendant was the person who actually
committed the crime. The state appealed the trial court's pre-trial
rulings excluding evidence that, the state believed, tended to prove
that the defendant was the offender. The trial court held that the non-
expert evidence was irrelevant and excluded the testimony of a state
expert.
The Court opinion was:
The state seeks to use the evidence of Sergeant G. of the Seattle
Police Department, whom it offered as an expert in criminal
investigative analysis.G. expertise involves attempting to deter-
mine from the nature of a crime the kind of person who may have
committed it in order to help investigators nd possible suspects. He
testied to features of the 1982 incident that, he believed, were
relevant to identifying defendant as the person who committed this
crime: Both events showed elevated or extreme amounts of violence
compared to other cases where the potential gain would be the
same, in that the use of a weapon and the confrontation of the
victims was elevated above normal, and both involved the actual
display of force from close proximity. Those things, Gebo thought,
showed intent to exert dominion and control over the victim. Gebo
also testied that the items in defendant's room showed a very
fruitful fantasy lifethat was centred on domination and control.
The Supreme Court discussed the admissibility of evidence of other
crimes when the purpose of the evidence was to prove identity
based on modus operandi. It held that, for the evidence to be
admissible, the state had to prove by a preponderance of the
evidence that (1) there is a very high degree of similarity between
the charged and uncharged crimes; and (2) the methodology is
attributable to only one criminal,that is, it is so distinctive that it
earmarks the acts as the handiwork of the accused (the mark of
Zorrotest). It also described three factors for determining whether
there is a high degree of similarity between the charged and
uncharged crimes: (1) the time lapse between the crimes; (2) the
geographic distance between the crimes; and (3) the resemblances
between the methodologies of the crimes. The state argues that the
evidence is admissible under this section and all of the evidence is
relevant because it has a tendency to establish that defendant has
unusual experience, and interest, and a motivation, that relates to
the manner in which the crimes charged was committed.However,
the facts in this case do not meet the high level of similarity request.
In 1982, defendant used a gun in a van parked in a campground; he
arrived and ed by car. The criminal in this case used a knife in an
open store; he arrived and ed on foot. The fact that defendant in
1982, and the criminal in this case, each used a strong threat in an
attempt to get the victim to cooperate does not by itself make the
crimes distinctive. Even accepting the expert's testimony that the
level of violence in each case was unusual in light of the apparent
purpose of the crime, and even accepting the state's speculation that
the motive in each case was some deviant purpose, possibly sexual
bondage and murder,the similarities are not sufciently great to
make evidence of the rst crime admissible in the trial of the second.
ThereisnomarkofZorro.Weafrm. [Post Daubert. Excluded.].
In 2000 the Supreme Court of New Jersey gave an opinion in the
case State v. Fortin. (724-A2d 818. N.J. Super A.D. 1999745 A.2d 509.
N.J. 2000.). This opinion is one of the most important regarding the
applicability of offender proling as scientic evidence in trial. The
opinion concerns the reliability of the technique of crime linking and
offender proling. The defendant was charged with capital murder of
Melissa Padilla, on August 1994 in New Jersey. In pre-trial evidentiary
rulings, the Superior Court, Law Division, Middlesex County held that
evidence to the effect that the defendant had sexually assaulted and
non-fatally strangled a female police ofcer in Maine could be
admitted as other crimes evidence, and that a proposed witness
could testify as an expert on ritualistic and signature crimes. The
State's proposed expert on modus operandi and ritualistic behavior,
summarized his extensive schooling and training. He is a former F.B.I.
agent, has over thirty-two years experience as a law enforcement
professional. He determined that the modus operandi of the crimes
involving Padilla and Gardner demonstrated some fteen similarities.
The expert's report discussed ritualistic, or signature, behavior of
the violent offender, as follows:
The violent offender who repeats his offenses typically demon-
strates a second type of behavior that is termed Ritualisticbehavior.
Such behavior is frequently referred to as the Signatureof a criminal.
This behavior goes beyond what is necessary to commit the crime. Its
sole purpose is to provide the offender with mental and/or emotional
gratication. The expert concludes that the crimes committed against
both victims were anger-motivated, and that the offender demon-
strated anger through the following identied ritualisticor
signaturebehavior in both crimes:
1. Bites to the lower chin;
2. Bites to the lateral left breast;
3. Injurious anal penetration;
4. Brutal facial beating;
5. Manual frontal strangulation.
In determining that the same person committed the two attacks,
the expert concluded:
In my 35 years of experience with a variety of violent crimes, I
have never observed this combination of behaviors in a single
crime of violence. The likelihood of different offenders committing
two such extremely unique crimes is highly improbable. It is my
opinion that the same person was responsible for the two crimes.
The judge accepted expert under N.J.R.E. 702, qualied to offer an
opinion that the same offender committed both crimes.
The Court opinion was (724-A2d 818. N.J. Super A.D. 1999):
Defendant also contends the judge erred in qualifying the witness as
an expert on modus operandi and ritualistic behaviour, to express his
opinion that the same person who committed the Maine assault
against Trooper Gardner is the same person who committed the
Padilla murder. We agree. Here, as the judge noted, the expert
testied this analysis is not based on science, but based on his
training and experience with violent crimes.While not based on
science in the technical sense, his linkage-analysis methodology is
certainly founded in the area of behavioral science. We conclude that
the same detailed analysis regarding admission of scientic evidence
is applicable and necessary in determining whether linkage analysis
expert testimony is admissible. We certainly agree with his
conclusion that expert's testimony would assist the Trier of fact in
understanding how crimes can be linked together through criminal
investigative analysis of the modus operandi and ritualistic beha-
viour associated with the crimes. We also agree that the expert has
extensive expertise in the area of criminal investigative techniques.
Where we differ with the judge is his conclusion that expert's linkage
analysis is sufciently reliable for admission in this capital murder
prosecution. The State argues that expert linkage analysis testimony
has been admitted in other jurisdictions as sufciently reliable like in
Pennell v. State, 602 A.2d 48 (Del.Supr.1991).However those cases
188 D. Bosco et al. / International Journal of Law and Psychiatry 33 (2010) 184191
involved serial killers or rapists, with multiple crimes. Here, there is
an attempt to link behaviour in two crimes, under circumstances
where there are as many differences as there are similarities. There
are differences in the age, race, weight and height of the victims.
There is a signicant difference in the status of each victim. There are
also differences in the type of assault. The expert testied that modus
operandi and ritualistic behaviour are the subject of articles and
books, and that he teaches this criminal investigative technique to
law enforcement personnel. We have no doubt that these methods
are valid and have great value in performing the very difcult task of
criminal investigation. We are not persuaded, however, that these
techniques are sufciently reliable for an expert in those elds to
testify that the same person who committed one crime committed the
other under the analysis of the facts and circumstances presented in
this case.In summary reverse the order permitting the witness to give
expert opinion that the same person who committed the Maine crime
also committed the New Jersey crime. (N.J.Super.A.D.,1999).
Appeal and cross-appeal were taken. The Supreme Court, O'Hern
opinion, is (745 A.2d 509. N.J. 2000):
On the question of expert testimony, the Appellate Division found
that the analysis was not sufciently reliable to be admitted as expert
evidence. The Appellate Division observed that expert testimony was
essentially ultimate issueevidence. If defendant committed the
Maine crime and the same person committed the Maine and New
Jersey crimes, then Fortin had committed the New Jersey crime. []
For the reasons stated in its opinion, we agree with the judgment of
the Appellate Division that the proposed expert testimony concerning
linkage analysis lacks sufcient scientic reliability to establish that
the same perpetrator committed the Maine and New Jersey crimes.
We add only these observations.The government expert's report fails
to meet the standards for the admission of testimony that relates to
scientic knowledge. The eld of linkage analysis is not at a state of
the artsuch that his testimony could be sufciently reliable. See
Kelly,supra,97N.J.at197,478A.2d364holding three
requirements for the admission of expert testimony: (1) the intended
testimony must concern a subject that is beyond the ken of the
average juror; (2) the eld testied to must be at a state of the art
such that an expert's testimony could be sufciently reliable; (3) the
witness must have sufcient expertise to offer the intended
testimony. In this case, we are concerned with the second prong of
the test, the scientic reliability of the evidence. As the Appellate
Division noted however, the authorities and literature authored by
the expert and others do not demonstrate that linkage analysis has
attained such a state of the art as to have the scientic reliability of
DNA testing. Moreover, linkage analysis is a eld in which only the
expert and a few of his close associates are involved. In this respect,
there are no peers to test his theories and no way in which to
duplicate his results []. For the reasons noted by the Appellate
Division, we also believe that the cases in other jurisdictions in which
similar evidence has been admitted are distinguishable.We are not so
certain that the M.O. factors cited by the expert, such as that both
victims were mature females and were attacked while alone and at
night time, demonstrate an unusual pattern. It is on this question of
an unusual patternthat the testimony would be helpful. For
example, if the witness can from a reliable data base offer evidence
that a combination of bite marks on the breast, bite marks on the
chin, and rectal tearing inicted during a sexual attack is unique in
his experience of investigating sexual assault crimes, that evidence
could help to establish an unusual pattern. Such expert testimony
would help a court make an initial determination of whether to
admit the other-crime evidence and would, if presented at trial,
better enable a jury to understand whether the crimes were unusual
and distinctive so as to be like a signature. It's not in this case. It is
initially for the court, and ultimately for the jury, however, to
determine whether that inference concerning the ultimate issue of
guilt may be drawn. We are especially concerned about the use of
expert testimony to interpret mattersthat could be considered
commonplace or conduct that could be accounted for commonsensi-
cal. Our concern is that a fact nder's uncritical acceptanceof
expert testimony can becloud the issues. We have no sense that
expert suggestions are counterintuitive or will receive uncritical
acceptance. Stripped of its scientic mantra, the testimony is nothing
more than a description of the physical circumstances present. The
judgment of the Appellate Division is afrmed. [Post Daubert.
Excluded.].
3. A review of other countries Court opinions.
It's relevant, at this point, a short section dedicated to other
countries Court's opinion, about admissibility of criminal proling like
scientic evidence,. The choice is for three countries: United Kingdom,
Canada and Australia, and it's because this countries have a
homogenous Criminal Law System, in fact all these countries have a
common law system as U.S.A. and because they have a long tradition
to use expert witness in Criminal Court in all the eld of forensic
science including criminal proling.
3.1. English Court opinions review.
In the U.K. the key rule for the admission of expert evidence is
expressed in the case Folkes v. Chadd, (1782 3 Doug KB 157) where it
was held: The opinion of scientic men upon proven facts may be given
by men of science within their own science. An expert's opinion is
admissible to furnish the court with scientic information which is likely
to be outside the experience and knowledge of a judge or jury.
And in R. v. Turner (60 Cr App R 80, 1975) the Court said:
An expert's opinion is admissible to furnish the court with scientic
information which is likely to be outside the experience and
knowledge of a judge or jury. If on the proven facts a judge or jury
can form their own conclusions without help, then the opinion of an
expert is unnecessary [] the fact that an expert witness has
impressive scientic qualications does not by that fact alone make
his opinion on matters of human nature and behaviour within the
limits of normality any more helpful than that of the jurors
themselves; there is a danger that they think it does.
This rule was broaden in R. v. Robb, (93 Cr. App. R. 161, 1991) with
this opinion: [] a technique, method or eld of knowledge does not
have to be generally accepted before it can be admitted, and, besides, it
must be sufciently established to be reliable before it can be admitted.
[] While receiving this evidence the courts would not accept the
evidence of an astrologer, a soothsayer, a witch-doctor or an amateur
psychologist and might hesitate to receive evidence of attributed
authorship based on stylometric analysis.
For the speciceld of offender proling, in R. v. Stagg, (U.K.
Central Criminal Court, 121, 1994), the prosecutor sought to introduce
in Court an offender proling expert to prove the correspondence
between the criminal proling of the killer that had been prepared
during the investigation and the psychological prole of the suspect
charged for that murder. The Court refused to admit the evidence with
this opinion: The notion that a psychological prole is in any
circumstance admissible in proof of identity is to my mind redolent
with the consideration that no judge in any common law court has ever
been treated the criminal proling as properly admissible in proof of
identity. [] There were doubts as to whether psychological prole
evidence had achieved widespread acceptance or had been adequately
established as to be sufciently reliable like scienticevidence.
[Excluded].
189D. Bosco et al. / International Journal of Law and Psychiatry 33 (2010) 184191
In R v. Gilfoyle, (EWCA Crim 81, 2000), the accused of murder
sought to admit in Court and expert in psychology and criminal
proling who had prepared a psychological autopsy. The opinion of
the expert was that the victim has committed suicide.
This is the opinion of the Court: We declined to receive the
evidence of Professor C. and we now give our reasons. []In our
judgment the professor C. is clearly an expert in his eld, the evidence
tendered from him was not expert evidence of a kind properly to be
placed before the court for a number of reasons. First, although this
alone would not necessarily be fatal to the admissibility of his evidence,
he had never previously embarked on the task which he set himself in
this case. Secondly, his reports identify no criteria by reference to which
the court could test the quality of his opinions: there is no data base
comparing real and questionable suicides and there is no substantial
body of academic writing approving his methodology. The American
Psychology Association Panel has recommended that psychologists
conducting a psychological autopsy state in their report that the
conclusions drawn are based on a speculative view of events. In our
view unstructured and speculative conclusions are not the stuff of
which admissible expert evidence is made. Thirdly, Professor C.'s views
are based on one-sided information, in particular from the appellant,
and his family who have never given evidence. []Fifthly, there is
English, Canadian and United States authority which points against the
admission of such evidence. The guiding principle in the United States
appears to be (as stated in Frye v United States 1923 293 F1013) that
evidence based on a developing new brand of science or medicine is not
admissible until accepted by the scientic community as being able to
provide accurate and reliable opinion. This accords with the English
approach [] And so the present academic status of psychological
autopsiesisnot,inourjudgment,suchastopermitthemtobeadmitted
as a basis for expert opinion before a jury. [Excluded].
3.2. Canadian Court opinions review.
Canada is the closest country to the U.S.A. so often its judicial
practice reects the U.S.A.'s trend. For that reason Canada has, more
than other countries, opinion about admissibility of offender proling
in court.
The most important rule on offender proling evidence is the
opinion expressed in R. v. Mohan.
In the key case R.v. Mohan [2 S.C.R. 9 N 23063, 1994], the defendant
was charged with four counts of sexual assault, and the defense sought
to introduce in Court a psychiatrist to explain that the psychological
prole of the perpetrator of the rst three complaints would likely be
that of a pedophile, while the prole of the perpetrator of the fourth
complaint would likely be that of a sexual psychopath, and if one
perpetrator was involved in all four complaints described in the
hypothetical questions, he would uniquely categorize that perpetrator
as a sexual psychopath. The expert would go on to testify that the
defendant does not have the characteristics attributable to any of the
three groups in which most sex offenders fall.
This is the opinion of the Court on the admissibility of this
evidence: The admissibility of the rejected evidence was analyzed in
argument under two exclusionary rules of evidence: (1) expert opinion
evidence, and (2) character evidence. I have concluded that, on the
basis of the principles relating to exceptions to the character evidence
rule and under the principles governing the admissibility of expert
evidence,thelimitationsontheuseofthistypeofevidencerequirethat
theevidenceinthiscasebeexcluded.Admissionofexpertevidence
depends on the application of the following criteria: (a) relevance; (b)
necessity in assisting the trier of fact; (c) the absence of any
exclusionary rule; (d) a properly qualied expert.
[]The trial judge was not satised that the characteristics
associated with the fourth complaint identied the perpetrator as a
member of a distinctive group. He was not prepared to accept that the
characteristics of that complaint were such that only a psychopath
could have committed the act. There was nothing to indicate any
general acceptance of this theory. Moreover, there was no material in
the record to support a nding that the prole of a pedophile or
psychopath has been standardized to the extent that it could be said
that it matched the supposed prole of the offender depicted in the
charges. The expert's group proles were not seen as sufciently reliable
to be considered helpful. In the absence of these indicia of reliability, it
cannot be said that the evidence would be necessary in the sense of
usefully clarifying a matter otherwise unaccessible, or that any value it
may have had would not be outweighed by its potential for misleading
or diverting the jury. Given these ndings I must conclude that the trial
judge was right in deciding as a matter of law that the evidence was
inadmissible [excluded].
In R. v. Ranger [R. Ranger v. R. C3 1117, 2003], the Ontario Criminal
Court of Appeal had to review an appeal by the defendant who was
convicted of murders of two teenaged sisters. Part of the appeal was
about the admissibility of prosecutor's expert, the chief of Behavioral
Sciences Section of the Ontario police. The expert testied that the
perpetrator had staged the crime scene to deect suspicion from him,
and that he had a specic curiosity in one of the two sisters. This is the
opinion of the Court of Appeal:
In this case it becomes important in applying the Mohan criteria, to
distinguish between, rst, the expert witness's opinion that the crime
scene appeared staged, and, second, her various opinions on the
motivations and characteristic of the likely perpetrator as a person
associated with the victims, in particular Marsha. I will refer to the
rst category as crime scene evidenceand the second as criminal
proling.
3.2.1. The crime scene evidence
The appellant argues that expert opinion evidence on staging was not
necessary. He submits that there was an evidentiary basis for the jury to
conclude on its own that the crime scene was staged.
Although the appellant's argument on the issue of necessity is not
without merit, I am of the view that it was open to the trial judge to nd
that it was necessary to admit some form of expert opinion on this issue.
However, the dangers associated with the reception of expert opinion
evidence do not disappear simply because the evidence, on its face,
meets the four criteria set out in Mohan. As noted earlier, evidence
should not be admitted if its prejudicial effect outweighs its probative
value. In my view, the manner in which the crime scene evidence was
packaged for the jury in this case exemplies the usual dangers
associated with expert opinion evidence. Those dangers must be
considered in the balancing process that forms part of the test for
admissibility. However, because of the manner in which the staging
opinion evidence was presented through Detective Inspector Lines, it is
my view that the danger that the jury might give the evidence more
weight than it deserved far outweighed its probative value. Further, the
stage was set for far-reaching opinion evidence on criminal proling
and, unfortunately, Detective Inspector Lines' evidence did include
matters that went beyond the permissible scope of admissibility. This
leads to the analysis of the criminal proling evidence.
3.2.2. The criminal proling evidence
Accepting that criminal proling may be a useful, albeit potentially
dangerous, aid to police investigations, its use as a means of proof in
a courtroom is quite another matter. It becomes important to
distinguish between matters related to the description and analysis
of a crime scene, the WHATand matters related to the motivation
or characteristics of the offender, the WHYor the WHO.All aspects
of expert opinion testimony of course must meet the same test for
admissibility and I am not suggesting that the simple characteriza-
tion of the evidence answers the question on admissibility. I am
simply observing that expert opinion testimony about WHYor
190 D. Bosco et al. / International Journal of Law and Psychiatry 33 (2010) 184191
WHOusually raises more concerns. These concerns relate most
frequently to two aspects of the Mohan test for admissibility: the
requirement that the evidence be sufciently reliable to warrant its
admission and the requirement that its probative value exceed its
prejudicial effect. I note the following examples to explain the
difference. Attempts to adduce expert opinion evidence about WHY
an offense was committed in a particular manner and, more
particularly, about WHO is more likely to have committed the
offense, that is, the kinds of evidence that I have labelled more
particularly as criminal proling, have generally not met with
success, either in this jurisdiction or elsewhere. The expert testimony
as opinion about the motivation of staging behaviour.However her
opinion on WHY a perpetrator would employ staging included and
extended to WHO that person would be.[...] Criminal proling is a
novel eld of scientic evidence, the reliability of which was not
demonstrated at trial. To the contrary, it would appear from her
limited testimony about the available verication of opinions in her
eld of work that her opinions amounted to no more than educated
guesses. As such, her criminal proling evidence was inadmissible.
The criminal proling evidence also approached the ultimate issue in
this case and, hence, was highly prejudicial. [Excluded].
3.3. Australian Court opinions review
The Australian general rules about scientic evidence are the same
than on other common law Countries.
The case selected for the aim of this work is Hillier v. The Queen
[ACT SC, 50, 2003]. The defendant was charged with murder and
arson, he sought to introduce in Court an expert in behavioral science
who had studied proling in the U.S.A. to describe the character and
future behavior of a man that committed those crimes and how it was
different from the defendant. This is the opinion of the Court: The fact
that proling may sometimes prove to be a valid investigative tool does
not justify a conclusion that its exponents may leap majestically over the
limitations of modern psychology and psychiatry and give expert
evidence as to the personality and conduct of a particular person. I
doubt that the most eminent psychiatrist or psychologist would attempt
to venture a professional opinion as to the underlying personality of a
person whom he or she had neither met nor seen; even if informed of
what had been found at a particular crime scene and invited to infer that
the person had been the offender. Hence, Courts must exercise constant
vigilance to ensure that they are not unwittingly misled. [Excluded].
4. Conclusion
After the Daubert opinion in 1993 the U.S.A. Courts' criteria
concerning scientic evidence have changed. Today, after the trilogy
and after the new version, in 2009, of the F.R.E. 702, it seems to be
clear that the principle of reliability must be applied to all expert
opinions based on both hard and soft sciences. This is true for all
expert witnesses in the elds of psychiatry, psychology and
criminology and, in the light of the opinions above, it is highly
probable that the offender proling technique and methodology, like
other types of scientic evidence, will be judged on its scientic
reliability and relevance.
This is true not only for the U.S.A. but for the other reviewed
countries as well. The Australian, Canadian and British Courts'
opinions reported in this work show the same trend of judgment in
these elds of forensic science and scientic evidence.
It can be afrmed that the opinions above and this new trend will
be the general rule for admissibility of all the expert witness in the
eld of psychology and psychiatry. According to Gudjonsson and
Copson (1999), of ninety studied trials in U.K., only two prolers were
admitted to the Court, and according to Gregory (2005), prolers have
never been admitted as scientic experts in British Courts for lack of
reliability and scientic of their knowledge.
So there is no place anymore for witnesses who claim to testify as
experts in the elds of offender proling and in psychology and
psychiatry too, only for their ipse dixit; and it seems probable that the
Courts will exclude scientic evidence built by this methodology.
Who intends to use offender prolers as expert witnesses, all
around the world, must be able to overcome the Daubert Test and to
prove that the used methodology is reliable and that the offender
proling is science and not art.
The scientic community that deals with offender proling should
be able to standardize a method for its forensic application, making
the research and the education on the issues related to the use in the
courtroom of the criminal proling. Only in this way this knowledge
can constitute novel and scientic evidence. If this will not happen it
will be more and more difcult for prolers to be admitted in
courtroom as experts and for criminal proling to nd useful
applications in the world of the forensic sciences.
References
Giannelli, P. C. (2006). Understanding evidence. LexisNexis.
Gregory, N. (2005). Offender proling: A review of the literature. The British Journal of
Forensic Practice,7(3), 2934.
Gudjonsson, G. H., & Copson, G. (1999). The role of the expert in criminal investigation.
In J. L. Jackson & D. A. Bekerian (Eds.), Offender proling, theory, research and
practice. Wiley.
TABLE OF CASES
Bryant v. Maryland. 881 A.2d 669. Md App. 2005.
Com. v. Hawkins. 626 A2d 550. Pa. 1993.
Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S 579 Supreme Court of U.S.A 1993.
Folkes v. Chadd, 1782 3 Doug KB 157.
Folkes v. Chadd. 3 Doug KB 157, 1782.
Frye v. United States, 293 F. 1013. No. 3968. Court of Appeals of District of Columbia
1923.
General Elec. Co. V. Joiner. 522 U.S. 136. Supreme Court of U.S.A 1997.
Hillier v. The Queen ACT SC, 50, 2003.
Kumho Tire Company, Ltd. V. Carmichael. 526, U.S.137. Supreme Court of U.S.A 1999.
Pennell v. State. 602 A2d 48. Del. 1991.
People v. Masters. 33 P.3d 1191. Colo. App. 2001.
R v. Gilfoyle. E.W.C.A. Crim. 81, 2000.
R. v. Beland. 2 S.C.R. 398, 1987.
R. v. Lavellee. 55 C.C.C. 3d 97, 1990.
R. v. Mohan. 2 S.C.R. 9 N 23063, 1994.
R. v. Ranger. C3 1117, 2003.
R. v. Robb. 93 Cr. App. R. 161, 1991.
R. v. Stagg. U.K. Central Criminal Court, 121, 1994.
R. v. Turner. 60 Cr App R 80, 1975.
Sate v. Parkinson. 909 P.2d 647. Idaho App. 1996.
Sate v. Roquemore. 620 N.E 2d 110. Ohio App. 10 Dist, 1993.
Simmons v. State. 797 So 2d 1134. Ala Crim. App. 1999.
State Rusell. 882 P.2d 747. Wash 1994.
State v. Carlson. 30419-8II. Wash App. 2006.
State v. Dunn. 981 P.2d 809. Or. App. 1999.
State v. Fortin. 724 A 2d 818. N.J. Super A.D. 1999.
State v. Fortin. 745 A 2d 509. N.J. 2000.
State v. Garcia. 4179. Ohio App. 2002.
State v. Moeller. 548 N.W. 2d 465. SD 1996.
State v. Stevens. 78 S.W. 3d 817. Tenn. 2002.
State v. Wallace. 528 S.E. 2d 326. N.C. 2000.
Toney v. State. 1503 Texas App. 1996.
U.S.A. v. Fitzgerald. 02-4978 CR-02-164. 4th Circuit, Virginia 2003.
U.S.A. v. Hines. 55 F. Supp. 2d 62. U.S. 1999.
U.S.A. v. Thomas III. CCB-03-0150. Maryland, Fed U.S. Dist 2006.
U.S.A. v. Webb. 115 F.3d 711. U.S Appeal. 1997.
191D. Bosco et al. / International Journal of Law and Psychiatry 33 (2010) 184191
... Secondly, for profiling to advance there must be a move towards scientific practice, with uniformity across the field essential for admissibility in court (Freckelton, 2008) should the profiler/analyst be appropriately qualified for such endeavours. Although profiling is intended to develop investigative hypotheses, given the progression towards evidence-based policing, some proponents have suggested that for profiling to constitute a scientific method, court and legal admissibility is essential (Bosco et al., 2010;Freckelton, 2008;Petherick & Brooks, 2014). Currently, profil-ing regularly fails to add probative value to cases, and instead is considered to have a greater prejudicial effect (Bosco et al., 2010). ...
... Although profiling is intended to develop investigative hypotheses, given the progression towards evidence-based policing, some proponents have suggested that for profiling to constitute a scientific method, court and legal admissibility is essential (Bosco et al., 2010;Freckelton, 2008;Petherick & Brooks, 2014). Currently, profil-ing regularly fails to add probative value to cases, and instead is considered to have a greater prejudicial effect (Bosco et al., 2010). One of the central challenges to profiling meet-ing admissibility standards in courts has been due to the inconsistencies in practice, with large discrepancies observed across approaches and methods of practice. ...
... For profiling to develop as a forensic science and ultimately have admissibility in court, the discipline must be reliable, subject to peer review and scientific publication, be generally accepted amongst fellow practitioners, have guiding or governing standards, have identifiable error rates, and be implemented only in appropriate and applicable cases (Bosco et al., 2010). Subsequently, it is proposed that a joint methodology be employed when constructing criminal profiles, focusing on the strengths of each profiling approach and establishing uniformity in practice standards. ...
Article
Full-text available
Profiling aims to identify the major personality and behavioural characteristics of offenders from their interactions in the crime. The discipline has undergone numerous changes and advances since its first modern use by the psychological/psychiatric community. The current paper reviews the different approaches to criminal profiling, exploring the reasoning and justification utilised across profiling practices. Profiling aims to assist criminal investigators; however, the variance in profiling approaches has contributed to inconsistency across the field, bringing the utility of profiling into question. To address the current areas of practice deficit in criminal profiling, a framework is proposed to promote integrated practice. The CRIME approach provides a framework (consisting of crime scene evaluations, relevancy of research, investigative or clinical opinions, methods of investigation, and evaluation) to promote structure and uniformity in profile development, aiming to assist in the reliability of the practice by providing an integrative framework for developing profiles.
... First, OP is not only extremely popular in the media and pop culture, it is also a popular area of research for scholars in psychology, criminology, and beyond. Unfortunately, there is very little within the field of OP that is well-established and agreed upon, which is perhaps due to the lack of uniformity in methods, data, or even the basic terminology used by those conducting research on OP (Bosco, Zappala`, & Santtila, 2010;Ebisike, 2008;Fox & Farrington, 2015;Wilson, Lincoln, & Kocsis, 1997). For instance, some use a clinical approach to OP, where profiles are developed on a case-by-case basis by a profiler who has considerable training, experience, and practice in the field, but with no clear process or methodology outlined (e.g., Holmes & Holmes, 1996;Snook, Cullen, Bennell, Taylor, & Gendreau, 2008). ...
... There are also very few evaluations on the effectiveness of the multitude of methodologies and profiles that are being implemented by law enforcement in unsolved cases. The primary concern is that, although OP is utilized regularly in police investigations, the field currently does not rise to the level of scientific credibility according to the 1993 Daubert standard (see Bosco et al., 2010;Ebisike, 2008;Fox & Farrington, 2015;Pakkanen, Bosco, & Santtila, 2014;Turvey & Freeman, 2012). Specifically, there is no known reliability or error rate for the vast number of methodologies or profiles developed in the field, largely because it is unclear what methodologies and resultant profiles currently exist. ...
... Specifically, to address concerns that the field does not rise to the level of scientific credibility according Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993;Bosco et al., 2010;Ebisike, 2008;Pakkanen et al., 2014), all future profiles should be developed using a solid empirical approach that relies on advanced statistical analysis of large data sets (not the intuition or experience of the author or the descriptive statistics of a handful of cases), and should undergo peer review prior to publication. This will help to streamline the vast number of methodologies used in the field, increase the quality of resultant profiles, and the acceptance of OP in the field. ...
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In the 4 decades since offender profiling (OP) was established, hundreds of journal articles, books, book chapters, reports, and magazine articles have been published on the topic, and the technique has been used by countless law enforcement agencies around the globe. However, despite the popularity and extensive literature published on OP, very little is known about its evolution, current state, or findings of the field to date. Therefore, this study presents a systematic review and meta-analysis of 426 publications on OP from 1976 through 2016. Results of this systematic review suggest that there have been considerable improvements in the scientific rigor and self-assessment being conducted in the discipline, although in total, few studies have used a strong empirical approach to develop new profiles. Even fewer evaluations of the effectiveness of OP have been conducted. The first summary of offender profiles proposed for major crimes in OP literature is also presented, with results indicating some recurrent themes in profiles, but wide variations in the number, name, and description of the profiles often found. A meta-analysis of case linkage analysis research indicates that this area is statistically sophisticated, and has yielded moderate to strong accuracy rates for linking crimes to a single offender. Finally, the first analysis of the most prolific authors, researchers, departments, and outlets for OP research, and the methods, approach, and most cited publications in OP are identified. Suggestions for future research on OP and the potential impact that this may have on policy and practice are also discussed. (PsycINFO Database Record (c) 2018 APA, all rights reserved).
... Forensic science is a considerably valuable tool for police investigations, lawyers and judges; however, without sufficient review, validation, and standards, pseudoscience may emerge (Jupe & Denault, 2019). On face value, something may appear scientific, yet before any approaches or techniques can be considered as science, there must be established reliability, peer review, general acceptance, clear standards, identifiable error rates, and applicability to the issues or matter at hand (Bosco, Zappalà, & Santtila, 2010;Giannelli, 2006). Emerging techniques in forensic science are promising and important for the discipline, however, as Governmental reports (PCAST, 2016; United Kingdom Forensic Science Regulator, 2019) have highlighted, these techniques must be regulated and cautiously applied if commercialised. ...
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Australian Police Journal: Forensic sciences are facing a credibility problem that has rapidly escalated in the last few years. Governmental investigations in the U.S. and the U.K. on the validity of forensic science techniques has led to concern for the state of the discipline (National Research Council, 2009; PCAST, 2016; Science and Technology Select Committee, 2019), while in Australia and New Zealand a systematic review is yet to occur. Governmental reports from the U.S. and the U.K. have highlighted the dearth of empirical support for numerous forensic methods and the problems associated with the commercialisation of forensic products. One forensic method that has been commercialised is an EEG-based lie detection product termed Brain Fingerprinting. The following is a discussion of Brain Fingerprinting and an explanation of why concerns over the credibility of this forensic technique are substantial and warranted and lead us to conclude that it is not yet ready for implementation in Australia.
... Over the past decade, increased attention has been given to the methodology used in linkage research, both in an attempt to compare the efficiency of different statistical methods (Tonkin et al., 2017;Winter et al., 2013), and in trying to increase the ecological validity of the research samples (Tonkin et al., 2011;Winter et al., 2013;Woodhams et al., 2019;Woodhams and Labuschagne, 2012). The latter is a critical issue for the application of CLA in the courtroom, as shown by a number of cases where expert opinions on crime linkage have been rejected as evidence (Bosco et al., 2010;Pakkanen et al., 2014;see also HMA v. Thomas Ross Young, 2013). In many cases, a key concern has been the generalizability of crime linkage research on CLA to actual cases, as the data sets used in research are often not representative of actual police databases. ...
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Purpose – Crime linkage analysis (CLA) can be applied in the police investigation-phase to sift through a database to find behaviorally similar cases to the one under investigation and in the trial-phase to try to prove that the perpetrator of two or more offences is the same, by showing similarity and distinctiveness in the offences. Lately, research has moved toward more naturalistic settings, analyzing data sets that are as similar to actual crime databases as possible. One such step has been to include one-off offences in the data sets, but this has not yet been done with homicide. The purpose of this paper is to investigate how linking accuracy of serial homicide is affected as a function of added hard-to-solve one-off offences. Design/methodology/approach – A sample (N = 117–1160) of Italian serial homicides (n = 116) and hard-to-solve one-off homicides (n = 1–1044, simulated from 45 cases) was analyzed using a Bayesian approach to identify series membership, and a case by case comparison of similarity using Jaccard’s coefficient. Linking accuracy was evaluated using receiver operating characteristics and by examining the sensitivity and specificity of the model. Findings – After an initial dip in linking accuracy (as measured by the AUC), the accuracy increased as more one-offs were added to the data. While adding one-offs made it easier to identify correct series (increased sensitivity), there was an increase in false positives (decreased specificity) in the linkage decisions. When rank ordering cases according to similarity, linkage accuracy was affected negatively as a function of added non-serial cases. Practical implications – While using a more natural data set, in terms of adding a significant portion of non-serial homicides into the mix, does introduce error into the linkage decision, the authors conclude that taken overall, the findings still support the validity of CLA in practice. Originality/value – This is the first crime linkage study on homicide to investigate how linking accuracy is affected as a function of non-serial cases being introduced into the data.
... Shaw and Chen (2014) show that the use of available data to profile suspect's background helps in correlating unique chemicals in murders involving poisoning. Data is vital in understanding criminal history of a suspect to crime scene behaviour [23,24]. Training, education and experience of murder investigators in data mining and analysis is important in imparting skills and knowledge for correlating information and is a key to successful profiling. ...
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Forensic criminology (FC) is the branch of applied criminology devoted to collecting, analyzing and presenting evidence before the Court. Regarding its possible use in the Spanish courtroom, a literary review is conducted on the topic of forensic social science with particular focus on FC. The bases for admission of such reports in the Anglo-Saxon sphere are identified, as well as relevant Spanish legislation. Its most frequent purposes and objects are exposed. Finally, said parameters are compared between countries and implications for Spanish application are discussed.
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Knowledge management (KM) is a critical organizational asset predicated upon a knowledge-based perspective of the firm that emphasizes identification, sharing, and exploitation of knowledge assets. Profiling practitioners, constituting a community of practice (CoP, are compared to empiricists associated as a community of interest (CoI). The CoP operates using tacit knowledge whereas the CoI codifies knowledge to make it explicit. Within criminal profiling the CoI are severely critical of the tacit methods and typologies utilized by the CoP with the consequence being empirical divergence from practice. A research agenda focused upon a multidisciplinary approach to criminal profiling, combining the CoP and CoI paradigms is needed to bridge the gap and settle questions of criminal profiling efficacy and contribute to theory.
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The article by Kocsis and Palermo, published in 2016, examined the findings of research which had assessed the validity of the investigative technique colloquially known as criminal profiling. These findings were subsequently considered within the framework of their relevance to the admissibility of the technique as a form of expert witness evidence. The overall conclusion was that a discrete facet of the profiling technique may satisfy some of the requisite legal criteria for admissibility in jurisdictions within the United States. However, this conclusion was based upon studies which used samples of senior forensic psychiatrists and psychologists as the tested profilers. In this regard, it was noted that this parameter may preclude the generalization of this conclusion to other professional groups who do not possess such qualifications. Accordingly, the present article explores the potential admissibility of law enforcement personnel who are not qualified forensic mental health practitioners tendering expert witness evidence in the nature of criminal profiling. The conclusion of this analysis is that law enforcement personnel who possess suitable expertise in the analytic task of criminal profiling arguably possess an analogous knowledge base akin to the aforementioned senior forensic psychiatrists and psychologists. On this basis, the conclusions in Kocsis and Palermo, published in 2016, may extend to such personnel and their potential to likewise provide expert witness evidence.
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Fire investigation is arguably one of the most difficult areas of investigation. The fire scene and available evidence has often been burnt, melted, smoke-stained, water-damaged and trampled on, but the fire investigator still has to make important distinctions between whether a fire was accidental or deliberate (arson). Modern fire investigations often rely on portable electronic detectors to identify ignitable liquid residue (ILR), or accelerant detection canines (ADCs), trained on a number of target substances. An analysis of cases from England and Wales, the United States of America (USA) and Canada demonstrates that sophisticated admissibility frameworks have not been effective in rejecting opinion testimony given by investigators and dog handlers that unconfirmed dog alerts where laboratory tests were negative provided proof of arson. This is problematic and controversial, and the authors conclude that such testimony is not compatible with modern forensic or scientific standards and should not be admitted into courts.
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Winds from protogalactic starbursts and quasars can drive shocks that heat, ionize, and enrich the intergalactic medium. The Sedov-Taylor solution for pointlike explosions adequately describes these blast waves early in their development, but as the time since the explosion (t - t_1_) approaches the age of the universe (t), cosmological effects begin to alter the blast wave's structure and growth rate. This paper presents an analytical solution for adiabatic blast waves in an expanding universe, valid when the IGM is homogeneous and contains only a small fraction of the total mass density ({OMEGA}_IGM_ << {OMEGA}_0_). In a flat universe, the solution applies until the age of the universe approaches t_1OMEGA_IGM_^-3/2^, at which time the self-gravity of the matter associated with the shock compresses the shocked IGM into a thin shell. When {OMEGA}_IGM_ <~ 0.03, blast waves starting after z ~ 7 and containing more than 10^57^ ergs remain adiabatic to relatively low z, so this solution applies over a wide range of the parameter space relevant to galaxy formation. Using this analytical solution, we examine the role protogalactic explosions might play in determining the state of intergalactic gas at z ~ 2-4. Since much of the initial energy in galaxy- scale blast waves is lost through cosmological effects, photoionization by a protogalaxy is much more efficient than shock ionization. Shocking the entire IGM by z ~ 4, when it appears to be substantially ionized, is most easily done with small explosions (<~ 10^56^ ergs) having a high comoving number density (~>1 Mpc^-3^). Larger scale explosions could also fill the entire IGM, but if they did so, they would raise the mean metallicity of the IGM well above the levels observed in Lyα clouds. Since the metal abundances of Lyα clouds are small, the metals in these clouds were probably produced in small-scale bursts of star formation, rather than in large-scale explosions. The H I column densities of protogalactic blast waves are much smaller than those of typical Lyα clouds, but interactions between shocks and preexisting Lyα clouds can potentially amplify the neutral column densities of preexisting clouds by a large factor.
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All societies in the modern world are troubled by crime, and the general public is equally fascinated by criminals and fearful of criminal behaviour. In the United Kingdom, events such as the murders of Jack the Ripper, the Yorkshire Ripper and Harold Shipman, and the Soham tragedy, coupled with film and television programmes including Silence of the Lambs, Cracker and Crime Scene Investigation, have fuelled the public's consciousness of the criminal mind.In the fight against crime, the development of offender profiling by the FBI in the USA has further captured people's imagination. The technique was introduced to help law enforcement agencies solve serious crimes such as serial rape or murder, and to a lesser extent arson and property crime. At the heart of profiling lies the belief that by combining psychological principles with crime scene analysis, it is possible to identify the likely characteristics of a perpetrator.Although advances in crime detection are welcomed, the profiling field appears riddled with contradiction and disagreement. Social scientists argue that the discipline is unscientific due to methodologically weak research, while police officers appear sceptical about its benefits for solving crime. In Britain, profiling has witnessed both notable successes, for example Canter's profile of the serial rapist and murderer John Duffy, and dramatic failures, such as the Colin Stagg profile in the Rachel Nickell inquiry. This article reviews the offender profiling literature, examines its applicability in the legal system and identifies areas for future research.
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Efforts to halt proliferation of nuclear weapons are threatened by vulnerability of weapons-usable material to smuggling especially in Russia. Mixing 232 U into highly-enriched uranium (HEU) makes it readily observable and harder to steal. Adding a proportion of 233 U associated with a specific storage site enables attribution to be per-formed on stolen HEU that has been recovered. Incorporating 244 Pu into plutonium does the same for this material. U.S. programs for radioactive surplus disposition could provide a source for tags. Current U.S.-Russian efforts to dispose of surplus nuclear weapons open opportunities to incorporate tags into large amounts of weapons-usable material. The 232 U detection tag would also enhance ongoing US-Russian efforts to detect smuggling of weapons-usable materials out of Russia. While the end of the Cold War greatly reduced the threat of an all-out nuclear war between the United States and the Russian Federation, it created a new set of challenging national security concerns. The political and economic vola-tility in Russia has resulted in growing fears about the lack of fissile material security there and raised the specter of this material falling into the hands of 'rogue' nations, terrorists, and other opportunists. 1-3 In this report we describe a way of significantly reducing this threat by making it easier to detect smug-gled fissile material and by creating a nuclear fingerprint to aid law enforce-ment in identifying the source of a 'leak.' We also describe a unique confluence of opportunities that make this nuclear tagging feasible at this time. We propose uniformly mixing specific substances into fissile materials to act as intrinsic tags. The tags work in two ways. First, they brighten the radio-active signature of highly-enriched uranium (HEU) making it easier to detect. HEU emits far less radiation than plutonium and is more difficult to detect.
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External beam pituitary irradiation has been frequently used in the treatment of growth hormone (GH) secreting pituitary adenomas. Many studies have demonstrated that serum GH declines rapidly and reliably following treatment and early "cure" rates, based on a basal serum GH below 10 micrograms/L were as high as 80%. The definition of "cure" has become more stringent over time and retrospective studies have indicated that GH must be below 2.5 micrograms/L for acromegalics to achieve mortality rates comparable to a normal population. Only 20% of irradiated patients will achieve this goal by 10 yr. Even fewer will achieve a normal serum insulin-like growth factor I (IGF-I) levels. Although pituitary irradiation still has a role in the control of tumor size, its importance as a treatment for normalizing serum GH is being reevaluated.
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