Offender Profiling in the Courtroom: The Use and Abuse of Expert Witness Testimony

192 Pages·2008·0.89 MB·English

by  Norbert Ebisike

Offender Profiling in
the Courtroom
The Use and Abuse of Expert
Witness Testimony
Norbert Ebisike
LibraryofCongressCataloging-in-PublicationData
Ebisike,Norbert.
Offenderprofilinginthecourtroom:theuseandabuseofexpertwitnesstestimony/
NorbertEbisike.
p.cm.
Includesbibliographicalreferencesandindex.
ISBN978-0-313-36210-1(alk.paper)
1.Evidence,Expert—UnitedStates.2.Forensicpsychology—UnitedStates.
3.Criminalbehavior,Predictionof—UnitedStates.I.Title.
KF8965.E252008
347.73067—dc22 2008022561
BritishLibraryCataloguinginPublicationDataisavailable.
Copyright(cid:2)C 2008byNorbertEbisike
Allrightsreserved.Noportionofthisbookmaybe
reproduced,byanyprocessortechnique,withoutthe
expresswrittenconsentofthepublisher.
LibraryofCongressCatalogCardNumber:2008022561
ISBN:978-0-313-36210-1
Firstpublishedin2008
PraegerPublishers,88PostRoadWest,Westport,CT06881
AnimprintofGreenwoodPublishingGroup,Inc.
www.praeger.com
PrintedintheUnitedStatesofAmerica
Thepaperusedinthisbookcomplieswiththe
PermanentPaperStandardissuedbytheNational
InformationStandardsOrganization(Z39.48-1984).
10 9 8 7 6 5 4 3 2 1
ExcerptfromTheCompleteJacktheRipperbyDonaldRumbelow,publishedbyW.H.Allen.
ReprintedbypermissionofTheRandomHouseGroup,Ltd.111(1975),andwithpermissionof
CurtisBrownGroupLtd,LondononbehalfofDonaldRumbelow.Copyright(cid:2)C DonaldRumbelow
1975.
Contents
PREFACE vii
INTRODUCTION ix
Chapter1.WhatisOffenderProfiling? 1
DefinitionofOffenderProfiling 1
GoalsofOffenderProfiling 2
CrimeSceneStaging 3
ModusOperandiorMethodofOperation 3
Offender’sSignatureorCallingCard 3
LinkageAnalysis 4
TypesofCrimeSuitableforProfiling 4
HistoryandDevelopmentofOffenderProfiling 5
Chapter2.ApproachestoOffenderProfiling 19
DiagnosticEvaluationorClinicalApproach 19
CriminalInvestigativeAnalysisortheFBIApproach 20
TheInvestigativePsychologyorEnvironmentalPsychologyApproach 27
GeographicProfiling 33
BehavioralEvidenceAnalysisApproach 34
CrimeActionProfiling 35
Chapter3.ExpertTestimony:ConflictingRulesandStandards 37
Fryev.UnitedStates 37
FederalRulesofEvidence 47
Daubertv.MerrellDowPharmaceuticals,Inc. 52
GeneralElectricCo.v.Joiner 57
KumhoTireCo.v.Carmichael 59
vi Contents
Chapter4.OffenderProfilingintheCourtroom 63
IsOffenderProfilingImpermissibleCharacterEvidence? 63
WhoisQualifiedtoGiveExpertOffenderProfilingTestimony? 74
IsOffenderProfilingTooPrejudicial? 78
IsOffenderProfilinganOpinionontheUltimateIssue? 86
IsOffenderProfilingSufficientlyReliableastoBeAdmissible? 90
Chapter5.OffenderProfilinginComparativePerspective 117
OffenderProfilingintheUnitedKingdom 117
OffenderProfilinginCanada 124
OffenderProfilinginOtherCountries 131
CONCLUSION 133
NOTES 139
BIBLIOGRAPHY 157
TABLEOFCASES 175
INDEX 177
Preface
This book examines the use of offender profiling evidence in criminal
cases—its meaning, history, approaches, and legal admissibility. The intro-
duction of offender profiling into the courtroom has been controversial,
problematic, and full of inconsistencies. This book therefore, examines the
central problems with offender profiling evidence, and answers questions
such as: Is offender profiling impermissible character evidence? Who is
qualifiedto giveexpertprofiling evidence? Isoffender profiling tooprejudi-
cial? Is offender profiling an opinion on the ultimate issue? Is offender
profiling sufficiently reliable as to be admissible? This book has noted that
in United States, there are inconsistencies in the court decisions on offender
profiling evidence as a result of three conflicting rules governing the admis-
sibility of expert evidence. After a critical examination of the three rules,
the adoption of one rule has been suggested. The Frye test standard com-
bined with the Federal Rules of Evidence 702 provides the best admissibil-
ity standard.
Many people are confused as to the definition of offender profiling. This
book has therefore, presented a step-by-step analysis of the history and de-
velopment of offender profiling. Offender profiling is a multidisciplinary
practice, which, atthe moment,is best described asan art with thepotential
of becoming a science. This book concludes that offender profiling is not
sufficiently reliable as to be admissible. It is more prejudicial than proba-
tive. This book also concludes that there is an uneasy relationship, lack of
unity, and absence of information sharing among the different segments of
the criminal justice system involved with offender profiling, and that this
problem has limited the potential of offender profiling. Hence, some courts
are not convinced as to the reliability and validity of this technique. I make
several recommendations throughout the work to address these issues.
viii Preface
Many people provided me with great support and strength that enabled
metobringthisbooktofruition.Firstofall,Iwouldliketothankmyparents
for their continued belief that education is a good investment that opens
many doors. I also take this opportunity to express my appreciation to my
brothers and sisters for their encouragement and understanding throughout
thevariousstagesofthisbook.
I would also like to express my sincere gratitude to Dean Emeritus and
Professor Peter Keane, Distinguished Professor Emeritus Sompong Suchar-
itkul and Professor Christian Okeke, of Golden Gate University School of
Law, for their support and encouragement. I would like to thank them for
sharing their knowledge and for showing me the ‘‘light.’’ My sincere grati-
tude goes to all the staff of Golden Gate University Center for Advanced
International Legal Studies and Golden Gate University Law Library for
their assistance. My special thanks also go to the Greenwood Publishing
Group staff for doing excellent work. Finally, I would like to thank the
many people who assisted mein one way orthe otherthroughout this work.
Many thanks to the offender profiling experts who assisted me by sharing
their knowledge and information.
Norbert Ebisike
Introduction
In spite of the ever-increasing media interest in the use of offender profiling
incriminaltrials,thistechniqueisstillnotwellunderstoodbyalotofpeople,
including judges, lawyers, and jurors. Some people see offender profiling as
mystical and others simply see it as a fiction. It is the aim of this book to
demystify offender profiling and try to raise the general level of knowledge
and understanding of this crime investigation technique. This book has two
hypotheses.Thefirstisthatoffenderprofilingisnotwidelyacceptedincourts
because its reliability and the scientific basis has not been established, and
second, that there are inconsistencies surrounding the admission of offender
profilingasaresultoftheconflictingrulesandstandardsgoverningitsadmis-
sibilityinvariousjurisdictions.Thecentralthesisofthisbookisthatoffender
profilingisnotsufficientlyreliableastobeadmissible(inprovingtheguiltor
innocence of an accused); its prejudicial effect substantially outweighs its
probative value;and that there is anuneasyrelationship, lack ofunity, coop-
eration, and absence of information sharing among the different segments of
the legal system that has limited the potential of offender profiling. There is
alsotheproblemwiththeexistenceofthreerulesgoverningtheadmissibility
of expert evidence in United States. This has led to inconsistencies in the
decisions to admit or exclude offender profiling and its derivatives. There
havealsobeenmanyconflictingcourtdecisionsonthistechnique.
This book examines the central problems of offender profiling evidence.
Two questions provided the impetus for this book. First: Is offender profil-
ing sufficiently reliable as to be admissible? Offender profiling involves
gathering information from the crime scene; witness and victim statements;
autopsy reports; offender’s physical descriptions, race, age, and criminal
records; and so on. The second question then is: How accurate is informa-
tion gathered in this manner? Should it be tendered in court as proof of
x Introduction
guilt or innocence? Offender profiling does not point to specific offenders.
It does not determine whether a given defendant committed a specific act.
This question arises because in several cases the reliability and accuracy of
offender profiling has beenat issue.Second, is offender profiling moreprej-
udicial than probative? I conclude that offender profiling is too prejudicial
to the accused. Offender profiling only provides an indication of the type of
person likely to have committed a type of crime. It does not point to a spe-
cific individual. This question arises because in several cases examined,
courts have been inconsistent in their decisions on this issue.
In Chapter 1, I discuss the meaning and nature of offender profiling. The
goals of offender profiling are also discussed. Offender profiling is an inno-
vative but worrisome technique of crime investigation. In order to have a
better understanding of this technique, its history and development are dis-
cussed in detail.
Offender profiling is mainly used by the police to narrow down a sus-
pects’ list in cases where no physical evidence was left at the crime scene.
In recent times however, this technique has been introduced into the court-
room as evidence and there has been a lot of controversy surrounding it.
Hence, there have been conflicting court decisions on its status as admissi-
ble evidence. Inseveral cases, the reliability,validity, and scientificbasis of
thistechniquehavebeenatissue.Chapter2therefore,introducestheprinci-
ples and practice of offender profiling. The different approaches to profiling
arediscussed,aswellastheirvariousstrengthsandweaknesses.
In Chapter 3, the general rules and principles governing the admissibility
of scientific evidence are discussed. As I mentioned earlier, there are many
inconsistencies surrounding the admission of offender profiling in criminal
cases. One reason has been identified and it relates to the fact that there are
threemainrulesgoverningtheadmissibilityofscientificevidence.Thethree
rules are as follows: the Frye test standard, the Federal Rules of Evidence,
and the Daubert decision. Each state in United States has adopted one of
theserules/standards.SomestatesuseFrye,somehaveadoptedtheDaubert
criteria, while others have adopted Frye plus their own rules of evidence. It
should be noted that the Daubert criteria is the main rule applied at the fed-
eral courts. This leads us to the question: Is it possible to adopt one particu-
larrule?Thisquestionwillbefullyexamined.
This book also aims to provide a critical analysis of the use of offender
profiling in criminal cases. Hence, Chapter 4, covers the central problems
of offender profiling evidence and critically examines cases that involved
offender profiling. Chapter 4 also discusses different aspects of challenging
offender profiling, answering such questions as:
1. Is offender profiling impermissible character evidence?
2. Who is qualified to give expert offender profiling testimony?
Introduction xi
3. Is offender profiling more prejudicial than probative?
4. Is offender profiling an opinion on the ultimate issue?
5. Is offender profiling sufficiently reliable as to be admissible?
Another aim of this book is to provide a comparative analysis of the use of
offender profiling in various jurisdictions. Chapter 5 discusses the admissi-
bility of offender profiling in England and Canada, as well as the state of
offender profiling in other countries.
In concluding, I offer some recommendations, look at the future of of-
fender profiling, and suggest areas where further research is needed. This
book argues the point that offender profiling is a specialized area of knowl-
edge, but one which has not yet reached a sufficient level of reliability as
to be admissible. I remain critical of the continued admission of offender
profilingincriminaltrialsandconcludethatoffenderprofilingisatechnique
basedonassumptions,suspicion,stereotypes,andprobabilities.
This book differs from other previously published studies in many ways.
First,thisworkhaspresentedaninterdisciplinaryandnonsegmentalapproach
to the understanding of offender profiling. The nature, theory, practice, and
the legal aspects of offender profiling are presented in one study. This book
goes further with supporting the theory that offender profiling can be used as
a tool in developing crime prevention measures. This book also examines
offenderprofiling ina comparative perspective.Aboveall,none ofthe previ-
ously published studies examine the uneasy relationship among the different
segments or approaches to offender profiling, which has limited the potential
ofthistechnique.Itismyhopethatthisworkdemystifiesoffenderprofiling.