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

International Journal of Law and Psychiatry 33 (2010) 184–191

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International Journal of Law and Psychiatry

The admissibility of offender profiling in courtroom: A review of legal issues and court opinions Dario Bosco a,⁎, Angelo Zappalà a,b, Pekka Santtila b a b

Centre of Forensic Science, Turin, Italy Åbo Akademi University, Åbo (Turku), Finland

a r t i c l e

i n f o

Keywords: Offender profiling and crime linking Expert psychological testimony Legal and court psychology

a b s t r a c t 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. © 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 scientific 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 scientific 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 scientific community for reference, what the scientific 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 ⁎ Corresponding author. Via F. Palizzi, 75. 80127 Napoli, Italy. E-mail address: [email protected] (D. Bosco). 0160-2527/$ – see front matter © 2010 Elsevier Ltd. All rights reserved. doi:10.1016/j.ijlp.2010.03.009

considered applicable. With regard to this matter, the judgment specifies that the general acceptance from the scientific community cannot be read like a precondition for the admissibility of scientific evidence. 5. Standard. The Court identifies 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 scientifically reliable must be fit 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 Daubert1 Test must be and can be applied to soft sciences and to the witness indicated in the F.R.E. 7022. The central point of the opinions clarifies that the Courts, in their gate keeping role regarding the admissibility of scientific opinions, should apply the principles pointed out by the Daubert Test for all expert witness and types of scientific evidence. 1

Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S 579. 1993. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.(F.R.E. 702, 2009). 2

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So, after the trilogy “Daubert, Joiner3, Kumho4” 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 scientific 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 profiling is scientific evidence and if offender profiles should be admitted in the Courtroom as scientific evidence. Between the end of 1980's and the beginning of 1990's, offender profiling 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 field of offender profiling and in the field of crime scene analysis. The Courts' opinions have been applied to three specific types of offender profiling 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 profile 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 specifically the crime scenes, the modus operandi, the characteristics of the victim and so called signature behaviors. Through these three types of consultations offender profiling 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 field 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 profiling quoting some of the most meaningful opinions in this forensic field. 2. The review of American court opinions. 2.1. Motivational analysis An interesting opinion concerning the admissibility of Motivational 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 profilers. 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 testified that the murder was sex-related. Simmons's appeal was based on claiming that the first degree Court had made a mistake in allowing the special agent to testify on the sex motivation of the crime. The Court of Appeal justified its decision with regard to the matter as follows: Initially, we find it imperative to note that the evidence offered through expert testimony was not “profile” testimony. “Profile” evidence attempts to link the general characteristics of serial

3 4

General Elec. Co. V. Joiner.522 U.S. 136. 1997. Kumho Tire Company, Ltd. V. Carmichael. Supreme Court of U.S.A. 1999, 526, U.S.137.

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murderers to specific 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 fields of victimology and crime-scene analysis constitute reliable specialized knowledge; whether the F.B.I. agent is an expert within these fields; and whether the subject matter of his testimony is relevant and assists the trier of fact in this case. […] F.B.I. agent testified 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 officers are qualified to give their opinion regarding their field of expertise. Thus, we conclude that the expert testimony adequately established that crime-scene analysis and victimology are reliable fields of specialized knowledge and that, based upon his studies and experiences in these fields, 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 gratification while committing the offense was a critical issue of the case, and expert's testimony was probative on that issue. The expert offered observations 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 justified 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 fight with his mother and stepfather just hours before the crime. The expert testified that he had worked as a special agent for the Federal Bureau of Investigation (FBI) for approximately twenty-five 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 scene” and he testified that criminals usually commit disorganized violent crimes as a result of some “precipitating stresser, [or] stressful event” in the criminal's life. […]

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Also he testified that the perpetrator in this case spent a fair amount of time at the crime scene “trashing” the place to make it look like a burglary or a “for profit” motive. […] 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 “gatekeeping” obligation on the trial court to “ensure that any and all scientific testimony ... is not only relevant, but reliable.” The trial court correctly reasoned that such nonscientific 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 scientific 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 nonscientific 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 officials 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 dixit” of the expert. Moreover, we find that the FBI's study revealing a seventy-five to eighty percent accuracy rate for crime scene analysis lacks sufficient 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 sufficient 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 profiling 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 fire was accidental and that she tried to save her girls, but could not because of the fire's intensity. One of arguments behind the appeal was that the trial Court would have made an error when it allowed a “crime scene analyst” to testify about the motivation of the crime based on the crime scene analysis, and to provide opinions tantamount to “profiling” for consideration by the jury. The Court of Appeal wrote: In the case at bar, we first note that neither McCrary nor Saunders testified about anything other than the charge of arson. McCrary testified the fire was arson and Saunders testified that Garcia had a financial motive for committing arson. McCrary testified that though he regards himself as a criminal profiler, 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 fire. 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 testified that he is a forensic auditor and that in that capacity, he reviews information to determine whether there is a financial motive for the commission of a particular crime. Saunders told the jury that, based upon his review of Garcia's financial situation before the fire, he believed that she “did have a financial motive” to commit arson. According to Garcia, McCrary's and Saunder's testimony was highly improper

because they should not have been qualified as experts nor allowed to invade the province of the jury by stating that it was arson for profit and that Garcia had a financial motive for setting the fire. 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 profile evidence The first case concerning Modus Operandi or Profile Evidence that we will consider refers to 1993 and is State v. Roquemore (85 Ohio App. 3d 448. 620 N.E. 2d 110). Defendant–appellant, 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 profiling. His expert opinion is about the motivation of the rape. The expert classified the crime scene as disorganized, and he described the rape as an anger–retaliatory rape. Defendant raised five 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 profiler.” The Court so decided: The prosecution's expert witness testified 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 testified as a “profilist.” He described “profiling” as: 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 assessment” then involves an analysis of whether the crime scene falls into patterns of “known” violent behaviour that the witness claims to have studied in the past and, if so, identifying and labelling such behaviour. The witness testified that the crime scene was “disorganized”[…] The witness classified this case as fitting 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 testified only concerning the “typical” crime scene pattern and the “typical” violence associated with such a crime scene. The witness did not interview or evaluate the defendant or “profile” a specific person. He profiles 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 testified about only the generalities and these generalities and typical facts rather than specific facts tend to place the defendant into a stereotype. […]This type of character evidence is inadmissible at least unless the defendant has first put his character at issue and probably not even then. Since admission of the opinion evidence was prejudicial error, defendant's first 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 first related to an evaluation by a forensic psychiatrist and the second one by a profiler or forensic psychologist.

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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 defined 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 specifically 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 qualified 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 “high” risk that Mr. Thomas would re-offend if released pending trial insufficiently 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 five 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 insufficiently reliable. The government's motion for detention was denied. [Post Daubert. Excluded in part and Admitted in part.]. 2.3. Linkage analysis, signature and profile evidence The first 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 first 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 first degree murder. The State claimed that these were “serial” murders. 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, testified 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 reliability, accuracy and admissibility of certain scientific tests. See, e.g., Frye v. United States, 293 F. 1013 (D.C.App.1923) (lie-detector

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test). Agent Douglas, on the other hand, was providing an expert opinion based upon his knowledge and experience in the field 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 “specialized” only 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 qualified 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 “signature” aspects of the crime, but would not allow the introduction of “profile” evidence. “Profile” evidence is that which attempts to link the general characteristics of serial murderers to specific 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 youthful” impermissibly implicated Pennell, who then was 32 years old. Upon examining the context of the comment, however, we are satisfied that Douglas' statement was not improper. The word “Youthful” was in reference to the criminal experience of the perpetrator rather than his age. Thus, under all of the circumstances we are satisfied that Douglas did not impermissibly interject “profile” evidence 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 first degree murder and the aggravated first 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, filled out by local law enforcement officers, listing the various characteristics of homicides in Washington and the nation respectively. The trial court found that the expert testimony referring to HITS and VICAP did not involve novel scientific 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 scientific 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 find 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 quantified terms, though Douglas testified as to the number of cases on VICAP and Keppel testified as to the number of cases on HITS. Russell maintains, however, that by specifying the extent of these databases, Keppel and Douglas implicitly testified that Russell was guilty as a matter of mathematical probability. We first 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

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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-quantifiable 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 first degree robbery and kidnapping. There was no significant 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 nonexpert 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 determine from the nature of a crime the kind of person who may have committed it in order to help investigators find possible suspects. He testified 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 testified that the items in defendant's room showed a “very fruitful fantasy life” that 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 Zorro” test). 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 fled by car. The criminal in this case used a knife in an open store; he arrived and fled 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 sufficiently great to make evidence of the first crime admissible in the trial of the second. There is no mark of Zorro. We affirm. [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. 1999–745 A.2d 509. N.J. 2000.). This opinion is one of the most important regarding the

applicability of offender profiling as scientific evidence in trial. The opinion concerns the reliability of the technique of crime linking and offender profiling. 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 officer 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 fifteen similarities. The expert's report discussed ritualistic, or signature, behavior of the violent offender, as follows: The violent offender who repeats his offenses typically demonstrates a second type of behavior that is termed “Ritualistic” behavior. Such behavior is frequently referred to as the “Signature” of 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 gratification. The expert concludes that the crimes committed against both victims were anger-motivated, and that the offender demonstrated anger through the following identified “ritualistic” or “signature” behavior in both crimes: 1. 2. 3. 4. 5.

Bites to the lower chin; Bites to the lateral left breast; Injurious anal penetration; Brutal facial beating; 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, qualified 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 testified “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 scientific 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 behaviour 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 sufficiently reliable for admission in this capital murder prosecution. The State argues that expert linkage analysis testimony has been admitted in other jurisdictions as sufficiently reliable like in Pennell v. State, 602 A.2d 48 (Del.Supr.1991).However those cases

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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 significant difference in the status of each victim. There are also differences in the type of assault. The expert testified 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 difficult task of criminal investigation. We are not persuaded, however, that these techniques are sufficiently reliable for an expert in those fields 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 sufficiently reliable to be admitted as expert evidence. The Appellate Division observed that expert testimony was essentially “ultimate issue” evidence. 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 sufficient scientific 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 scientific knowledge. The field of linkage analysis is not at a “state of the art” such that his testimony could be sufficiently reliable. See Kelly, supra, 97 N.J. at 197, 478 A.2d 364 holding 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 field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; (3) the witness must have sufficient expertise to offer the intended testimony. In this case, we are concerned with the second prong of the test, the scientific 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 scientific reliability of DNA testing. Moreover, linkage analysis is a field 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 pattern” that 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 inflicted 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

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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 matters” that could be considered commonplace or conduct that could be accounted for commonsensical. Our concern is that a fact finder's “uncritical acceptance” of expert testimony can becloud the issues. We have no sense that expert suggestions are counterintuitive or will receive uncritical acceptance. Stripped of its scientific mantra, the testimony is nothing more than a description of the physical circumstances present. The judgment of the Appellate Division is affirmed. [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 profiling like scientific 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 field of forensic science including criminal profiling.

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 scientific 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 scientific 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 scientific 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 scientific qualifications 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 field of knowledge does not have to be generally accepted before it can be admitted, and, besides, it must be sufficiently 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 specific field of offender profiling, in R. v. Stagg, (U.K. Central Criminal Court, 121, 1994), the prosecutor sought to introduce in Court an offender profiling expert to prove the correspondence between the criminal profiling of the killer that had been prepared during the investigation and the psychological profile of the suspect charged for that murder. The Court refused to admit the evidence with this opinion: The notion that a psychological profile 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 profiling as properly admissible in proof of identity. […] There were doubts as to whether psychological profile evidence had achieved widespread acceptance or had been adequately established as to be sufficiently reliable like scientific evidence. [Excluded].

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In R v. Gilfoyle, (EWCA Crim 81, 2000), the accused of murder sought to admit in Court and expert in psychology and criminal profiling 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 field, 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 scientific community as being able to provide accurate and reliable opinion. This accords with the English approach […] And so the present academic status of psychological autopsies is not, in our judgment, such as to permit them to be admitted 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 reflects the U.S.A.'s trend. For that reason Canada has, more than other countries, opinion about admissibility of offender profiling in court. The most important rule on offender profiling 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 profile of the perpetrator of the first three complaints would likely be that of a pedophile, while the profile 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, the limitations on the use of this type of evidence require that the evidence in this case be excluded. Admission of expert evidence 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 qualified expert. […]The trial judge was not satisfied that the characteristics associated with the fourth complaint identified 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 finding that the profile of a pedophile or psychopath has been standardized to the extent that it could be said that it matched the supposed profile of the offender depicted in the charges. The expert's group profiles were not seen as sufficiently 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 findings 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 testified that the perpetrator had staged the crime scene to deflect suspicion from him, and that he had a specific 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, first, 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 first category as “crime scene evidence” and the second as “criminal profiling.” 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 find 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 exemplifies 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 profiling 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 profiling evidence. 3.2.2. The criminal profiling evidence Accepting that criminal profiling 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 “WHAT” and matters related to the motivation or characteristics of the offender, the “WHY” or 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 characterization of the evidence answers the question on admissibility. I am simply observing that expert opinion testimony about “WHY” or

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“WHO” usually raises more concerns. These concerns relate most frequently to two aspects of the Mohan test for admissibility: the requirement that the evidence be sufficiently 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 profiling, 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 profiling is a novel field of scientific evidence, the reliability of which was not demonstrated at trial. To the contrary, it would appear from her limited testimony about the available verification of opinions in her field of work that her opinions amounted to no more than educated guesses. As such, her criminal profiling evidence was inadmissible. The criminal profiling 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 scientific 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 profiling 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 profiling 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 scientific 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 fields of psychiatry, psychology and criminology and, in the light of the opinions above, it is highly probable that the offender profiling technique and methodology, like other types of scientific evidence, will be judged on its scientific 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 fields of forensic science and scientific evidence. It can be affirmed that the opinions above and this new trend will be the general rule for admissibility of all the expert witness in the

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field of psychology and psychiatry. According to Gudjonsson and Copson (1999), of ninety studied trials in U.K., only two profilers were admitted to the Court, and according to Gregory (2005), profilers have never been admitted as scientific experts in British Courts for lack of reliability and scientific of their knowledge. So there is no place anymore for witnesses who claim to testify as experts in the fields of offender profiling and in psychology and psychiatry too, only for their ipse dixit; and it seems probable that the Courts will exclude scientific evidence built by this methodology. Who intends to use offender profilers 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 profiling is science and not art. The scientific community that deals with offender profiling 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 profiling. Only in this way this knowledge can constitute novel and scientific evidence. If this will not happen it will be more and more difficult for profilers to be admitted in courtroom as experts and for criminal profiling to find useful applications in the world of the forensic sciences.

References Giannelli, P. C. (2006). Understanding evidence. LexisNexis. Gregory, N. (2005). Offender profiling: A review of the literature. The British Journal of Forensic Practice, 7(3), 29−34. Gudjonsson, G. H., & Copson, G. (1999). The role of the expert in criminal investigation. In J. L. Jackson & D. A. Bekerian (Eds.), Offender profiling, 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.