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Each reply must be at least 400 words in length and include citation(s) and two
references in APA format. These responses are to be informative and contribute to
advancing the knowledge of the topic. This is the minimum required.
Please make a response to these posts:
Post 1
ning some of the reasons an expert may not be allowed to testify about a profiling report
and whether I believe profiling reports should be allowed into court, there are a number
of aspects to consider in attempting to answer the question. Some of these aspects are
examined here.
As to the admissibility of a criminal profiling report deemed “expert testimony” by a
court, standards exist for this admissibility, as well as many questions and concerns about
it. Yet, it appears that criminal profiling continues to be used in many courts of law. Why
is the question at issue.
Depending on the area of jurisdiction and the particular court, much like psychologists
(and profilers sometimes are psychologists), criminal profilers are often allowed to testify
as expert witnesses based on their relevant education and experience. According to the
literature, “Profiling does have the potential to serve as useful and important evidence in
certain trials. However, as in other fields that fall under the title of expert evidence, it
must be subject to rules of admissibility” (Petherick, 2005, p. 74). This expertise is
usually based upon the Frye and (more recently) Daubert standards, which were
established from the eponymous U.S. court cases (Scherer & Jarvis, 2014, para. 4). As to
these standards, the Daubert test “outlines six admissibility standards for expert
testimony to be admitted as scientific evidence: 1) reliability, 2) peer review and
scientific publication, 3) known error rates, 4) general acceptance by the scientific
community, 5) known standards and methodologies, and 6) applicability to the case (fit)”
(Scherer & Jarvis, 2014, para. 4).
Judges apply the Daubert test concerning admissibility of expert testimony, for example,
but many questions and concerns remain as to whether they are qualified to do so. For
example, according to the literature, “‘[F]ederal judges ruling on admissibility of expert
scientific testimony face a far more complex and daunting task in the post-Daubert
world.’ The task specifically is to ‘analyze not what the experts say, but what basis they
have for saying it'” (Kaufman, 2001, p. 14, para. 5). The article continues, “‘[Judges are]
largely untrained in science and certainly no match for any of the witnesses whose
testimony [they] are reviewing'” (Kaufman, 2001, p. 14, para. 5). In short, it is likely that
judges who are unqualified to determine the scientific merit of expert testimony are
making such determinations based on reports from criminal profilers that probably should
not be considered “scientific” or even “expert” in the first place.
After all, as to the FBI method of profiling, according to the literature, “[There is a] lack
of strong and consistent empirical validation for profiling” (Schlesinger, 2009, p. 83), and
“There has been little literature addressing the issue of what education and training one
must undertake to be considered a criminal profiler” (Petherick, 2005, p. 76). If there is
no recognized generally accepted and accredited standard for the education and training
of criminal profilers, it seems problematic that any court, led by a judge who is usually
not a criminal profiler or a scientist, could legitimately certify a criminal profiler as an
“expert.”
In addition, the U.S. Supreme Court cases of General Electric Company v. Joiner, 522
U.S. 136 (1997), and Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137 (1999),
expanded upon the earlier Daubert test (1993). Specifically, according to the Supreme
Court holding at issue and its interpretation of Federal Rule of Evidence 702, “[T]he
Court held that a federal trial judge’s ‘gatekeeping’ obligation applies not only to
‘scientific’ testimony, but to all expert testimony” (“Kumho,” 1999). In General Electric
(1997), the Court also looked at the gatekeeping role of federal judges related to the
exclusion of certain expert testimony (“General Electric,” 1997).
In summary, do I think that criminal profilers should be allowed to testify in court? Yes,
but this testimony should take place in very limited circumstances. In addition, the
“expert” should undergo examination by the court related to the latest and/or best test of
admissibility and the testimony likely should be limited to the opinion of the profiling
report, specifically related to any motivational analyses, modus operandi, and case
linkage analyses (Bosco, Zappalà, & Santtila, 2010, p. 185, para. 2). Still, it is difficult to
reconcile allowing “expert” testimony at trial from criminal profilers with little support in
the peer-reviewed and other scholarly literature and who are sometimes referred to as
“voodoo police” (“Catching Killer,” n.d.) by some detectives and other law enforcement
practitioners.
POST 2
Several decades ago, within the courts, criminal profiling was presented as a form of
scientific evidence in which psychologists, special agents of the FBI, along with others
were presented as experts in the field of crime scene analysis (Bosco, Zappalà, &
Santtila, 2010). However recent cases have forced the courts consider the admissibility of
offender profiling as scientific evidence. Per Bosco, et all (2010) “The change is closely
tied to the perceived difference between hard and soft science and, in this way, a new
issue for the Courts is whether offender profiling is scientific evidence and if offender
profiles should be admitted in the Courtroom” (Pg. 2).
The courts have again begun to examine the possibility of allowing expert evidence
through the Federal Rules of Evidence (Kocsis, Richard, Palermo, George, 2016). One
such instance was with State v Fortin I and State v Fortin II in which the courts
“considered the submission of various forms of behavioural analysis including the
examination of commonalities exhibited in two separate crime scenes that served as the
basis for determining whether the offences were perpetrated by the same offender.”
(Kocsis, et al, 2016, Pg. 5). The evidence brought by the prosecution was defined as a
type of specialized knowledge and the court “reasoned that if other disciplines that
feature investigative applications of their techniques could develop vast databases which
empirically validated their practises then this ‘behavioural analysis’ (irrespective of the
assigned label) of crime scenes should be no exception and thus likewise subjected to
scrutiny analogous to that of any other form of ‘science’.” (Kocis, et al, 2016, Pg. 5). In
the case of serial killer Wayne Williams, not only did criminal profilers assist in
identifying Williams, but FBI Psychologist John Douglas also continued to aid law
enforcement by giving instructions to the prosecutors on how to cross examine William
sat his trial (Mccrary, & Ramsland, 2003).
Much of the information regarding offender profiling finds its roots in the research
initially done by the Behavioral Science Unit of the FBI, particularly special agents
Douglas and Ressler, and has only recently been studied at length and has been found to
have “serious methodological flaws” (George, 2008, Pg. 17). George (2008) further
states that “members of the scientific community also criticize the profilers’
misrepresentation of psychological theory, as current psychological research does not
support profilers’ presumptions that traits are consistent across time and situations and
that different traits predictably relate to different personality types as well as the lack of
any empirical support of their claims” (Pg.10).
In two particular cases; Simmons v. State and State v. Stevens both the lower court and
the Court of Appeals agreed that the testimony of profilers was justified (Bosco, et al
2010). In each of these cases the issue of guilt was not in question but the motivation
behind the offense. The testimony of the experts was simply used to help explain the
crime scene evidence. In situations such as these I see the benefit of allowing the
testimony and the reports of offender profiling. Testimony such as this should only go to
the sentencing phase of the trial and not on the finding of guilt due to the issues
previously mentioned with criminal profiling.

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