PSYCHOLOGICAL PROFILING:

TENUOUS VALIDITY AS EVIDENCE FOR CONVICTION

IN U.S COURTROOMS

Emily Charrier

Robert Miller

Quick Yeates-Burghart

Psychology and Law

University of Oregon

Introduction..........................................................................................................................3

Argument.............................................................................................................................4

Limitations of Small Data Pool.......................................................................................4

Non-standardized Profiling Methodology.......................................................................7

Diversity of Background Fields lead to lack of Communication Between Profilers......8

Consequence of Evidence..............................................................................................11

Opinion on Ultimate Issue.............................................................................................12

Constitutionality & Probable Cause..............................................................................12

Conclusion.........................................................................................................................13

References..........................................................................................................................15

2

INTRODUCTION

Psychological profiling has gained attention as a double-edged sword in U.S

courtrooms. Popular media has cast it as a solid, predicting force for the behavioral

patterns and actions of violent criminals. The scientific community and subsequent

literature contest the claims of objective, scientific validity within a courtroom setting.

Whether profiling should be allowed into a courtroom as a piece of evidence against a

defendant is ultimately decided by a judge on a case-by-case basis. In this case, the

prosecution attempted to submit a serial killer’s personality profile as evidence to the

court, claiming that the defendant matched the characteristics thereof. The court ruled in

favor of the prosecution’s request, and the defendant was convicted. This brief will

contest the correctness of the courts decision to allow the profile to be admitted as

evidence.

The primary support for disallowing psychological profiling into a case comes

from the Federal Rules of Evidence. Rule 702 as amended in December 2001 states that

the only time expert testimony is admissible in court is when, “(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.” Psychological profiling is a relatively young discipline that uses non-

standardized methodologies and lacks the scientific reliability that Rule 702 requires.

There has not been sufficient testing on the practice to determine if it is effective or

accurate enough for courtroom applications (Mauro, 2005).

In addition, this brief will show that there are two distinctly different methods of

profiling and that they are not equivalent. Depending on the methodology utilized to

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compile a profile, it cannot be corroborated that the expert witness “applied the principles

and methods reliably to the facts of the case”. Rule 403 states that evidence can be

thrown out if the danger of introducing bias to the jury outweighs the value of the

evidence. Claiming that the defendant fits a criminal profile has an immediate potential to

influence the jury’s perception of the case. Due to doubts about the scientific reliability of

profiling and the danger of introducing prejudice to the jury, stating that the defendant

fits a criminal profile should not be admissible in court as evidence.

ARGUMENT

Limitations of Small Data Pool

Profiling was not a frequently used tool until the 1970’s when the FBI developed

a Behavioral Sciences Unit. FBI investigators Robert Ressler and John Douglas helped

to create one of the current standards of profiling used modernly. Throughout the 70’s

and 80’s Ressler and Douglas interviewed 36 serial killers that had been caught and

imprisoned (Parker, 2002). Among this group were several “celebrity” killers such as

Charles Manson and David “Son of Sam” Berkowitz. Based on these interviews a

number of statistics were drawn up of what a “typical” serial killer’s psychological

profile would contain (Glazer, 2003). Today, FBI agents continue to interview serial

killers to add to this profile.

Most commonly, a profiler compares personality traits and observed behaviors of

an individual to the recorded behaviors of a small, under-represented group of offenders.

Statistical information derived from a small sample results in large confidence intervals

and an inaccurate pool for the profiler to draw conclusions from. Many studies in this

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vein caution that there are fundamental problems with predicting behavior based on a

limited, known group (Turvey, 1995). Ideally, researchers try to achieve large samples

that are representative of the mean characteristics that describe a population (Gravetter &

Walneau, 2002).

Due to the scarcity of serial killers, estimated to commit less than one percent of

all homicides, it is apparent that there is still a good deal left to learn (Glazer, 2003).

There are many theories about the life events that create a serial killer, ranging from

psychological problems to abusive childhoods. It is generally accepted that some

psychosocial background traits have been linked to an increased likelihood that violent

offenders will continue to commit violent crimes in the future (Valenzuela, Villanueva,

Aguilera & Luna, 1991). However, it is important to note that while results may be

indicative of future violence, they do not suggest murder (Pinta, Bessimer, Smeltzer &

Fine, 1990). Ultimately, there is no definitive answer as to what drives a person to

become a serial murderer. We do not understand serial killers and therefore cannot make

conclusions through profiles about whom they are. It is tenuous to infer any concrete

behaviors or personality patterns from this limited data (Glazer, 2003).

Yet, there is some advantage in having a small, non-representative sample to use

as the standard. Small samples generally have less variability than whole populations. In

some instances a small sample can also have a small variability if the subjects are

homogeneous and different from the population. One argument for psychological

profiling is that serial killers are similar to one another behaviorally, but different from

the general population. Following this, any statistically supportable facts that can be

obtained from the pool may be incorporated into or used in comparison to the profile of

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the suspect. On the other hand, by drawing conclusions from this incomplete body of

information, the profiler must make some inferences. Primarily, that the behavior and

characteristics of the individual in question can be generalized and predicted from

statistical analyses of the same traits within a population of rare criminals (Turvey, 1998).

This is partially supported by the literature, but only for short-term predictions (Hall,

Catlin, Boissevain & Westgate, 1984). In the recent case of the Washington D.C. snipers,

profilers fell flat when the young, solitary white male working alone turned out to be a

“father-son” pair of black men working together (Parker, 2002).

Additionally, the profiler must assume that an individual’s behavior and

motivation are static, predictable features rather than novel or spontaneous developments

within a unique being. There is accepted recognition in the literature that criminal

motives and behavior patterns are diverse, rather than static (Cornell, Benedek &

Benedek, 1987). Moreover, many questions have been raised about the reliability of self-

reported survey and interview information submitted by criminals (Godwin, 1998). There

is no way of knowing what aspects of an interview are truthful. Their reliability can be

significantly lessened in the face of recorded inconsistencies. For example, Ted Bundy

never admitted the actual number of killings he committed. His claims ranged from 3 to

300 and nothing was ever proven (Glazer, 2003). Furthermore, when asked why he

committed the murders, he couldn’t coherently explain his thoughts or reasons (Glazer,

2003). If someone so familiar with the act of murder cannot articulate his own reasoning

on the subject, how can anyone who never felt the urge to kill do so? (Glazer, 2003).

Finally, it is important to note that these interviews are based only on killers that have

been caught. They exclude an entire demographic of serial killers that remain

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undiscovered or free in the population. For example, Jack-the-Ripper authored a series of

letters to the police, but was never apprehended. Dr. Bond’s profile was based both on

these letters and forensic evidence; however, the accuracy of his profile will never be

known.

Non-standardized Profiling Methodology

Psychological profiling is a complex topic that cannot be argued for or against

without additional clarification of the methodologies utilized. There are two generally

recognized methods to compile a profile, deductively or inductively. However, they are

dichotomous and generally unequal in validity. Deductive profiling is rarely used in the

courtroom and is usually not the focus of scientific critique, nor the focus of this

argument. The deductive process concentrates on cases of individual offenders by

compiling unique psychological profiles across a relatively long period of time. It makes

use of physical evidence to reconstruct the signature behaviors and motivations of violent

criminals (Turvey, 1998). Inductive profiling is based on statistical figures drawn from

known populations of criminals, intuitive or anecdotal guesses on the part of the profiler

and public data sources (Holmes, 1989). This technique is simple to use, requires little

experience and is a fast way to build a general profile (Turvey, 1998). It is the more

popularly utilized, glamorized and criticized method. Arguments against the inductive

method rally around three important issues. First, it uses statistical information from a

small, known population of criminals to infer generalized information about individuals.

Second, the data collected and used to create a profile comes from a totally known

source. It is incapable of taking criminals outside this recognized set into account. This

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leads to a one-sided profile that comes from an unrepresentative sample. Third, the forced

ambiguity of a profile compiled by the inductive method will naturally carry a percentage

of inaccurate details. The descriptions included in profiling are vague and can be

interpreted to encompass a wide variety of people. Under Rule 403 of the Federal Rules

of Evidence, “evidence may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice.” An over-inclusive profile may serve to confuse the

jury’s impressions of a defendant by introducing vague information with limited

relevance to the case (Bailey, 2001). These details and exuberant profilers have been

known to complicate investigations with false positives (Alison, Bennell, Mokros &

Ormerod, 2002).

The differences between inductive and deductive profiling methodology create a

breach in the continuity of the underlying theory, making it difficult to accept using these

processes in a courtroom setting. Both sides claim that their research is valid, yet peck at

one another in the literature over details (Baeza & Mcgrath, 2000). Such conflict within

the field implies that the principles and methods are neither well understood nor cohesive.

How could the testimony from an expert in the field be trusted when the literature itself

cannot decide who the experts are? The debated lack of accuracy makes profiles

inadmissible in court under rule 702, and should not be entered in this case.

Diversity of Background Fields lead to lack of Communication Between

Profilers

The discipline of profiling has been developed from bits and pieces of many

scientific fields. It draws individuals from the ranks of forensic psychology and

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psychiatry, criminology, the FBI, state and local law enforcement and others (Turvey,

1998). Due to this, profilers as a group tend to be varied in their methodologies,

interpretation styles, compiling procedures and personal experiences (Jackson &

Bekerian, 1997). This variation is criticized as one of its largest deficiencies. For one, the

professionals typically involved in profiling do not always have well-rounded training in

forensic psychology, psychopathology, investigative procedure or specific experience

with investigating serial killers (Turvey, 1998). In addition to being varied as a group,

each profiler uniquely applies methodology and techniques. Profiling is not a uniform or

standardized discipline as such it is difficult to justify its use in courtrooms. Rule 702

states that the testimony of the expert must be “the product of reliable principles and

methods”. If a profiler has no practical field experience with these fundamental aspects of

criminal psychology and investigation, how are their conclusions valid? Furthermore,

how are they able to testify as expert witnesses on a subject they not an expert on?

To date there is no agreed upon definition or typographical model for violent

serial criminals. A major hurdle for both the fields of mental health and law enforcement

is finding common experience enough to standardize a definition and classification

process (Turvey, 1995). There is little overlap between the disciplines of crime scene

investigation and psychology, psychopathology and human behavioral study. This lack of

cohesiveness leads to a confusion of dialect definitions between law enforcement

agencies and forensic social scientists. Profiles compiled on the same subject by different

profilers will often be radically different because of these dialectical differences (Jackson

& Bekerian, 1997).

9

The field of profiling has been criticized for the differences in opinions between

professional profilers. In a recent study by Kocsis (2003) participating profilers were

accurate as a group, but rather inconsistent as individuals (of 47 invited profilers, only 11

chose to participate in the study). This large variance in expert opinions indicates a lack

of theoretical cohesiveness and scientific reliability in the processes involved in

developing criminal profiles. Inconsistency of this magnitude brings Rule 702 into sharp

relief. Such uncertainty is problematic because it raises the question of whether the

profile compared to the defendant was reliably compiled.

There is intense debate within the fields that comprise the discipline of profiling

in regard to its legitimacy as a scientific instrument (Glazer, 2003). The principles,

methodology and individuals that make up this discipline are in disarray. Lack of

communication within and between professional groups involved is evident. Due to the

lack of agreement over this practise among the professionals in the field, including a

profile in court is against the ruling set forth by US vs. Frye (1923).

State vs. Fortin, State vs. Haynes and State vs. Anthoney are three cases where

judges have refused to allow criminal profilers to testify, or allowed criminal profiles to

be used as character evidence. “Courts refusal to admit into evidence criminal

psychological profiles is based on the grounds that they constitute impressible character

testimony, improper subject for scientific or expert testimony, and unduly prejudicial

evidence” (Ingram, 1998). The court decisions in these cases should be upheld and

applied until science can prove the reliability of psychological profiles. As such the

profile in this case should be inadmissible in evidence as well.

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Consequence of Evidence

It is not known under which rules of evidence the court allowed either the profile

or the profiler’s opinion. As previously discussed, the three conditions leading to the

inclusion of evidence with Rule 702 are that there is sufficient data, reliable methods or

principles, and that it is applied correctly. Under Rule 702 it is apparent that the court has

erred because in order to include testimony all three conditions must be met. The deficit

of any of the conditions would exclude the profile from use as evidence. As shown, there

is a very probable deficit in all conditions due to the poor state of the art of psychological

profiling.

If the court included the evidence under Rule 703, which states that, “If of a type

reasonably relied upon by experts in the particular field in forming opinions or inferences

upon the subject, the facts or data need not be admissible in evidence in order for the

opinion or inference to be admitted,” then the trial court erred as well. This brief shows

that the dialectical and methodological differences would not permit room for facts or

data that could be reasonably relied upon to form opinions by a consensus of experts

because they differ so greatly. Even under the assumption that the facts and data fit this

condition, the inclusion of the profile in trial court is unjustifiable as “Facts or data that

are otherwise inadmissible shall not be disclosed to the jury by the proponent of the

opinion or inference unless the court determines that their probative value in assisting the

jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.”

(Rules of Evidence, 703). Profiles consistently use ambiguous language and the Barnum

effect is likely to prejudice the jury, as it has prejudiced police officers and other subjects

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in Kocsis’ studies (2004; I, II, III). The assumption that the facts and data could be

reasonably be relied upon is not relevant owing to Rule of Evidence 704(b).

Opinion on Ultimate Issue

Rule of Evidence 704(b) specifies that “No expert witness testifying with respect

to the mental state or condition of a defendant in a criminal case may state an opinion or

inference as to whether the defendant did or did not have the mental state or condition

constituting an element of the crime charged or of a defense thereto. Such ultimate issues

are matters for the trier of fact alone.” A psychological profile is a collection of

inferences and opinions regarding the mental state or condition of the defendant. The

prosecution introduced evidence to show that the defendant fits the profile of a serial

killer. Because the evidence and testimony infer that the defendant’s mental condition –

allegedly that of a serial killer – constitutes an element of the crime charged with, it is

inadmissible in court. Under rule 704(b) the profiler is not permitted to provide testimony

on the requisite mens rea of the defendant.

Constitutionality & Probable Cause

The United States legal system favors “the right of the people to be secure in their

own persons… against unreasonable searches and seizures… but upon probable cause ”

(Bill of Rights; Amendment IV). Profiles at the time of this writing successfully identify

offenders only 17% of the time (Kocsis, 2003). A 17% success rate is not enough to make

a case for probable cause. It is not constitutionally sound to convict a person solely on the

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grounds that they fit a description. U.S. v. Lopez (1971) questioned the wisdom of

detaining potential violators on the grounds that they might commit crimes in the future:

Furthermore, if we optimistically predict that in a pool of 1000 defendants, 17%

were convicted and 90% of those are actually guilty, then we have set 83 guilty people

free and convicted 17 innocent people.

Sentenced Not Sentenced

Guilty (.17)(.9) x 1000 = 153 (.83)(.1) x 1000 = 83 236

Innocent (.17)(.1) x 1000 = 17 (.83)(.9) x 1000 = 747 754

(.17) x 1000 = 170 (.83) x 1000 = 830 1000

This means that profiling is violating the constitution more often than it is offering justice

when using unrealistically conservative figures. We must still take into account

inaccuracies such as profile ambiguity, profiler bias and attempts to execute a speedy trial

by the legal system – reducing the amount of forensic evidence – and thus rendering our

optimistic numbers inadequate. The probabilities of convicting innocent people and

permitting criminals to go free would outweigh the probabilities of convicting the actual

criminal.

CONCLUSION

The laws of evidence regarding expert testimony were set forth by several court

cases. In the case of US v Frye (1923), the U.S. Supreme Court ruled that a science must

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be generally accepted in its field. In Dyas vs. US (1977) the courts ruled that the “state of

art must be sufficiently advanced”. This second ruling means that the practice must have

a solid scientific basis. Profiling fits into neither of these categories. As shown through

the posed arguments, the experts in the field of psychology, forensics, and law

enforcement cannot agree on a standardized methodology, who is an “expert”, whether or

not there is validity in inductive profiling or what direction the field should move in. The

scientific basis for profiling is questionable. Dichotomous methodology makes it difficult

to compare profiles scientifically. Those compiled using the inductive method are often

subjectively biased. Also, there is not enough known about serial killers to make accurate

assumptions regarding their motives and behavioral characteristics.

Profiling may be a potential way to limit suspects in an on-going investigation.

However, it is not yet state-of-the-art and is inadmissible in the courtroom as testimony

on an ultimate issue. At this point in time, more research needs to be done on

psychological profiling before it can legitimately be used as evidence in a trial. The trial

court has erred in its decision to allow the testimony and evidence of a profiler and

should reverse its decision.

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