Offender profiling and expert testimony: Scientifically valid or glorified results?

Vanderbilt Law Review

Volumn 61, Issue 1, 2008, Pages 221-260

[No Author Info available]

Author keywords

[No Author keywords available]

Indexed keywords

EID: 41349093392     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (269)

1. 2 SIR ARTHUR CONAN DOYLE, The Valley of Fear, in THE COMPLETE SHERLOCK HOLMES 229, 283 (2003).
2. For the relevant facts of this account, see JOHN DOUGLAS & MARK OLSHAKER, MINDHUNTER: INSIDE THE FBI'S ELITE SERIAL CRIME UNIT 21 (1995)
3. [hereinafter DOUGLAS & OLSHAKER, MINDHUNTER].
4. THOMAS HARRIS, THE SILENCE OF THE LAMBS 1-5 (1988);
5. THE SILENCE OF THE LAMBS (Orion Pictures 1991);
6. see also DOUGLAS & OLSHAKER, MINDHUNTER, supra note 2, at 171-72.
7. For the relevant facts of this account, see DOUGLAS & OLSHAKER, MINDHUNTER, supra note 2, at 148-56.
8. The analogy to Holmes has support from Douglas himself, who considers a comparison to the fictional sleuth "the highest compliment." Id. at 20.
9. Id. at 81. The BAU's original title was the "Behavioral Science Unit." To maintain consistency and reduce confusion, this Note employs the abbreviation "BAU" throughout. For additional information about the BAU, see the Investigative Programs Critical Incident Response Group Home Page, http://www.fbi.gov/hq/isd/cirg/ncavc.htm#bau (last visited Oct. 14, 2007).
10. DOUGLAS & OLSHAKER, MINDHUNTER, supra note 2, at 94-96.
11. See infra note 29 and accompanying text (discussing techniques of offender profiling).
12. See D. Michael Risinger & Jeffrey L. Loop, Three Card Monte, Monty Hall, Modus Operandi and "Offender Profiling": Some Lessons of Modern Cognitive Science for the Law of Evidence, 24 CARDOZO L. REV. 193, 253 (2002) (indicating that courts have generally rejected testimony frankly concerning profiling).
13. 293 F. 1013, 1013 (D.C. Cir. 1923).
14. 509 U.S. 579, 588-90 (1993) (holding that "general acceptance" is not required for scientific evidence under Federal Rules of Evidence, and that it is incumbent upon the trial judge simply to ensure testimony is based upon a reliable foundation and is relevant).
15. 526 U.S. 137, 147 (1999) (holding that Daubert applies to all expert testimony, not just scientific testimony).
16. Although Rule 702 and the Supreme Court decisions relate to federal standards, many state legislatures have adopted the same language of Rule 702, and state courts often rely on Frye, Daubert, and Kumho Tire when interpreting equivalent state rules. See, e.g., David E. Bernstein & Jeffrey D. Jackson, The Daubert Trilogy in the States, 44 JURIMETRICS J. 351, 356-65 (2004) (stating that by mid-2003, 27 states had adopted Daubert, while some states had retained Frye, and the remainder had rejected Frye but had not fully adopted Daubert).
17. Kumho Tire, 526 U.S. at 147;
18. Daubert, 509 U.S. at 598.
19. As discussed in more detail infra Subsection II.B.2, Daubert defines evidentiary reliability as scientific validity, or trustworthiness.
20. Risinger & Loop, supra note 9.
21. JOHN DOUGLAS ET AL., CRIME CLASSIFICATION MANUAL: A STANDARD SYSTEM FOR INVESTIGATING AND CLASSIFYING VIOLENT CRIMES 3-8 (2d ed. 2006).
22. CESARE LOMBROSO, CRIMINAL MAN 45, 50-57, 117 (Mary Gibson & Nicole Rafter trans., Duke University Press 2006) (1876).
23. Id. at 51-52.
24. DOUGLAS ET AL., supra note 17, at 4-6 (describing the progression from Lombroso's theories to theories that attributed criminality to defective intelligence or insanity, and eventually to multiple theories and typologies that focused on defective personalities).
25. DOUGLAS & OLSHAKER, MINDHUNTER, supra note 2, at 81.
26. See also id. at 95 (noting the initial skepticism in the "Hoover days" of the Bureau toward behavioral science and the practice of profiling). "Offender profiling" often is termed simply "profiling." The former is more precise, however, as a means of differentiating this practice from the controversial practice of racial profiling or other types of profiling in which investigators use stereotypical characteristics to pick out, for example, suspected terrorists or drug couriers. The admissibility of expert testimony related to drug courier profiles is a complex issue that is not addressed in this Note.
27. Id. at 94-96.
28. Id. at 99.
29. Douglas and Ressler began conducting these interviews in the late 1970s. Id. at 111. Typically, they would conduct their interviews whenever official business, usually conducting local training sessions, brought them near a prison holding a notable prisoner. Within a few months, the agents were able to interview several notable serial killers and would-be assassins, including Ed Kemper (murdered six college-aged women, his grandmother and grandfather, his mother, and his mother's friend), Arthur Bremmer (attempted assassination of presidential candidate George Wallace), Sara Jane Moore and Lynette "Squeaky" Fromme (attempted assassination of Gerald Ford), and Charles Manson.
30. Id.
31. Id. at 117-18.
32. The agents of the BAU recruited Ann Burgess, a professor of psychiatric mental health nursing, to assist in developing more rigorous methods of data collection and analysis. Burgess developed a fifty-seven page instrument to code responses of thirty-six prisoners, mostly serial killers, interviewed by the BAU agents. The agents also compiled detailed descriptions of each crime scene. Burgess subsequently performed analyses of the data. Id.
33. DOUGLAS ET AL., supra note 17, at 6-11.
34. Robert J. Homant & Daniel B. Kennedy, Psychological Aspects of Crime Scene Profiling-Validity Research, 25 CRIM. JUST. & BEHAV. 319, 321 (1998).
35. Id. These characteristics pose unique challenges because the offender has no preexisting relationship with the victim, so it is difficult to identify suspects and uncover leads. In addition, crimes committed across jurisdictions involve multiple law enforcement agencies, which creates difficultly in coordinating investigations and facilitating awareness of similar crimes in neighboring jurisdictions.
36. Id. at 322.
37. Id. at 322-23.
38. For example, after Douglas developed a profile for the killer of a twelve-year-old girl, police indicated that they had previously interviewed a suspect who substantially met the profile. Police were about to give him a polygraph, as the previous interrogations were unsuccessful, but based on his profile of the killer, Douglas suggested that police instead re-interview the suspect at night in a room that contained the murder weapon and stacks of boxes with the suspect's name on them. He also told the police to sympathize with the suspect and project blame onto the victim. The police followed his advice and the interrogation resulted in a full confession. DOUGLAS & OLSHAKER, MINDHUNTER, supra note 2, at 189-91.
39. Homant & Kennedy, supra note 26, at 328.
40. This is essentially a narrow application of trait theory. Unfortunately, most psychological research suggests that traits exhibit little consistency across time and situations, and that different traits do not accurately predict different personality types. Id.
41. See id. ("[C]rime scene profiling rests on the assumption that at least certain offenders have consistent behavioral traits."); see also DOUGLAS ET AL., supra note 17, at 21-22 (discussing the notion that some "criminal conduct goes beyond the actions necessary to perpetrate the crime-the modus operandi-and points to the unique personality of the offender").
42. See Homant & Kennedy, supra note 26, at 328 (noting that antisocial behavior, for instance, might "be an especially stable behavior trait for aggressive persons-whether because their personalities do not change much, the genetic contribution remains constant, or they tend to remain in aggression-fostering environments").
43. Id. at 328-29.
44. For example, the behavioral traits of a particular serial rapist must be distinguishable from the general behavioral traits of known serial rapists. Id. Otherwise, the profile could only serve to identify that a serial rapist is responsible for a given crime, but would offer no additional details to distinguish one serial rapist from another.
45. DOUGLAS ET AL., supra note 17, at 98 (describing the FBI's decision in the 1980s to develop a systematic classification by motive for murder, arson, and sexual assault).
46. See id. (identifying the Crime Classification Manual as a "motivational model for classification of homicide").
47. Id.
48. For example, murder motivated by "personal cause" includes: erotomania-motivated killing, domestic killing, argument murder, conflict murder, authority killing, revenge killing, nonspecific motive killing, extremist murder, mercy/hero homicide, and hostage murder. Id. at 93, 153-220.
49. Id. at 8-12.
50. JOHN DOUGLAS & MARK OLSHAKER, JOURNEY INTO DARKNESS 26 (1997)
51. [hereinafter DOUGLAS & OLSHAKER, JOURNEY].
52. Homant & Kennedy, supra note 26, at 321-22.
53. Id. at 331.
54. Id.
55. Id.
56. Robert Ressler & Ann Burgess, Crime Scene and Profile Characteristics of Organized and Disorganized Murderers, 54 FBI L. ENFORCEMENT BULL., Aug. 1985, at 18.
57. Id.
58. DOUGLAS ET AL., supra note 17, at 10;
59. Homant & Kennedy, supra note 26, at 332.
60. Homant & Kennedy, supra note 26, at 338 (describing an FBI study in 1981 finding that when one was used, a profile helped identify the suspect in 17% of solved cases and, according to law enforcement statements, was "of at least some help" in 83% of solved cases).
61. DOYLE, The Adventure of Wisteria Lodge, in THE COMPLETE SHERLOCK HOLMES, supra note 1, at 371, 379.
62. DOUGLAS & OLSHAKER, MINDHUNTER, supra note 2, at 198-224.
63. The first legal application arose when FBI agents created a profile of the killer responsible for the famous Atlanta child murders from 1979-1981. The profilers suggested multiple strategies for catching the perpetrator, resulting in the arrest of Wayne Williams. The district attorney then asked the profilers to assist the prosecution in developing its trial strategy. Id. at 212-17.
64. The publicity surrounding the case and the FBI's role in its prosecution resulted in national prominence for the new offender profiling program. Id. at 224.
65. Id. at 217.
66. DOUGLAS & OLSHAKER, JOURNEY, supra note 38, at 293-95.
67. The first time a member of the BAU testified as an expert witness, the testimony was not used to link the defendant to a profile nor to establish him as the killer. Instead, it was admitted strictly to refute the defense's claim that the defendant's calm behavior after the murders took place was inconsistent with behavior normally displayed by murderers. Anthoney v. State, No. A-2755, 1993 WL 13156613, at *7 (Alaska Ct. App. Feb. 17, 1993) (affirming the trial court's admission of the BAU member as an expert to "rebut an intuitive conclusion that [the defendant] wanted to exploit: that the person who committed the murders would necessarily exhibit extreme emotional symptoms").
68. This strategy is discussed in more detail infra Section III.B.
69. This Note will not present a thorough explication of linkage analysis but will instead describe the assumptions it shares with offender profiling in order to demonstrate that they rely on the same principles. For thorough discussions of linkage analysis, see Risinger & Loop, supra note 9, which criticizes linkage analysis, and DOUGLAS & OLSHAKER, JOURNEY, supra note 38, at 39, which describes Douglas's theory on signature evidence and how he applies it to link crimes.
70. See TAL GOLAN, LAWS OF MEN AND LAWS OF NATURE: THE HISTORY OF SCIENTIFIC EXPERT TESTIMONY IN ENGLAND AND AMERICA 250 (2004) (explaining that the admissibility of expert testimony was subject to two traditional evidentiary criteria: its logical relevance and helpfulness to a jury, and the qualifications of the witness).
71. 29 CHARLES ALAN WRIGHT & VICTOR JAMES GOLD, FEDERAL PRACTICE AND PROCEDURE § 6266 (Supp. 2006).
72. 293 F. 1013, 1013-14 (D.C. Cir. 1923).
73. 509 U.S. 579, 585-89 (1993).
74. See Bernstein & Jackson, supra note 13 (discussing admissibility standards currently adopted by the different states).
75. GOLAN, supra note 53, at 245.
76. Id.
77. 293 F. at 1013-14.
78. Id.
79. Id. at 1014.
80. WRIGHT & GOLD, supra note 54.
81. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 585 (1993).
82. Act of January 2, 1975, Pub. L. No. 93-595, 88 Stat. 1926.
83. Id.
84. This language has been referred to as the "helpfulness" requirement. Daubert, 509 U.S. at 591-92.
85. Compare Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987) (holding that the Frye standard did not survive the enactment of the Federal Rules), with U.S. v. Smith, 869 F.2d 348, 350-51 (7th Cir. 1989) (holding that the Frye standard did survive the enactment of the Federal Rules).
86. 509 U.S. at 587.
87. For the relevant facts of this case, see id. at 582-84.
88. Id. at 587.
89. Id. at 589.
90. The court clarifies "reliability," indicating that it means "evidentiary reliability-that is, trustworthiness." Id. at 590 n.9. Therefore, the Court concluded, in a case involving scientific evidence, evidentiary reliability is based on scientific validity.
91. Id. at 591-92.
92. Id. at 592-93.
93. Id. at 593-94.
94. Id. at 594-95.
95. Id. at 600 (Rehnquist, C.J., concurring in part and dissenting in part).
96. 526 U.S. 137, 141 (1999).
97. Id.
98. See Daubert, 509 U.S. at 587-88 (noting that Rule 702's "basic standard of relevance . . . is a liberal one" and that Frye's "rigid" general acceptance requirement is "at odds with the 'liberal thrust' of the Federal Rules").
99. But see id. at 589 (emphasizing the importance of the "gatekeeping" function in ensuring that scientific testimony "is not only relevant, but reliable").
100. 522 U.S. 136, 142 (1997).
101. Id.
102. 528 U.S. 440, 442 (2000).
103. David E. Bernstein, Frye, Frye, Again: The Past, Present, and Future of the General Acceptance Test, 41 JURIMETRICS J. 385, 386 (2001). Kumho Tire broadened the Daubert test beyond Frye by applying it to technical and specialized knowledge, as well. At the same time, later courts viewed Daubert as a more stringent test than Frye in that it required judges to apply "exacting scrutiny."
104. FED. R. EVID. 702.
105. WRIGHT & GOLD, supra note 54.
106. Id.
107. Id. For instance, an expert testifying about polygraph results relies on a theory that certain metabolic processes are affected when someone tells a lie, and that these changes can be measured and interpreted accurately. A judge can evaluate this theory under the traditional Daubert factors for scientific testimony to determine if it is valid. On the other hand, a police officer testifying about the meaning of code words in a drug transaction-which qualifies as specialized knowledge-relies on a theory that drug dealers use code words to disguise their true intent. A judge can evaluate the validity of this theory using logic, common sense, and other relevant considerations.
108. Id.
109. Id.
110. 509 U.S. 579, 596 (1993).
111. Novels include: HERB CHAPMAN'S THE BOOK OF CAIN (2001); THOMAS HARRIS'S HANNIBAL (1999), HANNIBAL RISING (2006), RED DRAGON (1981), and THE SILENCE OF THE LAMBS (1988);
112. ALEX KAVA'S AT THE STROKE OF MADNESS (2003), A NECESSARY EVIL (2006), A PERFECT EVIL (2000), SOUL CATCHER (2002), and SPLIT SECOND (2001);
113. and MARIAH STEWART'S A DEAD END: A NOVEL (2005), just to name a few. Movies include: HANNIBAL (MGM 2001), MANHUNTER (De Laurentiis Entertainment Group 1986), MINDHUNTERS (Dimension Films 2005), RED DRAGON (Universal Pictures 2002), SILENCE OF THE LAMBS (Orion Pictures Corp. 1991), TAKING LIVES (Warner Bros. Pictures 2004). Television programs include: Body of Evidence: From the Case Files of Dayle Hinman (CourtTV television broadcast 2002-present), Criminal Minds (CBS television broadcast 2005-present), and Profiler (NBC television broadcast 1996-2000).
114. For a discussion of Ann Burgess's affiliation with the BAU, see supra note 24.
115. See David Canter, Offender Profiling and Investigative Psychology, 1 J. INVESTIGATIVE PSYCHOL. & OFFENDER PROFILING 1, 4-6 (2004) (discussing psychological studies that call into question these fundamental assumptions).
116. David Canter et al., The Organized / Disorganized Typology of Serial Murder: Myth or Model?, 10 PSYCHOL. PUB. POL'Y & LAW 293, 296 (2004) ("[Since the] initial limited sample of thirty-six offenders, no subsequent test of the reliability [of the BAU's conclusions] can be found in the academic literature.");
117. see supra text accompanying note 23.
118. Id.
119. Id. Canter has also criticized the study's methodology for lacking a theoretical foundation, failing to use the scientific method, and simply speculating about differences among people.
120. See id. for a discussion of these criticisms.
121. Id.
122. Id. at 293.
123. Id. at 296-97.
124. Id. at 302.
125. Id. at 302-04.
126. Id. at 313.
127. Id. at 313, 315.
128. Id. at 296 (summarizing criticisms from several authorities).
129. DOUGLAS ET AL., supra note 17, at 22.
130. DOUGLAS & OLSHAKER, JOURNEY, supra note 38, at 31.
131. People v. Duvardo, No. A098935, 2004 WL 2458585, at *16 (Cal. Ct. App. Nov. 3, 2004) (affirming trial court's admission of offender profiling testimony).
132. Because not all cases report the expert's methodology, this Note includes cases in which the expert used the jargon of offender profiling (e.g., by describing a crime scene as organized or disorganized). This Note's criteria excludes cases in which law enforcement used a profile as a basis for probable cause (e.g., drug courier profiles), an expert described a general profile that was not developed by analyzing the crime scene (e.g., most sex offender profiles), or an expert in crime scene analysis opined on an offender's future dangerousness.
133. Jurisdictions that have rejected sex offender profiling offered by the prosecution include: the Ninth Circuit, the U.S. Court of Military Appeals, and Massachusetts. See, e.g., United States v. Gillespie, 852 F.2d 475, 479-80 (9th Cir. 1988);
134. United States v. Banks, 36 M.J. 150, 152 (C.M.A. 1992);
135. Commonwealth v. Poitras, 774 N.E.2d 647, 651 (Mass. App. Ct. 2002).
136. Jurisdictions that have rejected sex offender profiling offered by the defendant include: the Eighth Circuit, Connecticut, Georgia, Iowa, Kentucky, Louisiana, Minnesota, Missouri, New Hampshire, New York, Tennessee, and Texas. See, e.g., United States v. Pierre, 812 F.2d 417, 420 (8th Cir. 1987);
137. State v. Person, 20 Conn. App. 115, 124 (1989), aff'd, 568 A.2d 796 (1990);
138. Gilstrap v. State, 215 Ga. App. 180, 181 (1994);
139. State v. Hulbert, 481 N.W.2d 329, 334 (Iowa 1992);
140. Pendleton v. Commonwealth, 685 S.W.2d 549, 554 (Ky. 1985);
141. State v. Armstrong, 587 So. 2d 168, 170 (La. Ct. App. 1991);
142. State v. Fitzgerald, 382 N.W.2d 892, 896 (Minn. Ct. App. 1986);
143. State v. Elbert, 831 S.W.2d 646, 648 (Mo. Ct. App. 1992);
144. State v. Cavaliere, 140 N.H. 108, 114 (1995);
145. People v. Berrios, 568 N.Y.S.2d 512, 515 (N.Y. Crim. Ct. 1991);
146. State v. Campbell, 904 S.W.2d 608, 616 (Tenn. Crim. App. 1995);
147. Williams v. State, 649 S.W.2d 693, 695-96 (Tex. Ct. App. 1983).
148. See, e.g., Brunson v. State, 79 S.W.3d 304, 305 (Ark. 2002) (reversing trial court's admission of testimony from domestic violence expert that placed defendant in a profile of batterers who become murderers);
149. Penson v. State, 474 S.E.2d 104, 106 (Ga. App. 1996) (reversing the trial court's decision to admit expert testimony describing an FBI serial arsonist profile);
150. Commonwealth v. Day, 569 N.E.2d 397, 400 (Mass. 1991) (reversing trial court's admission of child abuse expert's testimony about family characteristics that are related to child abuse);
151. Kaps v. State, No. 05-97-00328-CR, 1998 WL 209060, at *8 (Tex. App. 1998) (affirming trial court's refusal to admit expert testimony that defendant did not fit the profile of a typical abusive man);
152. Ryan v. State, 988 P.2d 46, 56 (Wyo. 1999) (reversing trial court's admission of testimony from an expert in battered woman syndrome indicating that the defendant matched the profile of offenders who commit separation violence).
153. See infra Subsections III.B.1-2.
154. Appellate courts affirmed trial court decisions to exclude expert testimony on offender profiling introduced by the defense in the decisions identified by this author. With respect to expert testimony on offender profiling introduced by the prosecution, ten of eleven trial courts permitted the testimony, and only three of those ten were reversed by the appellate court. See infra Subsections III.B.1-2, III.C, for discussion and citation to all of these cases.
155. D. Michael Risinger, Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left on the Dock?, 64 ALB. L. REV. 99, 99, 109-10 (2000) (indicating that 92% of prosecution experts in federal criminal trials survive challenges from opposing counsel, compared to only 33% of defense experts).
156. See supra text accompanying note 1.
157. See infra Subsections III.B.1-2.
158. For a discussion of these decisions, see infra Subsection III.B.2.
159. In the third case, People v. Tuite, No. D044943, 2006 WL 3628819, at *8-9 (Cal. Ct. App. Dec. 14, 2006), discussed infra Section III.C, the trial court permitted the defendant to introduce expert offender profiling testimony, but the prosecution did not contest its admissibility.
160. 774 P.2d 252, 257 (Idaho 1989).
161. Id.
162. Id.
163. 78 S.W.3d 817, 823, 836 (Tenn. 2002).
164. Id. at 823, 830.
165. Id. at 835.
166. Id. ( quoting General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997)).
167. A fourth case discusses offender profiling testimony offered by a defendant, but does not rule on its admissibility. In State v. Spann, 513 S.E.2d 98 (S.C. 1999), the Supreme Court of South Carolina reversed a trial court's decision to reject a motion for a new trial by a defendant convicted of sexual assault, murder, and burglary and sentenced to death. At the new trial hearing, the defendant presented the testimony of a crime scene analyst asserting that the perpetrator of the murder for which the defendant was convicted was responsible for two similar murders, and that the profile of the perpetrator did not match that of the defendant. The trial court denied the motion, holding that this evidence was available at the time of the defendant's original trial eighteen years earlier. The South Carolina Supreme Court ordered the new trial on the basis that the similarities between the crime scenes, which suggested they were committed by the same perpetrator, could not have been discovered by the exercise of due diligence.
168. Id. at 621-22.
169. After pleading a reduced sentence from the death penalty to a life sentence, the defendant was paroled in 2006. For a complete description of this case, see Keith Morrison, A 20-Year Quest for Freedom, MSNBC.COM, June 11, 2007, http://www.msnbc.msn.com/id/19161103/.
170. For the relevant facts of this case, see 112 Cal. Rptr. 2d 479, 479-83 (Cal. Ct. App. 2001).
171. Id. at 488.
172. Id. at 482, 486.
173. Id. at 485.
174. Id.
175. Id. at 486. The court suggested that the expert testimony would have been permitted if it was proffered to disabuse the jury of common misconceptions about how rape is committed. Rather than testifying that certain behaviors are typical of sex offenders, the expert could have testified that rapists exhibit a variety of behaviors and that there is no typical sex offender.
176. Id. at 487.
177. See State v. Garcia, No. 79917, 2002 WL 1874535, at *7 (Ohio Ct. App. Aug. 15, 2002) (holding that trial court's admission of crime scene analyst's testimony that an arson was committed for profit was harmless error, and reasoning that the testimony invaded the province of the jury without addressing its admissibility under Ohio's version of Rule 702);
178. State v. Roquemore, 620 N.E.2d 110, 116-17 (Ohio Ct. App. 1993) (reversing trial court's decision to admit offender profiling testimony, asserting that the crime was "disorganized" and indicated an anger-retaliatory motivation because it is inherently prejudicial and the witness based his opinion "on his own 'studies' rather than upon an accepted scientific basis");
179. State v. Haynes, No. 4310, 1988 WL 99189, at *2-7 (Ohio Ct. App. Sept. 21, 1988) (reversing trial court's admission of expert offender profiling testimony-presented by the same expert that testified in Roquemore-because it is inherently prejudicial to the defendant and the State did not establish that it is scientifically reliable or would assist the jury).
180. 599 N.E.2d 783, 784-85 (Ohio Ct. App. 1991).
181. Id. at 785.
182. 35 M.J. 64, 65 (C.M.A. 1992).
183. Id. at 69.
184. Id. at 65-66.
185. Id.
186. Id. at 66.
187. Id. at 66-67.
188. Id. at 67. The BAU is a division of the National Center for the Analysis of Violent Crime.
189. Id. at 68.
190. Id.
191. See id. at 66-67 ("[T]he perpetrator in the instant case was 'an organized individual, an individual that had planned and spent some time in the preparation of this crime.' ").
192. 58 P.3d 979, 983 (Colo. 2002).
193. Id. at 985. The circumstantial evidence included hundreds of writings and drawings conveying a hatred of women, some of which accurately depicted aspects of the crime scene, an admission from the defendant that he had thought about committing the kind of crime that had occurred, and the defendant's possession of specialized weapons that were necessary to commit the crime.
194. Id. at 983-84.
195. Id. at 985.
196. Id.
197. Id.
198. Id. at 985-87.
199. Id. at 987, 992.
200. Id. at 987.
201. Id. at 985.
202. Id. at 988.
203. Id. at 988-89.
204. Id.
205. Id. at 989.
206. Id. at 993.
207. Id.
208. (citing Salcedo v. People, 999 P.2d 833, 838 (Colo. 2000)).
209. Id. at 993-94.
210. Id. at 1010 (Bender, J., dissenting).
211. Id. at 993-94. Dr. Meloy was almost certainly applying the methodology developed by the BAU, or a technique inspired by it, because he used terminology such as "organized" and "disorganized," jargon which is unique to the BAU technique.
212. On January 22, 2008, a Colorado judge released Timothy Masters from prison based on new DNA evidence indicating that someone else committed the crime. Eliott C. McLaughlin, Masters: Cop's Big Ego Stole Half My Life, CNN, Jan. 24, 2008, http://www.cnn.com /2008/CRIME/01/23/masters.case/.
213. A few days later, prosecutors asked a judge to dismiss the murder charge pending against Masters. See Eliott C. McLaughlin, D.A.: Dismiss Murder Charge Against Tim Masters, CNN, Jan. 25, 2008, http://www.cnn.com/ 2008/CRIME /01/25/masters.charges/index.html.
214. The vacated conviction and dropped charges followed an inquiry by special prosecutors, which revealed that statements of a renowned FBI profiler disagreeing with Dr. Meloy's findings were withheld from defense attorneys. See Eliott C. McLaughlin, Convicted by Doodles, Masters if Freed by DNA, CNN, Jan. 25, 2008, http://www.cnn.com/2008/CRIME/01/22/masters.case/ index.html.
215. The new evidence also suggests that the FBI profile on which Dr. Meloy based his testimony either never existed or was a fraudulent profile created with the purpose of flushing out Masters. See Letter from Maria Liu and David Wymore, Att'ys for Timothy Masters, to Michael Goodbee, Assistant Dist. Att'y, and Chief Deputy Dist. Att'y, Tom Quammen, (Oct. 23, 2007), http://i.a.cnn.net/cnn/2008/ images/01/16Aetter.pdf.
216. This case illustrates that admitting expert offender profiling testimony can result in wrongful convictions, especially when it is the primary evidence for the prosecution's case. Moreover, this case also suggests that defense attorneys may face significant obstacles to obtaining favorable expert offender profiling evidence.
217. In Toney v. State, No. 01-94-00239-CR, 1996 WL 183411, at *4 (Tex. Ct. App. Apr. 18, 1996), the court held that the failure of defendant's counsel to object to offender profiling testimony did not render counsel ineffective because the expert never concluded that the defendant matched the profile, even though the defendant did match in many respects. Toney is also noteworthy because both the trial and the appellate court appeared to accept the offender profiler's testimony that in her "career of sixteen years in police work, [she has] found that profiling is truly a science."
218. Id. at *2.
219. In Simmons v. State, 797 So.2d 1134, 1158 (Ala. Crim. App. 1999), the Alabama Appeals Court affirmed the trial court's admission of offender profiling testimony to establish that a murder was sexually motivated. Applying Daubert and Kumho Tire, the court determined that offender profiling is reliable as specialized knowledge because the expert testified that "research has been published within the field and subjected to peer review." Simmons, 797 So. 2d at 1155. Furthermore, the court found that offender profiling is generally accepted because the expert testified that "numerous law enforcement agencies rel[y] upon crime-scene analysis."
220. Id. Both the Toney and Simmons courts apparently accepted the experts' bare assertions that offender profiling is a science, rather than conducting an actual inquiry into the question.
221. See also People v. Duvardo, No. A098935, 2004 WL 2458585, at *15-16 (Cal. Ct. App. Nov. 3, 2004) (affirming the trial court's admission of offender profiling testimony, and accepting expert's testimony that it was not a "fledging scientific technique," it was not "junk science," and it was as "old as Sherlock Holmes");
222. State v. Patton, 120 P.3d 760, 785 (Kan. 2005) (affirming trial court's admission of offender profiling testimony because it represented pure opinion testimony and was not subject to the requirements of frye);
223. State v. Carlson, Nos. 30435-0-II, 30435-0-II, 2006 WL 1237279, at *25 (Wash. Ct. App. May 10, 2006) (affirming trial court's admission of offender profiling testimony under the Frye standard).
224. See Risinger & Loop, supra note 9, at 251 (arguing that the FBI has the data to confirm or disconfirm its claims regarding linkage analysis, and it should not benefit from its "own failure to aid the generation of defensible data").
225. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 601 (1993) (Rehnquist, C.J., dissenting).
226. Dale A. Nance, Reliability and the Admissibility of Experts, 34 SETON HALL L. REV. 191, 208 (2003).
227. See Henry F. Fradella et al., the Impact of Daubert on the Admissibility of Behavioral Science Testimony, 30 PEPP. L. REV. 403, 444 (2003) ('There appears to be only one area in which Daubert is not being rigorously applied to behavioral science testimony. Courts are highly deferential to the 'expert opinions' offered by law enforcement officers based on their years of experience in the field when they offer opinions with regard to modus operandi or other aspects of 'the working criminal mind.' Explorations into their theoretical knowledge base, as well as the validity and reliability of both their methodologies and their conclusions, appear to have escaped Daubert review." (citations omitted));
228. Joelle A. Moreno, What Happens When Dirty Harry Becomes an (Expert) Witness for the Prosecution?, 79 TUL. L. REV. 1, 5-6 (2004) (evaluating post-Daubert case law).
229. Risinger, supra note 113.
230. See Nance, supra note 167, at 207 (suggesting that deference to non-scientific expertise is inappropriate due to the lack of checks on this discipline).
231. For example, the state investigator in Robbie, 112 Cal. Rptr. 2d 479, 482-83 (Cal. Ct. App. 2001), and the forensic psychologist in Masters, 58 P.3d 979, 985-87 (Colo. 2002), both described crime scene analysis using the FBI's organized/disorganized jargon, thus indicating the FBI's influence on their training.
232. For examples of experts citing the self-validating studies or asserting the veracity of offender profiling, see the discussion of Toney and Simmons, supra note 164.
233. Moreno, supra note 168, at 32.
234. No. D044943, 2006 WL 3628819, at *2-5 (Cal. Ct. App. Dec. 14, 2006).
235. Id. Tracy and Tuite were friends ten years before the girl's death.
236. Id. at *8-9. O'Toole based her conclusions on a variety of factors. She testified that the victim was targeted "because (1) of six people in the house, only she was attacked; (2) the attacker had to pass other rooms to reach her bedroom; (3) there was no evidence of sexual assault or theft;" and (4) her injuries were stab wounds all located above her chest.
237. Id. at *8.
238. Id. at *1.
239. Id. at *9.
240. Id.
241. Id. at *1. The prosecution's primary evidence was samples of blood taken from Tuite's tshirt that matched the victim's DNA, but there were indications that cross-contamination could have occurred between Tuite's belongings and officers who investigated the crime scene.
242. Id. at *16.
243. Id.;
244. see also Katherine Ramsland, Interview with Gregg O. McCrary-Violent Crimes Expert, available at http://www.crimelibrary.eom/ criminal_mind/profiling/mccrary/3.html (last visited Dec. 27, 2007) (describing the ICIAF as an organization created by a group of FBI-trained profilers who conduct training sessions, establish standards, and certify profilers).
245. Tuite, 2006 WL 3628819, at *16.
246. Id.
247. Id. at *19.
248. See Interview with Gregg McCrary, Defense Expert Witness, State v. Parker (Oct. 27, 1998), available at http://www.corpus-delicti.
249. Canter et al., supra note 94, at 295.
250. Id.
251. Id.
252. See, e.g., Donald Q. Cochran, Alabama v. Clarence Simmons: FBI "Profiler" Testimony to Establish an Essential Element of Capital Murder, 23 LAW & PSYCHOL. REV. 69, 89 (1999) ("Because of the status of the FBI's Profiling and Behavioral Assessment Unit as the only Organization in the world that specializes in the investigation of bizarre and brutal crimes, testimony by members of the unit will always be powerful evidence.").
253. People v. Robbie, 112 Cal. Rptr. 2d 479, 482-83 (Cal. Ct. App. 2001);
254. Masters v. People, 58 P.3d 979, 985-87 (Colo. 2002).
255. Ramsland, supra note 182.
256. Christopher Slobogin, The Structure of Expertise in Criminal Cases, 34 SETON HALL L. REV. 105, 108-09 (2003).
257. Id.
258. Id. at 110.
259. Id. at 124.
260. In Scheffer, the Court rejected a defendant's contention that stringent admissibility standards prejudicially prevented the introduction of expert polygraph testimony to bolster his credibility, reasoning that the defendant could have bolstered his credibility by testifying in his own defense. 523 U.S. 303, 317 (1998).
261. Moreno, supra note 168, at 50.
262. Id.
263. Id.
264. Id. at 54.
265. Id. (quoting Fed. R. Evid. 702 advisory committee note) (internal quotations omitted).
266. See id. (citing DNA evidence as an example of an evidentiary method "derived from a scientific field of well-established validity").
267. Such unintentional misrepresentation is more likely to occur as practitioners become further removed from the individuals who originally developed the discipline.
268. Dr. Park Dietz, a highly regarded forensic psychiatrist and expert witness, made this assertion during his pretrial testimony in the civil lawsuit against O.J. Simpson. He stated that the best known work in crime scene analysis is the Crime Classification Manual, then went on to say that profiling is not a new scientific technique and should not be excluded by the trial court under the Frye standard. See CourtTV Case Files, O.J. Simpson Transcript (Nov. 7, 1996), available at http://www.courttv.com/casefiles/ simpson/transcripts/nov/nov07.html.
269. DOUGLAS ET AL., supra note 17, at 22 (indicating that "there have been no systematic efforts to validate [the] profile-derived classifications" described by the Crime Classification Manual).