Offender Profiling and Expert Testimony: Scientifically Valid Or Glorified Results? James A
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Vanderbilt Law Review Volume 61 | Issue 1 Article 5 1-2008 Offender Profiling and Expert Testimony: Scientifically Valid or Glorified Results? James A. George Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Criminal Law Commons, and the Law and Psychology Commons Recommended Citation James A. George, Offender Profiling and Expert Testimony: Scientifically Valid or Glorified Results?, 61 Vanderbilt Law Review 221 (2019) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol61/iss1/5 This Note is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. NOTES Offender Profiling and Expert Testimony: Scientifically Valid or Glorified Results? 1. IN TRODU CTION .................................................................... 222 II. UNDERSTANDING OFFENDER PROFILING AND EXPERT T ESTIM O NY .......................................................................... 225 A . Offender Profiling.................................................... 225 1. H istorical Origin ........................................... 226 2. Goals, Theories, and Method of Offender P rofilin g ........................................................ 227 3. Offender Profiling in the Courtroom ............ 230 B. Admissibility of Expert Testimony .......................... 231 1. General Acceptance of Frye and the O ld R ule 702 ................................................. 232 2. The Daubert Trilogy and the N ew Rule 702 ................................................ 233 III. THE IMPERMISSIBLE ADMISSION OF OFFENDER P R OFILIN G ........................................................................... 236 A. Willful Ignorance: The Theoretical and Methodological Invalidity of Offender Profiling..... 237 B. JudicialDecisions on the Admissibility of Offender Profiling Testimony .............................. 240 1. Failed Attempts by Defendants to Proffer Expert Profiling Testimony ............. 243 2. Mixed Results for Prosecutors Who Proffer Expert Profiling Testimony ............. 244 C. Explanationsfor Decisions to Admit Expert Offender Profiling Testimony ....................... 251 IV. A PRESUMPTION AGAINST SELF-VALIDATING T ECH N IQ U ES ........................................................................ 255 V . C ON CLU SION ........................................................................ 259 222 VANDERBILT LAW REVIEW [Vol. 61:1:221 I. INTRODUCTION Holmes laughed. 'Watson insists that I am the dramatist in real life,' said he. 'Some touch of the artist wells up within me, and calls insistently for a well-staged performance. Surely our profession, Mr. Mac, would be a drab and sordid one if we did not sometimes set the scene so as to glorify our results. The blunt accusation, the brutal tap upon the shoulder-what can one make of such a denouement? But the quick inference, the subtle trap, the clever forecast of coming events, the triumphant vindication of bold theories-are these not the pride and the justification of our life's 1 work?' A hallmark of Sherlock Holmes is his ability to solve complex crimes with well-staged performances. His flair for the shrewd and dramatic apprehension of a suspect in an inscrutable case often left his loyal companion Watson in awe, the local police investigators mystified, and the perpetrator thwarted. Holmes's admirers speculated that he must have had a special gift, maybe even psychic powers, which allowed him to solve any case. In reality, as Holmes always explained to his slow-witted companions, it was his insightful, rational, and logical approach to solving the mystery that inexorably led him to the solution. Depictions of modern-day profilers are similar to depictions of Holmes, as they relate stories about bold predictions that eventually are vindicated. For example, a popular account of one of the first profilers, a psychiatrist named James A. Brussel, relates how he was contacted by police in 1957 to assist in identifying the "Mad Bomber" of New York, who was responsible for over thirty bombings in the city.2 After poring over photographs of the bomb scenes and letters from the bomber to newspapers, Dr. Brussel issued the following directive to police in a city in Connecticut: "Look for a heavy man. Foreign born. Roman Catholic. Single. Lives with a brother or sister. When you find him, chances are he'll be wearing a double-breasted suit. Buttoned." Based on this profile, police identified a suspect named George Metesky. Metesky matched the profile in almost every respect. Indeed, when the officers, after arriving at his house to arrest him, asked him to get dressed for the trip to the station, he emerged in a double-breasted suit.., buttoned. John Douglas, a profiler for the Federal Bureau of Investigation ("FBI") and the inspiration for the character Jack 1. 2 SIR ARTHUR CONAN DOYLE, The Valley of Fear, in THE COMPLETE SHERLOCK HOLMES 229, 283 (2003). 2. For the relevant facts of this account, see JOHN DOUGLAS & MARK OLSHAKER, MINDHUNTER: INSIDE THE FBI'S ELITE SERIAL CRIME UNIT 21 (1995) [hereinafter DOUGLAS & OLSHAKER, MINDHUNTER]. 2008] OFFENDERPROFILING 223 Crawford in the novel and movie The Silence of the Lambs,3 recounts a similar story.4 Assisting in the investigation of unsolved murders that occurred along hiking paths in heavily wooded areas around San Francisco, Douglas presented a profile to a crowded room of sheriffs deputies and investigators, describing a white blue-collar worker in his low- to mid-thirties with an IQ well above normal. After asserting that the offender would have a background of bed-wetting, fire- starting, and cruelty to animals, Douglas gave a pregnant pause and added: "Another thing ...the killer will have a speech impediment." According to Douglas, the officers in the room reacted skeptically, one even asking sarcastically if he came to that conclusion because the stab wounds looked like "stutter stab[s]." Like Holmes, Douglas was vindicated when police arrested a suspect who closely resembled the 5 profile, all the way down to his lifelong stutter. However, the similarities between modern-day profilers and Holmes become more important and consequential when the dramatic flair and glorified results extend beyond investigative work and enter the criminal courts as expert testimony. Douglas and other FBI agents from the Behavioral Analysis Unit ("BAU") have refined and popularized the offender profiling techniques originally developed by 6 Dr. Brussel and BAU founders Howard Teten and Patrick Mullany. Offender profiling originally was developed to assist local law enforcement in narrowing leads and identifying suspects in difficult serial killer and rapist cases. 7 Not long after its widespread adoption in such investigations, profilers began assisting in the prosecution of these crimes.8 Scholars have not explored whether courts admit or reject expert offender profiling testimony, perhaps because they have assumed that judges would rarely, if ever, admit it in criminal trials because it represents improper character testimony. 9 However, this 3. THOMAS HARRIS, THE SILENCE OF THE LAMBS 1-5 (1988); THE SILENCE OF THE LAMBS (Orion Pictures 1991); see also DOUGLAS & OLSHAKER, MINDHUNTER, supra note 2, at 171-72. 4. For the relevant facts of this account, see DOUGLAS & OLSHAKER, MINDHUNTER, supra note 2, at 148-56. 5. The analogy to Holmes has support from Douglas himself, who considers a comparison to the fictional sleuth "the highest compliment." Id. at 20. 6. Id. at 81. The BAU's original title was the "Behavioral Science Unit." To maintain consistency and reduce confusion, this Note employs the abbreviation "BAU" throughout. For additional information about the BAU, see the Investigative Programs Critical Incident Response Group Home Page, http://www.fbi.gov/hq/isd/cirg/ncavc.htm#bau (last visited Oct. 14, 2007). 7. DOUGLAS & OLSHAKER, MINDHUNTER, supra note 2, at 94-96. 8. See infra note 29 and accompanying text (discussing techniques of offender profiling). 9. See D. Michael Risinger & Jeffrey L. Loop, Three Card Monte, Monty Hall, Modus Operandi and "Offender Profiling' Some Lessons of Modern Cognitive Science for the Law of 224 VANDERBILT LAWREVIEW [Vol. 61:1:221 Note demonstrates that offender profiling testimony frequently is offered as scientific, technical, or other specialized knowledge, rather than character testimony, and correspondingly is evaluated and occasionally admitted as expert testimony. This Note also argues that offender profiling should not be admissible as expert testimony. Judges traditionally evaluated expert testimony under the "general acceptance" standard articulated in Frye v. United States, which requires judges to determine whether a technique generally is accepted by the relevant scientific community before expert testimony can be admitted. 1° Although some state courts still retain the Frye standard, federal courts and an increasing number of state courts now scrutinize expert testimony according to Federal Rule of Evidence 702 ("Rule 702"). This rule codified the Supreme Court decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc.11 and Kumho Tire Co. v. Carmichael,2 which together established new standards for scientific and nonscientific expert witness testimony in federal court. 13 Daubert and Kumho Tire identify trial judges as the "gatekeepers" of expert witness