Profiling Prosecution by UgbiPpa


									Support of Court Decision to Use Serial Murder Profiling as

                    Character Evidence

    Lindsey Green, Heather Hensley, and Jammie Schulte

                   University of Oregon
                                                     Profiling       2

                       Table of Contents


I.     Scenario                                                  3

II.    Summary of Argument                                       4

III.        Argument                                             5

       A. The serial murderer character evidence is not

       unduly prejudicial                                        5

       B. Permissible character evidence                         9

       C. Scientific basis for criminal profiling            12

IV.    Conclusion                                            15
                                                   Profiling   3


    In a serial murder trial, the prosecution sought to

introduce evidence that the defendant fit the profile of a

serial murderer to rebut defense witness claims that the

defendant was a man of good moral character. The defense

objected that this evidence would be unduly prejudicial,

that it was impermissible character evidence, and that it

had no scientific basis. Nevertheless, the court permitted

the testimony and the defendant was convicted.
                                                   Profiling   4

                    Summary of Argument

    This paper argues that the court made the correct

decision to allow evidence of a serial murderer profile to

rebut the defense witness testimony that the defendant was

a man of good moral character. This paper will show that

under the federal rules of evidence, the serial murderer

character evidence is not prejudicial and that it is

permissible character evidence. It will also show that a

scientific basis exists on which to prove that criminal

profiling has worked in the past, and most certainly works

in this case.
                                                      Profiling   5

 Support of Courts Decision to Use Serial Murder Profiling

                    as Character Evidence


A. The serial murderer character evidence is not unduly


    The first argument the defense made in objection to

the profiler evidence was that it was unduly prejudicial.

This is not true, as this case is not in accordance with

rule 403 of the Federal Rules of Evidence, and there are a

number of similar past cases where the court permitted

expert testimony by a Federal Bureau of Investigation

(F.B.I) profiler.

    If evidence is shown to be relevant, material, and

competent, and is not dismissed by an exclusionary rule, it

is admissible in court. For evidence to be relevant, it

simply needs to have some tendency to increase the

likelihood of the fact for which it is offered. For

evidence to be material, it must be offered to prove a fact

that is at issue in the case. For evidence to be competent,

the proof that is being offered must meet the requirements

of reliability (DiCarlo, 2001). The law recognizes however,

that certain circumstances call for the exclusion of
                                                      Profiling   6

evidence, which might not be relevant, material, or

competent. These circumstances entail risks that range from

inducing decisions based on emotion, to confusion of the

issues, to simply wasting time. These situations require

balancing the probative value and need for the evidence

with the harm it is likely to cause. There are a number of

rules that apply concretely to the application and use of

evidence. However, they are only guides for handling

situations where no specific rules have been formulated

(Legal Information Institute [LII]). Ultimately, the

decision lay in the hands of the court.

    In Rule 403, Exclusion of relevant evidence on grounds

of prejudice, confusion, or undue delay, it states

“Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay or needless

presentation of cumulative evidence” (LII).

    According to the Legal Information Institute, rule 403

of the Federal Rules of Evidence, “Unfair prejudice within

its context means an undue tendency to suggest decision on

an improper basis, commonly, though not necessarily, an

emotional one.” Vincent DiCarlo, in this case, states that

prejudice means improper harm (2001). In addition, the fact
                                                      Profiling   7

that evidence may be extremely harmful to one party’s case

does not necessarily make it prejudicial. The courts have

discretion to exclude otherwise admissible evidence to

prevent confusion, delay, or other issues (DiCarlo 2001).

    Recently profilers have been allowed in the court as

expert witnesses to give testimony against defendants. This

is allowed for under rule 702 in the Federal Rules of

Evidence (LII). The rule 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, 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. (LII)”

    In the case of Alabama v. Clarence Simmons (1999), the

murder of an elderly woman in Alabama attracted the

attention of the F.B.I. Profiling and Behavioral Assessment

Unit. The F.B.I. profiler’s testimony in this case was

admissible in court. This case was one of the first to use

profiler testimony to establish a critical element in a

capital murder case. The testimony was an important part of
                                                      Profiling   8

the state’s case against Clarence Simmons, and since state

laws place the burden on prosecutors to prove the

defendants state of mind in committing a crime, it is

advantageous to use expert witness testimony (Cochran


    Another case where an FBI profiler’s testimony was

admissible in court was the case of Masters v. People (as

cited in Dunsieth, 2003), where the Colorado Supreme Court

allowed the expert psychological testimony in a sexual

murder case. The court drew lines between professional

“knowledge”, character testimony, and “other acts” evidence

in order to support the appellate and trial court rulings.

The ruling allowed expert psychological testimony in

regards to the defendant’s fantasies, and how those

fantasies resembled those of an individual who might have

committed the crime. It thereby drew a connection between

the defendant and the crime without any direct evidence

that he committed the crime (Dunsieth 2003).

    The fact that the prosecution in the scenario

introduced evidence that the defendant fit the profile of a

serial murderer to rebut the defense witness claims was not

unduly prejudicial. Like the aforementioned cases, expert

testimony should be admissible in a capital murder trial

that involves serial activities, or bizarre murders to
                                                    Profiling   9

explain how a criminal of this nature thinks. The profiler

evidence should not be dismissed by exclusionary rule 403

because the probative value is not outweighed by prejudice.

Therefore, we are in support of the trial court’s decision

to permit the testimony.

B. Permissible character evidence

    The second part of the defense objection to allowing

the evidence of the serial murderer profile is that it was

impermissible character evidence. Impermissible character

evidence would not be relevant, material or competent.

However, the character evidence of a serial murderer used

to rebut a defense witness in this case is relevant,

material, and competent. When evidence falls within these

guidelines, it is generally permissible evidence.

    As stated earlier, to be relevant, evidence has to

prove that it has to do with the overall issue at hand. In

this case, the evidence offered was for a serial murder

case, and therefore has relevance to the case for which it

is submitted. To be material, evidence must relate to a

fact that was brought to the attention of the court during

the trial that relates to the crime committed. The evidence

was brought to the attention of the court in this scenario
                                                      Profiling 10

specifically to rebut defense testimony that the defendant

was a man of good moral character. This shows that the

character evidence in this case is material.

    Earlier in this paper, evidence was defined as

competent “if the proof that is being offered meets

traditional requirements of reliability” (DiCarlo, 2001).

Later this paper will explain why profiling is reliable on

a scientific basis.

    Now that it has been established that the evidence

being submitted was material, and relevant, it needs to be

shown that it is also permissible as character evidence

under the Federal Rules of Evidence. Rule number 404 in the

Federal Rules of Evidence deals with impermissible

character evidence, and the exclusions to the rule. The

rule states, “ Evidence of a person’s character is not

admissible for the purpose of proving action in conformity

therewith on a particular occasion (Federal Rules of

Evidence, 404).” However, rule 404(a)(1) states that this

rule applies except when, “Evidence of a pertinent trait of

character offered by an accused, or by the prosecution to

rebut the same (Federal Rules of Evidence).” This rule

shows that although character evidence is usually not

permissible to prove conduct, in a criminal case the

defendant is able to call a character witness to show that
                                                   Profiling 11

his usual character is inconsistent with the crime for

which he is being tried (DiCarlo, 2001). After the defense

has first called a character witness, the prosecution can

submit character evidence, such as a profile, to rebut.

This rule was of use in the case of Ray Jasper v. The State

of Texas (2000).

    Jasper was appealing a conviction in which the jury

found that he would be a continuing threat to society. He

felt that the character evidence against him was

insufficient to show that he would be a future threat to

society (Jasper v. Texas, 2000). The prosecution then

submitted character evidence to rebut his claims, showing

prior brutality and past criminal activity to show that, he

was a threat to society. Based on the use of a profile as

character evidence, the court was able to uphold the

original conviction.

    Under the Federal Rule of Evidence, the submission of

the serial murder profile as character evidence to rebut

the defense claims that the defendant was a man of good

moral character was correct. The submission was made after

the defense made a claim that the defendant was a man of

good moral character. The character evidence was directly

related to the defense claims, so it was relevant and

material. The evidence submitted was also competent, in
                                                      Profiling 12

that it was reliable as evidence. Based on these facts, the

defense claims that the serial murderer character evidence

was impermissible, were wrong. The court made the correct

ruling to allow the submission of this evidence.

C. Scientific basis for criminal profiling

    Profiling is a technical procedure that requires a

high level of training and expertise. As stated in rule 703

(LII), a profiler’s special training allows them to testify

as expert witnesses. An accurate portrayal of a criminal by

a professional profiler can lead police to a suspect that

could have been overlooked otherwise.

    A man who might have been overlooked without a profile

is George Metesky. From the 1940’s through the 1950’s, a

series of bombs in New York City had officials baffled.

Psychiatrist James Brussel was asked to study the crime

scenes and to offer any help he could. Based on the

evidence from the crimes and many known psychological

ideas, Brussel concluded that the offender was an unmarried

male in his fifties, of European decent. Using Brussels’

profile of a likely suspect, the police were able to arrest

George Metesky. Metesky fit the profile, he was an

unmarried man of European decent, and he was in his fifties
                                                      Profiling 13

at the time of the arrest (Winerman, 2004). With the break

in the case based on the profile, the nation started to

take notice of profiling as a useful tool in apprehending


    While psychological profiling has been used for

decades, the scientific evidence to support the technique

has only been recently studied. In a study published in Law

and Human Behavior (Vol. 14, No. 3), in the early 1990’s

Anthony Pinizzotto, of the FBI Behavioral Science Unit, and

Norman Finkel, of Georgetown University, tested a group of

FBI profilers, police detectives trained by the FBI,

regular police detectives, clinical psychologists, and

university students. Pinizzotto and Finkel grouped the

participants by their occupation (profiler, police,

psychologist, and student), and gave the groups’ detailed

information of the cases from two solved cases, a murder

and a rape. The groups were then asked for the “profile of

the type of people likely to commit such crimes (Kocsis,

2003).” The groups obtained profiles were compared to the

actual offenders of the crimes (Winerman, 2004). “The

trained profilers wrote longer and more detailed profiles,

and their profiles of the rapists were more correct than

any other groups (Winerman, 2004).
                                                    Profiling 14

    The findings by Pinizzotto and Finkel, as well as the

replicated studies by Kocsis, have indicated that profilers

are more accurate at predicting the characteristics of the

offenders than other groups, including police professionals

and clinical psychologists.

    Recent research has been conducted to elaborate on the

findings of Pinizzotto and Finkel. In this study, conducted

by Kocsis, Hayes, et al. (2003), the design was similar to

that of Pinizzotto and Finkel. Again, each group was given

two cases, one murder and one rape. Both of these cases had

been solved and there was an offender to base the actual

profile on. “Accompanying each of the case packages was a

33-item, multiple-choice questionnaire that was designed to

elicit an objective description of the probable offender

(Kocsis, 2003).” This experiment also found that trained

psychological profilers were better able to identify

correct characteristics of the offender when compared to

other groups.

    The successful use of profiling to apprehend criminal

has shown that it is a reliable method to use. Although the

data for the accuracy of profiling is limited, we must keep

in mind that profiling is still a relatively new field of

study. Only recently as profiling been used in a scientific

manner, and as the new science grows, so will our
                                                      Profiling 15

understanding of the process and our trust in it. The

defense claim that there is no scientific basis for

profiling is incorrect, and the court decision to use

profiling is correct.


    The three objections that the defense put forth in

this case were that the evidence was prejudicial,

impermissible, and that profiling has no scientific basis.

This paper has proven that these objections were incorrect,

and the court ruling to use profiling as character evidence

was accurate.

    The use of a psychological profiler’s testimony, as an

expert witness in this case, was admissible evidence to

rebut the defense witness claims of the defendant’s good

character. The serial murderer character evidence is not

unduly prejudicial because it does not violate rule 403 of

the Federal Rules of Evidence. There are a number of past

similar cases where this type of evidence was admissible in

court. The fact that evidence may be extremely harmful to

one party’s case does not necessarily make it prejudicial.

The profiler’s testimony is also permissible character

evidence because it is relevant, material, and competent

evidence.   If evidence meets these three requirements then
                                                    Profiling 16

it is admissible in court.   Lastly, there is scientific

basis that proves that psychological profiling has worked

in the past and is a reliable resource for expert


    While the study of profiling is relatively new, it is

not without evidence in support of the use of profiling. As

with any new field of study controversy does exists.

However, with the continued application of profiling, more

data will come forth that either makes profiling a very

necessary field of study in the legal system, or make it as

extinct as the Dodo bird.
                                                    Profiling 17


Cochran, Donald Q. (1999) Alabama v. Clarence Simmons: FBI

    “Profiler” Testimony to Establish an Essential Element

    of Capital Murder. Law and Psychology Review, Vol. 23.

DiCarlo, Vincent. (2001) Summary of the Rules of Evidence:

    The Essential Tools for Survival in the Courtroom.

    Retrieved January 30, 2005 from

Dunsieth, Neal W Jr. (2003). Admissibility of Expert

    Testimony. Journal of American Academy of Psychiatry &

    the Law. Vol. 31(4), 516-518.

Jasper, Ray v. State of Texas, No. 73,817 (Tex. Ct. App.


Kocsis, Richard N., Hayes et al. (2003). Criminal

    psychological profiling: Validities and abilities.

    International Journal of Offender Therapy &

    Comparative Criminology. Vol.47 (2), 126-144.

Kocsis, Richard N. (2004). Profiling the criminal mind:

    Does it really work? Medicine, Crime and Punishment

    Vol. 346.

Legal Information Institute. (n.d.) Federal Rules of

    Evidence. Retrieved January 29, 2005, from
                                                   Profiling 18

Winerman, Lea. (2004) Does Profiling Really Work? Monitor

    on Psychology. Vol. 35 (7) Retrieved February 16,

    2005, from

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