Decision-making ProcessDecision-making Process
The decision section of the framework addresses the policy decisions made about the problem being addressed. Although offender profiling has not completely reached this stage of debate, Supreme Court rulings in the areas of expert testimony and criminal procedure hold significant implications for future developments in the field.
Prior to discussing the case law in this area, a point must be made. In the emergence section of this paper, the claims made by advocacy groups dealing with victims rights, missing children, and feminist concerns were presented. As noted in that discussion, these groups were able to push for the establishment of a National Center for the Analysis of Violent Crime (NCAVC) which is now housed in the FBI's Training Academy in Quantico. The implementation of a national crime scene tracking database (VICAP ) was mandated by Congress and will be discussed along with similar efforts in the next section which deals with implementation.
Unlike the lay witness who can only testify to those events that he or she has actually witnessed or heard first hand, the expert witness may testify to facts that he or she has observed directly, tests that he or she may have conducted, and to the relevant research evidence in his or her field (Bartol and Bartol, 1994). Also in contrast to the lay witness, the opinions of experts are both admissable and sought out by the defense and prosecution alike.
The courts have always feared the possible misguiding influence of expert witnesses on the judge or jury, and thus have required that the witness "possess sufficient technical or other scientific knowledge which will assist the trier of fact" (Bartol and Bratol, pg.116). Until 1993, the standard guiding expert testimony was known as the Frye test, which required that the evidence be "generally accepted" within the field. All that changed when petitioners Jason Daubert and Eric Schuller sued Merrell Dow Pharmaceuticals for their serious birth defects in William Daubert, et ux., etc., et al., Petitioners v. Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579 (1993).
In Daubert the Supreme Court held that the Federal Rules of evidence superseded Frye as the standard for expert scientific testimony at a trial. Thus, the "general acceptance" standard was rejected as a necessary precondition for the admissibilty of scientific evidence. These rules allow the judge to determine the boundaries of expert testimony, requiring only that the testimony pertain to "scientific" knowledge and "assist the trier of fact to understand the evidence or determine the fact at issue" (see Decision on Science in Courts Debated").It should be noted, however, that substantive scientific evidence may be objected to for hearsay reasons (see What Objections Can I Expect?).
Profiles outlines the relevant legal rulings pertaining to profiling, including the Federal Rules of Evidence noted above.
Fredirick J. McGavran concludes in his review of the Daubert Rule that it is dangerous because "judicial science is limited - to deciding lawsuits, not to proving the validity or invalidity of scientific theories. If we approach science with some humility , we may escape the opprobrium of being numbered with its persecutors".
This point aside, the rule highlights a standard of proof that offender profiling can be held to if validation research is carried out in this area. Such research will enhance profiling's utility in investigation (which is, after all, its primary function) by providing law enforcement with a known and potential error rate. Such knowledge can inform investigative decisions and recommendations based on the projected profile. Additionally, should a profiler be called to testify on the "signature" which links several crime scenes, the judge and jury will be better able to weigh its probative value in the context of all other evidence. Similarly, the value of testimony regarding "the level of organization" apparent in a crime scene could be enhanced in insanity trials should such empirical evidence be used to corrobarate the witness' conclusions.
Two examples of expert testimony using crime scene profiling are available on the web. In Foldelmesi v. Schepperly, crime scene material of a double homicide was used successfully to challenge the degree of mental retardation by the Plaintiff in a civil action. In State v. Roberts, the expert witness testified that the crime scene, defendant's history, and witness statements, were all consistent with a failed suicide attempt the victim of the homicide tried to foil.
There is also a relevant case law concerning the use of profiles as grounds for the development of "reasonable suspicion" to stop and search a suspected individual. In United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581(1989), agents stopped a defendant at the Honolulu airport because his behavior was consistent with one of the DEA's "drug courier" profiles.
The Court held that the above factors amounted to "reasonable suspicion" that the defendant was a drug courier regardless of whether or not they were consistent with the DEA's profiles. As long as the agents were able to articulate the factors leading to their conclusion, the court ruled that the fact that they may be set forth in a 'profile' "does not detract from their evidentiary significance as seen by a trained agent".
Justice Marshall dissented from the Court opinion stating that " a law enforcement officer's mechanistic application of a formula pf personal and behavioral traits in deciding whom to detain can only dull the officers ability and determination to make sensitive and fact-specific inferences 'in light of his experience', particularly in ambiguous or borderline cases",. He argued further that reliance on profiles runs the risk of subjecting innocent individuals to unwarranted police harrassment and detention. "This risk is enhanced by the profile's chamelon-like way of adapting to a particular set of observations".
One can easily imagine cases where individuals being investigated on the grounds that they "meet an FBI profile" might similarly try to argue a lack of reasonable suspicion or probable cause (a much higher standard of proof). The charge is still levelled by many (however unwarranted) that Wayne Williams was arrested and convicted in the Atlanta Child Murders solely because he conformed to the FBI profile.
Even with the validation research suggested by this author, profiles will never become a litmus test for determining whether or not a suspect is the actual offender. However, once again, it must be stated that by establishing the "known and potential" error rate of this investigative technique, we can examine the "totality of the circumstances" surrounding a particular case with a more informed base of knowledge. In the next section we will discuss implementation issues in the field of profiling, but we will return to these issues again in more detail in the evaluation section.
Emergence of the ProblemAssessment of the ProblemImplementationEvaluationReferences