forensic psychology - criminal profilers in the courtroom

Forensic Psychology: Criminal Profilers in the Courtroom

Adam Y. Zentner, J.D. January 2011

This article summarizes the field of forensic psychology and the sub-specialty of criminal profiling in the United States and the United Kingdom, and discusses the admissibility of expert testimony by criminal profilers in American courts.

FORENSIC PSYCHOLOGY ADAM Y. ZENTNER

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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 Sumner1

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 psy-

chology: 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 increa-

singly frequent instances of judges encountering and evaluating whether such testimony may be admitted

in evidence.

This article will (1) summarize the history and growth in forensic psychology and criminal profiling;

and (2) analyze 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 re-

ferred 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 per-

vasive legal standards will also be discussed.

II. What is Forensic Psychology?

Simply stated, forensic psychology is a field of psychology that operates within the legal system. Fo-

rensic 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.2 This list is


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not exhaustive, but should provide some guidance. At the behest of judges, prosecutors, or defense attor-

neys during various stages of litigation, forensic psychologists are often asked to perform evaluations such

as mental health diagnoses.3

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.”4 For in-

stance, in 19735 the University of Nebraska College of Law developed the first law-psychology joint-degree

graduate program in the United States, wherein “*s+tudents may obtain a J.D. and either a Ph.D. or an M.A.

in Psychology.”6 In 2001, the APA approved forensic psychology as an applied area of psychological specia-

lization.7

Today, forensic psychology is “the fastest growing speciality *sic+ within the discipline of psycholo-

gy.”8 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.9 In a newly published text by the British Psychological So-

ciety, 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 . . . . [T]here has been a growth of staffing in the Higher Educa-tion sector to accommodate course growth. There has also been a concomitant expansion in the breadth and depth of academic work.10

Well-known mainstream writers have published articles in widely circulated periodicals about the intriguing

uses of forensic psychologists within the legal community.11 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 . . . . [T]he primary driving force behind student and public interest has been the plethora of popular crime fic-tion 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.12

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.”13

One of the better-known fictional characters is Sir Arthur Conan Doyle’s “Sherlock Holmes.”14 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.”15 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 to-

ward this relatively new field. Forensic psychologists have fought a long and difficult battle to be accepted

in U.K. courts, but eventually they succeeded.16 In 1991, the Court of Appeal allowed forensic psychologist

testimony concerning personality traits.17 A decade later, forensic psychologists were heard by the House

of Lords for the first time in the case of Donald Pendleton,18 whose conviction was overturned on the basis

of fresh psychological evidence.19

III. What is Criminal (or Offender) Profiling?

As a sub-specialty of forensic psychology, criminal profiling involves the use of behavioral data col-

lected 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.20 Profilers look for clues such as: geography of the


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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.21 Next, profilers draft psychosocial composites

based on inferences about the perpetrator’s likely behavioral characteristics exhibited at one or more crime

scenes.22 The underlying assumption is that a perpetrator’s behavior will be consistent from scene to

scene.23 The more crimes a perpetrator commits, the more clues can be gathered to fashion a more accu-

rate profile, thus increasing the likelihood of apprehending a serial criminal or repeat offender.24

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.25 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.26 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.27 Dr. Brussel commented about his initial meet-

ing 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.”28 Nevertheless, Dr. Brussel agreed to help.

After reviewing the evidence, Dr. Brussel gave detectives an eerily specific profile of the perpetra-

tor. 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.29 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 but-

toned.”30 About a month later, police identified a suspect named George Metesky, who matched the


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profile in almost every respect. When police arrived to arrest Metesky at his home during the night, Me-

tesky readily confessed 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.31

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.32 BAU profilers

have refined the principles created by Dr. James A. Brussel,33 whom many forensic psychologists credit as

the father of criminal profiling.34

How a criminal profile is formulated from behavioral data depends on which approach the profiler

utilizes.35 Some common approaches include: Diagnostic Evaluation; Crime Scene Analysis (known as

“Crime Action Profiling” in the U.K.36); and Investigative Psychology.37 Howard Teten and the FBI’s Behavior

Analysis Unit (BAU) are credited with the development of one approach called Criminal Investigation Analy-

sis,38 which gained popularity after it aided in the capture of infamous serial killers Ted Bundy and Gary

Ridgway.39 This approach is often used in the United States to profile arsonists, sexual offenders, and sex-

ual homicides.40

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 support41 and empirical validation.42 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.”43 Profiles based on intuition and

guesswork will not withstand the prevailing evidentiary standards on expert testimony.


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Profiling in England developed earlier than in America,44 but British profilers still haven’t seen the

inside of a courtroom.45 Interestingly, while forensic psychology is increasingly welcomed into English

courts, criminal profiles remain barred.46 One British commentator surmised that profiling has “never been

admissible in the British legal system as expert evidence, because of definitional problems and disagree-

ments about the scientific knowledge base.”47

Another possible reason for this view is that many profiles closely resemble “cold reading” tech-

niques used by astrologers and psychics who make numerous vague and un-testable predictions, which no

one can prove are either true or false.48 Some of the suppositions are retrospectively construed as accu-

rate predictions, while inaccurate ones are quickly forgotten.49 Despite a well-documented history and the

impressive recent developments within criminal profiling, forensic psychologists in general still view profil-

ing as a “largely experimental field.”50 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.51

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.

IV. 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.52 According to Frye:

The rule is that the opinions of experts or skilled witnesses are admissible in evidence . . . [w]hen 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.53


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And:

[W]hile 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 es-tablished to have gained general acceptance in the particular field in which it belongs.54

The above text establishes some key elements in whether expert testimony may be admitted, namely: (1)

is the testimony helpful to the trier of fact, and (2) is it based upon scientific principles that are generally

accepted as reliable in the field.55

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, “*w+here

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.”56 The helpfulness standard varies

among jurisdictions. For example, an expert’s opinion in Tennessee must “substantially” assist a fact-

finder, otherwise the expert will be excluded.57

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.”58 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.”59 Re-

levancy is a matter of logic and experience, not a matter of law. Nevertheless, there must be some logical

connection between the facts and the inference they are intended to establish.60

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


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specialization;61 uniform practice standards and ethics rules;62 practitioner certification;63 peer-reviewed

research;64 standardized terminology;65 and formal recognition by authoritative organizations within the

field.66 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 demon-strable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized.67

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.68

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.69 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.71 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 Pharma-

ceuticals, Inc.72 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 scientific73 and

technical74 evidence.75 Thus, “general acceptance” still plays an important role in the inquiry, but is no

longer the dispositive factor.76 However, Kansas, among other states, refused to adopt the liberal Daubert


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standard77 and instead continues following Frye.78 Any expert testimony based on unverified or experi-

mental techniques must pass a Frye evaluation, otherwise it will be inadmissible in Kansas courts.79

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.80 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.81 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.82 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.83 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 infe-rences 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 spe-cial knowledge, skill, experience or training possessed by the witness.84

As a threshold matter, K.S.A. 60-456(b) is not difficult to hurdle. An expert in a Kansas court must personal-

ly 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.85 Justice Blackmun

wrote for the Daubert majority, and held: (1) that the Federal Rules of Evidence as amended in 1976 super-

sede the Frye “general acceptance” test, thereby lowering legal barriers for expert testimony;86 and (2) that

the trial judge has the task of ensuring that expert testimony is reliably founded, is relevant to the issues,

and will be helpful to the fact-finder.87 In other words, an expert’s testimony does not have to be generally


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accepted as reliable in the field, so long as the trial judge finds that the underlying theories and techniques

are indeed reliable.88

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.89 Soon thereafter,

Federal Rule of Evidence 702 was amended in 2000 to incorporate the holdings of Daubert and Kumho.90

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 prin-ciples and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.91

Daubert, or variations thereof, is probably the predominant standard in American courts.92 Daubert re-

laxed 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.93 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 necessar-

ily mean that the same person committed the present offense.94 As Lord Sumner famously remarked:

"[T]here 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."95 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.96 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,97 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.98 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.99 The motive of the murderer in Drake was likely

related to sexual fantasy.100 New York courts follow Frye.101

During Drake's trial, the prosecution called Dr. Richard D. Walter, a criminal profiler who became a

founding member of the Vidocq Society,102 a Pennsylvania-based criminal profiler consulting group. Walter

testified concerning the defendant’s motive for the murders,103 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.”104 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,105 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


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testimony that the defendant was a ‘picquerist’ who killed, mutilated, and abused his victims to satisfy a

warped sexual urge.’”106 The Second Circuit Court of Appeals reversed and remanded for a new trial.107

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.108 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.109 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).110 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.111 In 2002, the Supreme Court of Colorado rendered an opinion in

Masters v. People that dealt with expert testimony of a criminal profiler.112

In Masters, the defendant was convicted of murder based in part on the testimony of criminal profi-

ler Dr. Reid Meloy.113 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.114 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.115


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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 drag-

ging their bodies into remote places to be dismembered.116 He had two maps of the crime scene and a

sizable cache of survival knives similar to those used to kill the victim.117 Many of the writings and drawings

depicted victims killed from behind 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.119 It depicted someone dragging a body by the armpits with blood dripping from its back, leaving

a bloody trail.120 This was precisely the method that investigators determined the victim had been moved

from the street to the open field.121 When investigators inquired about the drawing, the defendant ex-

plained that he drew it to “get something out of his system” because it was bothering him.122 Lastly, when

investigators asked the defendant if he had ever thought about committing a murder like this one, he re-

sponded in the affirmative.123 When investigators asked the defendant for advice concerning the

investigation, the defendant suggested that investigators search a ditch near a particular bridge.124 A sur-

vival knife with a serrated blade was eventually recovered from the ditch near the bridge.125

Notwithstanding this circumstantial evidence, no direct evidence was found to link the defendant

to the crime, so he was not immediately charged.126 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.127 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 plan-

ning of the crime, his opportunity to commit the crime, and his subsequent knowledge of the crime.”128


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The defense objected to Dr. Meloy’s testimony on the grounds that it was improper character evidence.129

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.131 Dr. Meloy explained the relevance and definition of fantasy,

pointing out the writings and drawings which supported his opinion.132 The trial court prohibited Dr. Meloy

from testifying that the defendant fit the profile of a sexual murderer.133

The defendant was convicted of first degree murder.134 The court of appeals affirmed the trial

court’s decision.135 On appeal, the Supreme Court of Colorado held that the trial court did not abuse its

discretion in admitting Dr. Meloy’s testimony.136 The Colorado Supreme Court limited its review to

“whether the scientific principles underlying Dr. Meloy's testimony were reasonably reliable.”137

The court recognized that because social science “attempts to understand highly complex behavior

patterns, it is necessarily inexact. However this does not make it per se inadmissible.”138 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.139 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.140 He also noted that research had developed to include the systematic comparison of groups of

sexual homicide perpetrators to control groups.141

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 fanta-


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sy, which was a well-documented theory and generally accepted in his field.142 These expert crime scene

analyses are also admissible in Frye jurisdictions as “pure opinion” based on experience, rather than

science.143

It was also Dr. Meloy’s opinion that many of the defendant’s writings and drawings strongly indi-

cated 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 defen-

dant probably committed the murder.144 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.145

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.

V. Conclusions

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 admiss-


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ible 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.

From Drake, in a Frye jurisdiction, the court properly rejected Dr. Walters’ testimony, because: (1)

he based his opinion on experimental, fictitious, and altogether unreliable theories; and (2) his testimony

sought to show the defendant’s guilt through the behavioral characteristics at the scene.

Distefano showed that if: (1) a profiler’s testimony remains within the realms of reliable psychologi-

cal theory; and (2) avoids making inferences of guilt, then the profiler’s testimony may be admissible under

Frye.

Masters, in a Daubert jurisdiction, properly admitted Dr. Meloy’s testimony, because: (1) he based

his opinion on reliable theories of forensic psychology; and (2) he refrained from drawing conclusions of the

defendant’s guilt or drawing a direct connection between the defendant and the crime.

In these three cases, the fact that the expert is a “criminal profiler” is irrelevant. What is important

are the scientific research and theoretical foundations. Assuming a criminal profiler in a Kansas court limits

his or her opinion to crime scene analysis and defendant psychological evaluation or diagnosis, but avoids

any attempt to directly connect the defendant to the crime scene based on behavioral similarities, then

that profiler’s testimony will likely be admissible. Although profiler testimony is nearly nonexistent in Kan-

sas case law today, the recent growth in forensic psychology suggests that Kansas courts, among others,

will experience an influx of profiler opinion in the near future.

1 Thompson v. The King, [1918] A.C. 221, 236.

2 Terence W. Campbell & Demosthenes Lorandos, Specialty Guidelines for Forensic Psychologists, 2 CROSS EXAM. EXP. IN BEH. SCI. §

12:2 (Am. Psych’l Ass’n — Comm. on Ethical Guidelines for Forensic Psychologists, Mar. 9, 1991); see also, Brent E. Turvey & Wayne A. Petherick, Forensic Criminology 13 (Wayne A. Petherick ed., Elsevier Acad. Press 2010).


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3 Campbell & Lorandos, supra, at § 12:2.

4 David DeMatteo, et al, Educ. & Training Models in Forensic Psych., 3 TRAINING & EDUC. IN PROF’L PSYCH. 184 (Am. Psych’l Ass’n 2009).

5 Id.

6 Univ. of Neb. Coll. of Law, Nov. 22, 2010, http://law.unl.edu/academics/degree_programs.shtml#lap.

7 Kirk Heilbrun & Stephanie Brooks, Forensic Psych. & Forensic Sci.: A Proposed Agenda for the Next Decade, 16 PSYCH. PUB. POL'Y &

L. 219, 220 (2010).

8 John Horgan, Understanding Crim. Beh.: Beyond ‘Red Dragon’, UCC SCI. FACULTY PUB. LECTURE SERIES 2002-03, Feb. 11, 2002,

http://understandingscience.ucc.ie/naturalworld/Understanding_Criminal_behaviour.pdf.

9 Id.

10 Graham J. Towl & David A. Crighton eds., et al, Forensic Psych. 3 (British Psych’l Soc’y & Blackwell Publ’g Ltd. 2010).

11 E.g. Malcolm Gladwell, Dangerous Minds: Crim. Profiling Made Easy, THE NEW YORKER, Nov. 12, 2007,

http://www.newyorker.com/reporting/2007/11/12/071112fa_fact_gladwell.

12 Horgan, supra.

13 Thomas Harris, The Silence of the Lambs 1-5 (1988); The Silence of the Lambs (Orion Pictures 1991); see also, James A. George,

Offender Profiling & Expert Testimony: Scientifically Valid or Glorified Results?, 61 VAND. L. REV. 221, 223 (2008); see also, Gladwell, supra, at 2.

14 See generally, Arthur C. Doyle, The Complete Sherlock Holmes (Barnes & Noble Inc. 1991).

15 Arthur C. Doyle, A Study in Scarlet, in, THE COMPLETE SHERLOCK HOLMES 27 (Barnes & Noble Inc. 1991) (1887).

16 Gisli H. Gudjonsson, Psych. Brings Justice: The Sci. of Forensic Psych., 13 CRIM. BEH. & MENTAL HEALTH 159, 160 (2003) (Professor

Gudjonsson wrote this article based upon his inaugural lecture following his appointment to a personal chair in Forensic Psycholo-gy at the Institute of Psychiatry, King’s College, London).

17 Id.

18 Pendleton v. The King, [2001] UKHL 66 (discussed in Gudjonsson, supra, at 160).

19 Gudjonsson, supra, at 160.

20 Towl & Crighton, supra, at 148.


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21

John E. Douglas, et al., Crim. Profiling from Crime Scene Analysis, 4 BEH. SCI. & THE LAW 401, 406 (John Wiley & Sons Inc. 1986).


23 Id.

24 George B. Palermo, Homicidal Syndromes: A Clinical Psychiatric Perspective 19–22, CRIM. PROFILING: INT’L THEORY, RESEARCH, & PRAC.

(Richard N. Kocsis ed., Humana Press Inc. 2007).

25 George, supra, at 222; see also, Gladwell, supra, at 1.

26 Id.

27 Id.

28 Gladwell, supra, at 1.

29 See George, supra, at 222; see also, Gladwell, supra, at 1.

30 Id.

31 Id.

32 See George, supra, at 223; Horgan, supra, at footnote 2.

33 George, supra, at 223.

34 Towl & Crighton, supra, 149–50.

35 Damon A. Muller, Crim. Profiling: Real Sci. or Just Wishful Thinking?, HOMICIDE STUDIES Vol. 4 No. 3, 236 (Sage Publ’n Inc. 2000).


37 Muller, supra, at 236.


39 Id. at 149–50.

40 Id. at 149.

41 See Muller, supra, at 234.


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42

See Richard N. Kocsis, Crim. Psych’l Profiling: Validities & Abilities, 47 INT’L J. OF OFFENDER THERAPY & COMPARATIVE CRIMINOLOGY 126, 127-28 (Sage Publ’n Inc. 2003).

43 Douglas, supra, at 405; see also, John Douglas & Mark Olshaker, Journey Into Darkness 26 (Simon & Schuster Inc. 1997).


45 Caroline B. Meyer, Crim. Profiling as Expert Evid.? An Int’l Case Law Perspective 235, CRIM. PROFILING: INT’L THEORY, RESEARCH, &

PRAC. (Richard N. Kocsis ed., Humana Press Inc. 2007) (Citing The King v. Stagg, Cent. Crim. Court, London, 14th Sept. 1994.); see also, Towl & Crighton, supra, at 150 (Writing that U.K. courts are increasingly resistant toward criminal profilers).

46 Id.

47 Nathan Gregory, Offender Profiling: A Review of the Literature, THE BRITISH J. OF FORENSIC PRAC., Vol. 7, No. 3, pp. 29–34 (Pier Prof’l

2005).

48 Gladwell, supra, at 3; Towl & Crighton, supra, at 152.

49 Id.

50 Towl & Crighton, supra, at 9 and 157.

51 Horgan, supra.

52 Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923).

53 Id. at 1014.

54 Id.

55 Id.

56 Falls v. Scott, 249 Kan. 54, 63, 815 P.2d 1104, 1112 (1991).

57 State v. Stevens, 78 S.W.3d 817, 833 (Tenn. 2002).

58 KAN. STAT. ANN. § 60-401(b) (Current as of 2010).

59 FED. R. EVID. 401 (Current as of 2010).

60 State v. Trammell, 278 Kan. 265, 282, 92 P.3d 1101 (2004); see also, State v. Woolverton, 35 Kan. App. 2d 478, 485, 131 P.3d

1253, 1259 (Kan. Ct. App. 2006) aff'd, 284 Kan. 59, 159 P.3d 985 (2007).


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61

Heilbrun & Brooks, supra, at 219.

62 Id.

63 Id.

64 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 594, 113 S. Ct. 2786, 2797 (1993).

65 Heilbrun & Brooks, supra, at 219.

66 Id.

67 Frye v. U.S., 293 F. 1013, 1014 (D.C. Cir. 1923).

68 See generally, Heilbrun & Brooks, supra, at 219.

69 Terrence W. Campbell, Challenging Psychologists & Psychiatrists As Witnesses, MICH. B.J., Jan. 1994, at 68.

70 Id.


72 Daubert, supra, at 579.

73 Id.

74 Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167 (1999).

75 See Heilbrun & Brooks, supra, at 220.

76 Jennifer Sparks, Admissibility of Expert Psych’l Evid. in the Fed. Courts, 27 ARIZ. ST. L.J. 1315, 1318 (1995).

77 State v. Heath, 264 Kan. 557, 957 P.2d 449 (1998); Armstrong v. City of Wichita, 21 Kan. App. 2d 750, 757, 907 P.2d 923, 929

(Kan. Ct. App. 1995) (stating at 757: “We decline to apply Daubert.”).

78 State v. Price, 30 Kan. App. 2d 569, 43 P.3d 870 (Kan. Ct. App. 2002) rev'd on other grounds, 275 Kan. 78, 61 P.3d 676 (2003); see

also Smith v. Deppish, 248 Kan. 217, 807 P.2d 144 (1991).

79 State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992).

80 State v. Canaan, 265 Kan. 835, 848, 964 P.2d 681, 691-92 (1998).


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81

Id.; see Witte, supra; see also, Michael A. Barbara, Lawyer’s Guide to Kan. Evid. 162, KAN. LAW & PRAC. (2007).

82 Id.

83 State v. Marks, 231 Kan. 645, 654, 647 P.2d 1292, 1299 (1982); see also, State v. Washington, 229 Kan. 47, 53, 622 P.2d 986

(1981).

84 KAN. STAT. ANN. § 60-456(b) (Current as of 2010).

85 Meyer, supra, at 210.

86 Daubert, supra, at 579.

87 Id.


89 Kumho Tire Co., supra.

90 FED. R. EVID. 702 (Advisory Comm. Notes on 2000 Amendments) (Current as of 2010).

91 FED. R. EVID. 702 (Current as of 2010).


93 KAN. STAT. ANN. § 60-447 (Current as of 2010).

94 State v. Price, 275 Kan. 78, 89-90, 61 P.3d 676, 684-85 (2003).

95 Thompson, supra, at 236 (Emphasis in original).

96 See George, supra, at 242.

97 Drake v. Portuondo, 553 F.3d 230 (2d Cir. 2009).

98 Id.

99 Id. at 233.

100 See id. at 236.


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101

E.g. Nonnon v. City of New York, 32 A.D.3d 91, 101, 819 N.Y.S.2d 705, 712 (N.Y. App. Div. 2006) aff'd, 9 N.Y.3d 825, 874 N.E.2d 720 (2007).

102 Founders of the Vidocq Soc’y, Dec. 2, 2010, http://www.vidocq.org/who.html#Walter.

103 Drake, supra, at 233.

104 Id. (citing Drake v. Portuondo (“Drake I ”), 321 F.3d 338, 346 (2d Cir. 2003)).

105 See Drake, supra, at 237-38.

106 Id. at 245 (citing Drake v. Portuondo (“Drake I ”), 321 F.3d 338, 346 (2d Cir. 2003)).

107 Drake, supra, at 247–48.

108 Com. of Pa. v. DiStefano, No. 96-CR-737, Apr. 5, 1999, partly printed in PA. DISCOVERY & EVID. REP., Vol. 6, No. 12, Feb. 18, 2000,

aff’d, Com. of Pa. v. DiStefano, 2001 PA Super 238, 782 A.2d 574 (Pa. Super. Ct. 2001); see also, Hank Grezlak, Profiling Testimony Inadmissible in Murder Trial, PA. LAW WEEKLY, Apr. 12, 1999, http://www.corpus-delicti.com/court_hazelwalter.html.

109 Id.

110 People v. Shreck, 22 P.3d 68, 70 (Colo. 2001).

111 Id.

112 Masters v. People, 58 P.3d 979 (Colo. 2002) (en banc).

113 Id.

114 Id.

115 Id.

116 Id.

117 Id. at 983–84.

118 Id. at 984.

119 Id.

120 Id.


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121

Id.

122 Id.

123 Id.

124 Id. at 985.

125 Id.

126 Id.

127 Id.

128 Id.

129 Id.

130 Id.

131 Id. at 987.

132 Id.

133 Id.

134 Id. at 988.

135 Id.

136 Id.

137 Id.

138 Id. at 989 (citing Stevens v. People, 796 P.2d 946, 956 (Colo. 1990); see also, Christopher B. Mueller & Laird C. Kirkpatrick, EVID.

§ 7.22, at 766 (2d ed. 1999)).

139 Masters, supra, at 989.

140 Id.

141 Id.


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142

See Dion Gee & Aleksandra Belofastov, Profiling Sexual Fantasy: Fantasy in Sexual Offending & the Implications for Crim. Profil-ing 52, CRIM. PROFILING: INT’L THEORY, RESEARCH, & PRAC. (Richard N. Kocsis ed., Humana Press Inc. 2007) (Concluding, that “there appears to be a consensus among researchers that supports the presumptive role of fantasy as a causal mechanism in sexually aberrant behavior.”).

143 E.g. State v. Price, 30 Kan. App. 2d 569, 579, 43 P.3d 870, 877-78 (Kan. Ct. App. 2002) rev'd on other grounds, 275 Kan. 78, 61

P.3d 676 (2003) (Explaining that Frye only applies when science is the basis of the expert’s testimony, rather than experience which is admissible as “pure opinion.”).

144 C.f. Sparks, surpa, at 1319 (In reference to expert testimony concerning the reliability of eyewitness accounts: “Greater con-

cerns about admissibility arise when the expert goes beyond discussing general psychological trends and renders a clinical opinion as to whether a particular witness behaved in accordance with the observed trend, and thus, renders an opinion on whether an alleged event actually occurred.”).

145 See id.; see generally, Gee, supra, at 49–71.

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