FORENSIC PSYCHOLOGY : CRIMINAL PROFILING AND BEHAVIOUR

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

PROJECT

ON

“FORENSIC PSYCHOLOGY : CRIMINAL PROFILING AND

BEHAVIOUR “

ACADEMIC YEAR: 2019-20

SUMBITTED TO :- SUBMITTED BY:-

DR.ISHA YADAV. AAKASH RAJ CHAUHAN

ASST PROFESSOR. 180101002
RMLNLU, LUCKNOW BA.LLB 3RD SEM.

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 FORENSIC PSYCHOLOGY : CRIMINAL PROFILING AND BEHAVIOUR

ACKNOWLEDGEMNT

Above all else, I would like to thank the Almighty for his blessings upon us.

Although, I have worked hard for this project, it would not have been possible without the kind
support and help of many individuals. I would like to extend my sincere thanks to all of them.

I am highly obligated to Ms. Ishax Yadav for her direction and continuous observation as well
as for providing essential information regarding the project & also for her support in
completing the project.

I would like to express my special gratitude and thanks to all those people who gave me
attention and their invaluable time.

My thanks and appreciations also go to my friend and classmates in developing the project and
people who have willingly helped me out with their abilities.

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 FORENSIC PSYCHOLOGY : CRIMINAL PROFILING AND BEHAVIOUR

TABLE OF CONTENTS

1. Introduction………………………………………………………….…3

2. What is Forensic Psychology ?................................................................4

3. What is Criminal Profiling ?...................................................................6

4. Criminal Profiling in current times……………………………………8

5. Methodologies and typologies of criminal profiling….…….…………9

6. Areas of concern……………………………………….………………11

7. Criminal profiling in India…………………………………….………12

8. Admissibility of a Profiler’s Testimony in the Courtroom………….13

9. Conclusion………………………………………………………………22

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"There is all the difference in the world between evidence proving that the accused is a bad
man and evi-dence proving that he is the bad man." -Lord Sumner

I. Introduction

In recent years, the field of forensic psychology has experienced massive growth in the United
States and abroad. This continued growth is pushing academic institutions and the legal field
to expand their usage of these practitioners. This article focuses on a specialized practice area
within forensic psychology: criminal profiling (aka offender profiling). As forensic psychology
burgeons with new graduates, the availability of criminal profiler testimony will likely also
increase. This would naturally lead to increasingly frequent instances of judges encountering
and evaluating whether such testimony may be admitted in evidence.

This article will summarize the history and growth in forensic psychology and criminal
profiling; and analyse whether the courtroom testimony of the criminal profiler should be
admissible in evidence. This article will conclude that criminal profiles are not admissible, but
the testimony of a criminal profiler might be admissible so long as it is carefully limited to
reliable psychological theories. Distinctions between psychology and psychiatry are less
important to the issues at hand, so both fields will henceforth be referred to without distinction.
Although the field of forensic psychology requires reference on national and international
levels, this article will attempt to narrow the legal inquiry to Kansas jurisprudence. Other
pervasive legal standards will also be discussed.

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II. What is Forensic Psychology?

Simply stated, forensic psychology is a field of psychology that operates within the legal
system. Forensic psychologists provide professional psychological expertise to the judiciary,
by working as clinical forensic examiners, correctional or forensic mental health consultants,
researchers who testify about the reliability of a scientific theory or technique applied to a
psycholegal issue, or trial consultants. This list is not exhaustive, but should provide some
guidance. At the behest of judges, prosecutors, or defence attorneys during various stages of
litigation, forensic psychologists are often asked to perform evaluations such as mental health
diagnoses.

Forensic psychology has matured into an increasingly widespread and accepted field of study.
An article published by the American Psychological Association (APA) explains that there has
been “rapid growth over the past 30 years” within the field of forensic psychology, and
“opportunities for postdoctoral fellowships, continuing education, and respecialization have
become increasingly more available.” For instance, in 1973 the University of Nebraska College
of Law developed the first law-psychology joint-degree graduate program in the United States,
wherein “students may obtain a J.D. and either a Ph.D. or an M.A. in Psychology.” In 2001,
the APA approved forensic psychology as an applied area of psychological specialization.
Today, forensic psychology is “the fastest growing speciality within the discipline of
psychology.” This upsurge in forensic psychology is not isolated to the United States. The field
thrives in the United Kingdom (U.K.), mainland Europe, and Australia. In a newly published
text by the British Psychological Society, the authors noted:

The past decade has been one of boom in forensic psychological practice with record numbers
of posts in health and criminal justice, here has been a growth of staffing in the Higher
Education sector to accommodate course growth. There has also been a concomitant expansion
in the breadth and depth of academic work.

Well-known mainstream writers have published articles in widely circulated periodicals about
the intriguing uses of forensic psychologists within the legal community. Dr. John Horgan,
forensic psychologist and professor in the Department of Applied Psychology at the University
College Cork, Ireland, attributes this trend to mass media. Horgan explained:

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Since the mid-1990s, forensic psychology has enjoyed an exponential rise in popularity . . . .
The primary driving force behind student and public interest has been the plethora of popular
crime fiction since that period, especially in film and television. Hollywood blockbusters such
as ‘Silence of the Lambs,’ and more recently ‘Red Dragon’ have successfully whetted the
appetites of would-be investigators drawn to psychology with expectations of becoming the
next Will Graham or Clarice Starling.

The protagonists in many of these novels and films are based on real-world forensic
psychologists who usually specialize as criminal profilers. For example, FBI profiler John
Douglas, who pursued the infamous BTK Killer (Bind Torture Kill), was allegedly the model
for “Agent Jack Crawford” in Thomas Harris’ novel “The Silence of the Lambs.”

One of the better-known fictional characters is Sir Arthur Conan Doyle’s “Sherlock Holmes.”
Out fitted with his iconic hat and curved pipe, Sherlock Holmes voiced a warning: “It is a
capital mistake to theorize before you have all the evidence. It biases the judgment.”
Unfortunately, clever criminals may not leave behind very much evidence to be judged. The
battle of wits between the criminal profiler and his quarry has certainly allured the public
interest.

While public interest in forensic psychology may be thriving, the courts react more hesitantly
toward this relatively new field. Forensic psychologists have fought a long and difficult battle
to be accepted in U.K. courts, but eventually they succeeded. In 1991, the Court of Appeal
allowed forensic psychologist testimony concerning personality traits. A decade later, forensic
psychologists were heard by the House of Lords for the first time in the case of Donald
Pendleton, whose conviction was overturned on the basis of fresh psychological evidence.

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III. What is Criminal (or Offender) Profiling?

As a sub-specialty of forensic psychology, criminal profiling involves the use of behavioural

data collected from crime scenes and witness accounts to predict likely characteristics of the
perpetrator. Their goal is to narrow the scope of an investigator’s search. Profilers look for
clues such as: geography of the crime, weapons, restraints (or lack thereof), domestic and work
settings, time of day, sequence of injuries and events, the manner in which injuries or damage
is inflicted, any information about the victim’s habits and personality, signs of struggle, and
autopsy reports. Next, profilers draft psychosocial composites based on inferences about the
perpetrator’s likely behavioural characteristics exhibited at one or more crime scenes. The
underlying assumption is that a perpetrator’s behavior will be consistent from scene to scene.
The more crimes a perpetrator commits, the more clues can be gathered to fashion a more
accurate profile, thus increasing the likelihood of apprehending a serial criminal or repeat
offender. For instance, one of these keystone successes began in November of 1940, when a
series of bombs began appearing and sometimes detonating in Manhattan, New York. Although
the perpetrator, later referred to as the “Mad Bomber”, left handwritten notes and other pieces
of evidence at the scenes, he eluded police and continued his crime spree for the next sixteen
years. The long-term failure of police to catch the bomber led to public outrage. Desperate,
detectives approached psychiatrist and former Federal Bureau of Investigation (FBI) spy-
hunter Dr. James Brussel. Dr. Brussel commented about his initial meeting with investigators
who were clearly skeptical towards forensic psychologists. Dr. Brussel wrote, “I’d seen that
look before . . . on the faces of hard, old-line, field-grade officers who were sure this
newfangled psychiatry business was all nonsense.”2 Nevertheless, Dr. Brussel agreed to help.

After reviewing the evidence, Dr. Brussel gave detectives an eerily specific profile of the
perpetrator. Dr. Brussel told police to search for a heavyset, unmarried, middle-aged male of
Eastern European descent with an exemplary work record, living with a mother-like figure,
and educated but used a stilted word choice. Then, Dr. Brussel did something that would make
him a legend. He added, “When you catch him—and I have no doubt you will—he’ll be
wearing a double-breasted suit . . . . And it will be buttoned.” About a month later, police
identified a suspect named George Metesky, who matched the profile in almost every respect.
When police arrived to arrest Metesky at his home during the night, Me-tesky readily confessed

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to the crimes but asked for leave to change out of his pajamas before going to the station. The
officers granted his request, and when Metesky emerged from his bedroom he was wearing a
double-breasted suit . . . buttoned.

Dr. Brussel’s and others’ successes eventually prompted the FBI to form the Behavioral
Analysis Unit (BAU), which is probably one of the better known criminal profiling units in the
world. BAU profilers have refined the principles created by Dr. James A. Brussel, whom many
forensic psychologists credit as the father of criminal profiling. How a criminal profile is
formulated from behavioural data depends on which approach the profiler utilizes. Some
common approaches include: Diagnostic Evaluation; Crime Scene Analysis (known as
“Crime Action Profiling” in the U.K.); and Investigative Psychology. Howard Teten and the
FBI’s Behavior Analysis Unit (BAU) are credited with the development of one approach called
Criminal Investigation Analysis, which gained popularity after it aided in the capture of
infamous serial killers Ted Bundy and Gary Ridgway. This approach is often used in the United
States to profile arsonists, sexual offenders, and sexual homicides.

Techniques and theories unique to each of these approaches will not be discussed herein, but
it will suffice this article that the prevailing attitude in the field is that these approaches are
experimental, and frequently lack authoritative support and empirical validation. As the
Program Manager of the FBI’s Profiling and Consultation Program, John E. Douglas,
explained, “Investigators traditionally have learned profiling through brainstorming, intuition,
and educated guesswork.” Profiles based on intuition and guesswork will not withstand the
prevailing evidentiary standards on expert testimony.

Profiling in England developed earlier than in America, but British profilers still haven’t seen
the inside of a courtroom. Interestingly, while forensic psychology is increasingly welcomed
into English courts, criminal profiles remain barred. One British commentator surmised that
profiling has “never been admissible in the British legal system as expert evidence, because of
definitional problems and disagreements about the scientific knowledge base.”Another
possible reason for this view is that many profiles closely resemble “cold reading” techniques
used by astrologers and psychics who make numerous vague and un-testable predictions, which
noone can prove are either true or false. Some of the suppositions are retrospectively construed
as accurate predictions, while inaccurate ones are quickly forgotten. Despite a well-

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documented history and the impressive recent developments within criminal profiling, forensic
psychologists in general still view profiling as a “largely experimental field.” Dr. Horgan
admonished:

We ought to treat with caution declarations or claims to the validity and successes assumed of
cur-rent incarnations of profiling. While its immense popularity may be welcome in drawing
attention to the work of forensic psychologists more generally, failure to critically consider the
practice, ex-tent and accountability of offender profiling (and also the profilers) may have
unfortunate repercussions for the broader development of forensic psychology.

While the magic of real-world anecdotes may awe the public, many courts are more
guarded,especially when asked whether these profiles should be admitted in evidence against
a criminal defendant.

III. Criminal Profiling in current times

The essence of criminal profiling is that “A certain type of person acts in a certain way”. It
includes narrowing down the range of investigative field of the possible criminals responsible
for a particular crime. On the basis of the available information the profiler provides additional
information to aid in identifying the actual criminal. It also aids in providing additional
information about race, sex, social class, education, residence, marital status, types of vehicle
and other belongings of the unknown criminal. Finally, criminal profiling aids developing
interviewing suggestions and tactics that will be better at drawing information from
eyewitnesses and criminals. Wilson et al. (1997) have identified three forms of criminal
profiling that is (a) diagnostic profiling that involves personality profiling of the criminals, (b)
crime scene analysis and (c) investigative psychology.
There have been several attempts to carry out scientific studies to understand the process and
accuracy of criminal profiling. Canter (1995) developed the interpersonal model of homicide
according to which a criminal perceives a victim either as an ‘object’ that can be used for his
own wish and need fulfilment, or as a ‘vehicle’ by means of which the criminal can achieve
his own psychological and emotional goals, or perceives the victim as a ‘person’ with whom
he tries to establish a false relationship. The support for this model comes from the analysis of
88 serial killers and 39 crime actions by Hodge (2000). Grubin, Kelly and Ayes (1997)

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closely inspected 470 cases of sexual assault committed by 210 offenders and they found
regularities across the different crimes committed by the same criminal. Canter (2000)
recognizes psychologists as the ‘original profilers’. He argues that long before the FBI came
into existence, psychology has been known for inferring characteristics about people based on
limited information. In their survey Delprino and Bahn (1988) found that psychologists were
helping the local police officials regarding the characteristics of criminals even before
Behavioural Science Unit of FBI was established. Geberth (1996) has identified the possible
factors that can be drawn from a personality profile of a criminal. He also identified the six
essential items for creating a profile which are: photos of the crime scene, information about
the neighbourhood, medical examiner’s report, information about the victim’s travels before
death, background information about the victim and detailed investigative report. Also, in case
of what appears to be motiveless crime, the criminal profiler gives an initial direction to the
investigation by reconstructing behavior from physical eveidence (Geberth, 1996).

IV. Methodologies and typologies of criminal profiling:

Criminal profiling can either be inductive or deductive. The inductive profiling includes
preparation of profile of the unknown criminal on the basis of the crimes committed in the past,
on the basis of the study of criminals that have already been indentified and/or on the basis of
other sources like books, media etc. In deductive profiling, however, the crime scene, available
evidences and victims are minutely examined and analyzed to create the profile of unknown
criminal.

Criminal Profiling involves two typologies referred as the organized- disorganized dichotomy.
This dichotomy was closely inspected by FBI on the basis of data collected between the years
1979- 1983 that suggested this dichotomy to be present both in the case of crime scenes and
criminals. More recent studies reported an association between the typologies of crime scenes
and the criminals (Godwin, 2002; Canter et al., 2004). These studies found that organized
criminals mostly commit organized crimes and are responsible for organized crime scenes.
Similar relation could be observed in the case of disorganized criminals and disorganized crime
scenes.

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V.Instruments and accuracy of criminal profiling

Various instruments have been used in the process of criminal profiling. Earlier instruments
used for this were more subjective in nature but nowadays more objective methods and
instruments (i.e. MMPI and penile plethysmography) are being utilized by criminal profilers.
Literature suggests that different types of sexual offenders manifest higher scores on different
scales of MMPI. A study by Swenson and Grimes (1969) revealed that child molesters showed
maximum mean elevation on scale 4 and 9 of MMPI. Studies also found that homosexual
pedophiles but not heterosexual pedophiles score higher on scale 4 of MMPI (Langevin et al.,
1978) and that incestuous and non incestuous child molesters scored more on scale 4 of MMPI
(Panton, 1979).

Despite use of more and more objective instruments for criminal profiling, its accuracy has
always been a topic of debate among researchers. Kocsis et al. (2000) reported significant
difference between the performance of professional and non professional groups. Accuracy of
profiling has also been tested with regard to performance of police and other professional
profiler groups. Peterson (1997) proposed that police would perform better if they are taught
about the laws that form the basis of the profiling process. On the contrary, Douglas et al.
(1986) does not found any significant difference between the comparison of the performance
of professional and non professional profilers. These contradictory findings, thus, questions the
validity and reliability of the criminal profiling process. There have been researches to test
whether success of profiling is an illusion or whether the inferences drawn from the profile
about the criminal are accurate. Quinsey et al. (1980) found that child molesters, rapists,
arsonists, murderers, property offenders score higher on scale 4 and 8 of MMPI. Success stories
of certain profiles, like the profile of ‘Mad Bomber’ prepared by James Brussles helped to earn
support for the criminal profiling process as an investigative tool. But on the other hand the
profile prepared of the ‘Granny Killer’ was without any errors except one. The killer was 40
years older than what was actually expected and mentioned in the profile.
The process of criminal profiling is based on the assumption that behaviour is determined by
the underlying disposition, an assumption similar to the assumptions of trait theories of
personality that were quite popular in the late 1960s. However, this assumption is flawed in

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essence as it ignores the situational factors as determinants of behaviour. Support for this
argument comes from Bennell and Canter's (2002) study of serial commercial burglary which
reported very low levels of regularities with regard to items that were stolen and methods of
entry that were used by perpetrators. Most of the current assumptions of criminal profiling
process have not been tested empirically thus there are very little evidences to validate the
currently proposed methodologies and typologies. Also, the investigators are more likely to
report successful cases of profiling. Due to these criticisms validity of criminal profiling has
remained questionable. However, Pinizzotto & Finkel (1990) proposed that the process may
have some validity.

VI. Areas of concern

Despite the fact that profiling process is largely being promoted by the media, there are still
some areas of concern. Researchers are still debating over the question whether criminal
profiling process is an art or a science. Its controversial nature renders the credibility of the
process questionable. As the profiling helps to narrow down the investigative field, even a
slightly wrong profile will completely mislead the police. Consequently, the real offender may
end up killing more people. Empirical testing of the core assumptions on which this process is
based still needs to be done. Instead of systematic and scientific work, most of the published
work on profiling has taken the form of journalistic articles. Geberth (1996) reported that in
various literature and cinema often psychics are portrayed as successful profilers. As a result
the profiling methodology appears to be confusing and its scientific accuracy is rendered to be
little credibility. Bennel (2008) argued that criminal profiling process may also be marred by
‘false recognition effect’ as often people tend to exhibit false memories.

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VII. Criminal Profiling in India

Despite an exhaustive literature review no published account of criminal profiling in India was
found except for one which involves psychological investigation into the mind of the serial
killer, Surinder Koli by Department of Forensic Medicine and Toxicology, All India Institute
of Medical Sciences (Dogra & Leenaars, 2012). Currently in India, criminal profiles are largely
prepared by the police with the help of the forensic experts. One such case is the Govind
Pansare murder case in which the sole suspect arrested in 2015 was Samir Gaikwad. The police
not only questioned the suspect but also called in a team of experts from Directorate of Forensic
Sciences (DFS), Gandhinagar, Gujrat to prepare a psychological profile of the suspect and aid
in investigation. But little efforts are made to psychoanalyze the criminals and to make use of
the other psychological processes and principles. Some recent researches have observed a
success rate of 77 percent of criminal profiling in helping the traditional investigations
(Chidambaram, 2011). The conventional policing system (the ‘KOTWALI’ system) had a
system of recording behavioural traits of the criminals a process similar to the criminal
profiling process. Though, the use of criminal profiling process in India is not wide spread, it
has been attracting the attention of the general public because of the famous television shows
like , ‘Crime Scene Investigation’, ‘Criminal Minds’, ‘Castle’ etc. However, as most of these
are Hollywood television shows, the criminal profiling process is becoming popular only in a
section of the general public. An important year in the development of the criminal profiling
process in India is the establishment of Gujrat Forensic Sciences University in 2008 that claims
to be first of its kind in India. With increased awareness, criminal profiling is increasingly
becoming a relevant tool to aid in criminal investigation in India.

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VIII. Admissibility of a Profiler’s Testimony in the Courtroom

A. Frye and Daubert

From 1923 until 1993, Frye v. United States defined the standard for admitting expert
testimony based on scientific evidence. According to Frye:

The rule is that the opinions of experts or skilled witnesses are admissible in evidence . . . when
the question involved does not lie within the range of common experience or common
knowledge, but requires special experience or special knowledge, then the opinions of
witnesses skilled in that particular science, art, or trade to which the question relates are
admissible in evidence And While courts will go a long way in admitting expert testimony
deduced from a well-recognized scientific principle or discovery, the thing from which the
deduction is made must be sufficiently established to have gained general acceptance in the
particular field in which it belongs.

The above text establishes some key elements in whether expert testimony may be admitted,
namely is the testimony helpful to the trier of fact, and is it based upon scientific principles that
are generally accepted as reliable in the field. An expert’s testimony is usually considered
helpful, when a trier of fact is asked to weigh evidence that they do not comprehend. The
inverse is also true. As the Kansas Supreme Court explained, “where the normal experience
and qualifications of jurors permit them to draw proper conclusions from given facts and
circumstances, expert conclusions or opinions are not necessary.” The helpfulness standard
varies among jurisdictions. For example, an expert’s opinion in Tennessee must “substantially”
assist a factfinder, otherwise the expert will be excluded.

In addition to being helpful to a trier of fact, evidence must also be relevant to the issues or
facts of the case. Evidence is relevant in Kansas when it “has any tendency in reason to prove
any material fact.” Many other states have adopted a form of the Federal Rules of Evidence,
which defines relevant evidence as “evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Relevancy is a matter of logic and experience, not a

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matter of law. Nevertheless, there must be some logical connection between the facts and the
inference they are intended to establish.

Concerning general acceptance within the field, courts have considered a variety of indicators
to evaluate the overall maturity of the particular field and the reliability of techniques or
theories used there-in. Some common factors include: the availability of formal academic
programs for the particular field’s specialization; uniform practice standards and ethics rules;
practitioner certification; peer-reviewed research; standardized terminology; and formal
recognition by authoritative organizations within the field.
The Frye Court acknowledged the difficulty in determining whether a practice has become
generally accepted: Just when a scientific principle or discovery crosses the line between the
experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone
the evidential force of the principle must be recognized.

As forensic psychology displays most of the benchmarks of a mature, well-established field,

there should be little question anymore as to whether the field is generally accepted by the
psychological community. However, courts struggle when evaluating whether criminal
profilers are basing their opinions on reliable, generally accepted theories and techniques.
Some courts have erroneously qualified criminal profilers as experts, based upon the
assumption that the “expert’s” testimony is premised upon “generally accepted” theories and
techniques.

The risk here is that some profilers may gravitate towards unverified theories which they
presumptuously designate as indisputable fact, which the unwitting jurist may accept.70 Also,
the area of criminal profiling suffers from a plethora of discordant terminology and acronyms,
leading to ambiguity and dissonance among profilers. These issues are the principle barriers
preventing criminal profilers from testifying in court.

After Frye was decided in 1923, the “generally accepted” test dominated federal jurisprudence
on this issue for the next 70 years, until the rule was superseded in 1993 by Daubert v. Merrell
Dow Pharmaceuticals, Inc. Daubert backed away from the restrictive “generally accepted” test
and liberalized the use of expert testimony by focusing on “reliability” and results of empirical
evidence for both scientific and Technical evidence. Thus, “general acceptance” still plays an

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important role in the inquiry, but is no longer the dispositive factor. However, Kansas, among
other states, refused to adopt the liberal Daubert
standard and instead continues following Frye. Any expert testimony based on unverified or
experimental techniques must pass a Frye evaluation, otherwise it will be inadmissible in
Kansas courts.

1.Frye and Kansas Statute Annotated 60-456(b)

Since Kansas courts still follow Frye, they are more restrictive with experts than courts that
follow Daubert. The party offering the expert testimony has the burden of proving both general
acceptance and reliability of the underlying scientific theory upon which the opinion is based.
Any opinion based on a theory or technique that is still considered new or experimental and
has not yet gained general acceptance, will be excluded. Even if the underlying principles are
reliable, the expert’s testimony is excluded if the principles are not generally accepted in the
field. Kansas courts apply Frye to both physical scientific evi-
dence and psychiatric diagnosis. Kansas Statute Annotated (K.S.A.) 60-456(b) applies to
expert testimony.

(b)If the witness is testifying as an expert, testimony of the witness in the form of opinions or
inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived
by or personally known or made known to the witness at the hearing and (2) within the scope
of the special knowledge, skill, experience or training possessed by the witness.
As a threshold matter, K.S.A. 60-456(b) is not difficult to hurdle. An expert in a Kansas court
must personally obtain information about the case before testifying. Presumably, this would
bar experts who are unfamiliar with the facts of the case.

2.Daubert and Federal Rule of Evidence 702

Daubert is the prevailing standard for experts in many state and federal courts. Justice
Blackmun wrote for the Daubert majority, and held: (1) that the Federal Rules of Evidence as
amended in 1976 supersede the Frye “general acceptance” test, thereby lowering legal barriers
for expert testimony; and (2) that the trial judge has the task of ensuring that expert testimony
is reliably founded, is relevant to the issues,

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and will be helpful to the fact-finder. In other words, an expert’s testimony does not have to be
generally accepted as reliable in the field, so long as the trial judge finds that the underlying
theories and techniques are indeed reliable.

In 1999, the Court decided Kumho Tire Co. v. Carmichael, which clarified Daubert by
entrusting trial judges as gatekeepers to exclude all forms of unreliable or irrelevant expert
testimony. Soon thereafter, Federal Rule of Evidence 702 was amended in 2000 to incorporate
the holdings of Daubert and Kumho.With those amendments, Rule 702 now states:
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, expe-rience, 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.

Daubert, or variations thereof, is probably the predominant standard in American courts.

Daubert relaxed the rules of evidence to encourage courts to allow more experts to testify.
Criminal profilers have better chances of testifying in Daubert jurisdictions, than in Frye
jurisdictions.

Trial courts asked to admit a criminal profiler’s testimony face a confusing proposition.
Evidence of specific instances of someone’s conduct is inadmissible to show that the person
committed the offense presently charged. One reason for this per se prohibition is to avoid
scapegoat prosecutions, where someone is accused of committed the present offense because
they committed a similar offense in the
past. The obvious fallacy is that just because someone did something similar in the past, does
not necessarily mean that the same person committed the present offense. As Lord Sumner
famously remarked:
"There is all the difference in the world between evidence proving that the accused is a bad
man and evidence proving that he is the bad man." A critical component of most criminal
profiles are specific instances of the perpetrator’s conduct, which are used to show that the
defendant is also guilty of the present offense.

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To avoid this evidentiary barricade, some prosecutors have successfully offered a profiler’s
expert opinion about characteristics from the crime scene and the defendant’s psychological
evaluation, rather than the profile itself. When a party offers this kind of expert opinion as
evidence, Frye or Daubert must be satisfied. Unwary trial courts may permit the profile, crime
scene analysis, or the defendant’s psycho-logical evaluation, when the proper evidentiary
standard has not been satisfied. The following cases will examine both standards as they were
applied in cases involving criminal profilers who testified as expert witnesses.

B. Admissibility of Criminal Profiler Testimony Under Frye

1. Drake v. Portundo

Drake v. Portuondo, illustrates how a trial court may be tricked into allowing expert testimony
based on an unreliable theory that was not generally accepted within the field. In Drake, the
defendant appeals his convictions of two counts of second degree murder for ambushing and
killing a young couple
and performing post-mortem sexual acts on the female. The motive of the murderer in Drake
was likely related to sexual fantasy. New York courts follow Frye.

During Drake's trial, the prosecution called Dr. Richard D. Walter, a criminal profiler who
became a founding member of the Vidocq Society, a Pennsylvania-based criminal profiler
consulting group. Walter testified concerning the defendant’s motive for the murders, based on
a fictional sexual dysfunction syn-drome he “dubbed ‘picquerism,’ which is, ‘medically
speaking, nonsense,’ but appeared to account for the particular, gruesome circumstances of the
shooting.” On appeal, the court concluded that Dr. Walter’s theory was not generally accepted
in the field, nor was it reliable. Dr. Walter also improperly bolstered his credentials, presumably
to enhance his own credibility. Dr. Walter’s opinion so clearly drew a connec-tion between the
defendant and the murder, that “’the jury was likely to be impressed (if not inflamed) by
testimony that the defendant was a ‘picquerist’ who killed, mutilated, and abused his victims
to satisfy a warped sexual urge.” The Second Circuit Court of Appeals reversed and remanded
for a new trial.

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2. Commonwealth of Pennsylvania v. Distefano

In 2002, the Supreme Court of Pennsylvania affirmed a trial court’s decision to admit the
testimony of a profiler under the Frye test. The profiler had limited his opinion to a crime scene
analysis based on theories that were generally accepted as reliable in the field, and he avoided
any reference to the criminal

profile or any outright assertions of the defendant’s guilt. This case demonstrates that profilers
may tes-tify, so long as they leave any inference of guilt for the jury to decide.

C.Admissibility of Criminal Profiler Testimony Under Daubert

1. Masters v. People of the State of Colorado

In 2001, Colorado abandoned Frye and opted for a combination of Daubert and the older
version of Federal Rule of Evidence 702 (pre-1976 amendment). Thereupon, Colorado courts
only needed to in-quire as to the reasonable reliability of the expert’s scientific evidence,
emphasizing the “broad” and
“liberal” attitude toward those inquiries. In 2002, the Supreme Court of Colorado rendered an
opinion in Masters v. People that dealt with expert testimony of a criminal profiler.

In Masters, the defendant was convicted of murder based in part on the testimony of criminal
profiler Dr. Reid Meloy. Physical indications at the scene led investigators to conclude that the
victim had been standing at the street curb outside of the defendant’s home when she was
ambushed from behind and stabbed with a serrated blade.

The victim’s body was then dragged over 100 feet into a field near the defendant’s home, where
the victim was stabbed, her face was scratched in a distinct fashion, and her genitals were
mutilated. Investigators had copious circumstantial evidence linking the defendant to the crime.
Inside the de-fendant’s home and in his high school locker, police recovered hundreds of
writings and drawings that conveyed the defendant’s hatred of women, his fascination with
brutally stabbing women and then dragging their bodies into remote places to be dismembered.
He had two maps of the crime scene and a sizable cache of survival knives similar to those
used to kill the victim. Many of the writings and drawings depicted victims killed from behind

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in a surprise attack with distinctive scratch marks on their faces.118 One particular drawing
found in the defendant's backpack on the day after the murder aroused suspicion. It depicted
someone dragging a body by the armpits with blood dripping from its back, leaving a bloody
trail.

This was precisely the method that investigators determined the victim had been movedfrom
the street to the open field. When investigators inquired about the drawing, the defendant
explained that he drew it to “get something out of his system” because it was bothering him.
Lastly, when investigators asked the defendant if he had ever thought about committing a
murder like this one, he responded in the affirmative.

When investigators asked the defendant for advice concerning the investigation, the defendant
suggested that investigators search a ditch near a particular bridge. A survival knife with a
serrated blade was eventually recovered from the ditch near the bridge.
Notwithstanding this circumstantial evidence, no direct evidence was found to link the
defendant to the crime, so he was not immediately charged. Nearly a decade after the murder,
police retained fo-rensic psychologist Dr. Reid Meloy, who then reviewed the evidence and
wrote a report which implicated

the defendant as the perpetrator. The prosecution put Dr. Meloy on the witness stand to testify
about “the identity of the perpetrator, the motivation and premeditation of the defendant, the
defendant’s planning of the crime, his opportunity to commit the crime, and his subsequent
knowledge of the crime.” The defense objected to Dr. Meloy’s testimony on the grounds that
it was improper character evidence.1 The trial judge overruled the defendant’s objection,
allowing Dr. Meloy to testify.

Dr. Meloy testified about his training and experience investigating sexual homicides, and he
ex plained some of the techniques he used to identify evidence of fantasies in relation to sexual
homicide.130 Dr. Meloy explained that fantasies often trigger homicide and that the
defendant’s writings and drawings tended to show that he had such fantasies. Dr. Meloy
explained the relevance and definition of fantasy, pointing out the writings and drawings which
supported his opinion. The trial court prohibited Dr. Meloy from testifying that the defendant
fit the profile of a sexual murderer. The defendant was convicted of first degree murder. The
court of appeals affirmed the trial court’s decision. On appeal, the Supreme Court of Colorado

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held that the trial court did not abuse its discretion in admitting Dr. Meloy’s testimony. The
Colorado Supreme Court limited its review to

“whether the scientific principles underlying Dr. Meloy's testimony were reasonably reliable.”

The court recognized that because social science “attempts to understand highly complex
behaviour patterns, it is necessarily inexact. However this does not make it per se
inadmissible.” The court based its conclusion on the fact that Dr. Meloy had been qualified
five times as an expert in sexual homicide, and that the prosecution established that the sexual
homicide evidence elicited from Dr. Meloy was generally accepted within the forensic
community. Dr. Meloy testified about the extensive body of specialized li-terature dealing with
sexual homicide, and that researchers have been studying sexual homicide for over
100 years. He also noted that research had developed to include the systematic comparison of
groups of sexual homicide perpetrators to control groups.

Dr. Meloy’s opinion never made the inferential leap for the jurors as to the defendant’s guilt.
Dr. Meloy opined that characteristics found at the crime scene indicated a sexual homicide
motivated by fantasy, which was a well-documented theory and generally accepted in his
field.1 These expert crime scene analyses are also admissible in Frye jurisdictions as “pure
opinion” based on experience, rather than science. It was also Dr. Meloy’s opinion that many
of the defendant’s writings and drawings strongly indicated that he fantasized about
committing sexual homicide. To again borrow Lord Sumner’s comparison: the defendant’s
writings and drawings strongly suggested that he was a bad man, but Dr. Meloy never opined
that the defendant was the bad man. The final step in the syllogism, connecting the murder to
the defendant, was left within the province of the jury to decide. Dr. Meloy never told the jury
that the defendant probably committed the murder. Had the trial court not limited the profiler’s
testimony, this case would likely have been reversed.
Dr. Meloy never implied that the defendant did anything improper in the past. An innocent
person may have fantasies about committing sexual homicide, but that doesn’t mean he or she
is a murderer. Here, Dr. Meloy was asked to review evidence that the defendant had written
and drawn. The images were disturbing, but without Dr. Meloy’s testimony a reasonable juror
would likely not have appreciated the significance or the relevance of the material. Dr. Meloy
analyzed the murder and the materials sepa-rately, but he left the inferential leap between the
two for the jury to make.

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IX. Conclusion

The field of criminal profiling has made considerable progress towards becoming a legitimate
sub-specialty of forensic psychology. As research progresses, profilers will have increasingly
reliable scientific foundations for their opinions. Many theories and techniques underlying
criminal profiles are presently regarded as experimental and unreliable by most forensic
psychologists. Thus, profilers must hurdle Frye or Daubert before their opinions may be
admissible in court. As Frye is more restrictive, testimony admissible under Frye will almost
certainly be admissible under Daubert. The Drake, Distefano, and Masters cases provide some
guidance as to how profilers may successfully, and properly, overcome Frye and Daubert
challenges.

The violent offender often demonstrates ‘ritualistic behaviour’ that results in linking the
offender to the crime by recognizing the technique that has been consistent at each crime scene
(Bosco, 2010). None of the published work on criminal profiling has been able to tap the
complex nature of the process and an effort needs to be made in that direction. Criminal
profiling process is also of great worth when it comes to treatment planning of known criminals
but more empirical studies need to be carried out in this field in order to improve our
understanding of this population. Considering the dearth of researches on criminal profiling in
India, it might be suggested that psychologists and forensic experts should work together to
conduct more empirical studies to understand and validate the criminal profiling process. They
should also consider the vast amount of information that surviving victims of crimes could
provide as this information is largely ignored. Close examination of solved profiling cases as
well as of the unsolved profiling cases should be carried out to ensure consistent improvements
in the area of criminal profiling. Use of computer programs and other information databases
are recommended so as to make the process more standardized.

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