IF THE PROFILE FITS: ADMITTING

CRIMINAL PSYCHOLOGICAL PROFILES

INTO EVIDENCE IN CRIMINAL TRIALS

I. INTRODUCTION

On June 29, 1988, the New Castle County (Delaware) Police

discovered the body of a woman at a construction site.' The police
found the woman naked, lying on her back with head injuries, tape
residue on her face, gray duct tape in her hair, and bruising around
her neck, nipples, wrists, and ankles.2 Although the police found tire
tracks leading to the body and blue fibers at the crime scene, they
were unable to locate footprints or significant quantities of blood.3
An autopsy report revealed that a blunt instrument caused the
woman's head injuries, a gripping instrument caused her breast
injuries, and the bruises were the result of ligature strangulation and
the binding of her hands and feet.4 The FBI analyzed the fibers
retrieved from the crime scene and discovered that they had come
from a carpet. After further investigation, the detective in charge
learned of an earlier unsolved 1987 murder that occurred at a
construction site three to five miles from the 1988 victim. 6 The earlier
crime scene was identical to the 1988 scene in all respects, except

1. See State v. Pennell, 1989 WL 112555 (Del. Super. Ct. Sept. 12, 1989); see also JOHN
DOUGLAS & MARK OLSHAKER, MINDHUNTER: INSIDE THE FBI's ELITE SERIAL CRIME UNIT
252-54 (1995) (relating the history of State v. Pennel from the FBI's perspective).
2. See Pennell, 1989WL 112555, at *1.
3. See id.
4. See id.
5. See id.
6. See id. at *2.
240 JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 54:239

that the earlier victim was partially clothed.7 Four days after the 1988
victim's body was found, the New Castle Police asked the FBI to
8
review the evidence and create a criminal psychological profile.
After analyzing the crime scene evidence, the victimology, and
geographic locations where each victim was found, the FBI profilers
generated a criminal psychological profile. 9 The profile indicated that
the offender was probably a twenty-five to thirty-five-year-old white
male who resided near the area where the killings occurred and who
worked in the construction trades.10 The profile also stated that the
offender drove a van and accumulated many miles while cruising for
victims." In conversations, he would present a macho image and
would enjoy dominating women, while having no difficulty
maintaining a steady relationship with a wife or girlfriend. 2 In
preparation for the crimes, the perpetrator would bring the weapons
13
required and destroy any evidence upon the completion of his acts.
With the FBI's criminal psychological profile in hand, the New
Castle Police began an undercover operation to apprehend the killer,
and, within a few days, they arrested the offender and seized his
van. 14 At trial, the defendant moved to suppress the carpet fibers that
were retrieved during the undercover operation. 15 The Delaware
Superior Court upheld the seizure of the van fibers, however,
primarily because of the criminal psychological profile.' 6 The profile
also played a role in the conviction of the defendant: FBI agents
testified to the similarities between the murders and the fact that the
same person had committed each one. However, the court did not
admit into evidence the actual profile used to determine whether the

7. See [Link] *2.

8. See id.
9. See id.
10. See id.
11. The van was necessary because multiple crime scenes would exist. See DOUGLAS &
OLsHAKER, supra note 1, at 252. There was the pick-up point, the scene of the actual torture
and killing, and the disposal site. See id. In order to transport the victim successfully and
without drawing suspicion, a large vehicle was necessary. See id.
12. See id.
13. See [Link] 252-53.
14. See id.
15. See id.
16. See infra notes 91-109 and accompanying text for a discussion of the role of profiles
in probable cause.
1998] CRIMINAL PSYCHOLOGICAL PROFILES

17
defendant had committed the crimes.
This Note addresses two aspects of criminal psychological
profiling: (1) it introduces criminal psychological profiles to
practitioners in order to encourage the use of such profiles, and (2) it
argues for the admission of criminal psychological profiles into
evidence during trial. Part II of this Note will address the first aspect
by describing criminal psychological profiles and illustrating their
use. Part III will place criminal psychological profiles within the
evidentiary framework of expert testimony through an examination of
other types of scientific and non-scientific evidence used in criminal
trials. Finally, Part IV discusses the second aspect of this Note,
advocating the admissibility of criminal psychological profiles as
permissible character evidence and as a credible basis for expert
testimony. Additionally, Part IV will address the misuse and
misunderstanding of profiles in the context of evidentiary rules.

II. CRIMINAL PSYCHOLOGICAL PROFILING

Criminal psychological profiling has its initial roots in Sir Arthur

Conan Doyle's and Agatha Christie's crime novels. 18 The detective
characters in those novels would pay close attention to crime scene
details and then would formulate a profile of the type of person most
likely to commit the crime.' 9 Police detectives began to mimic their
fictitious counterparts in these novels by occasionally seeking
psychologists' impressions after observing crime scene evidence of a
perpetrator's personality.20 This procedure proved helpful in

17. See Pennell, 1989 WL 112555, at*9.

18. See DOUGLAS & OLSHAKER, supra note 1, at 33; see also Joseph T. McCann,
Criminal Personality Profiling in the Investigation of Violent Crime: Recent Advances and
Future Directions, 10 BEHAV. SC. & L. 475,475 (1992).
19. See, e.g., SIR ARTHUR CONAN DOYLE, THE COMPLETE SHERLOCK HOLMES 90
(Doubleday 1930).
20. The first modem case involving a criminal psychological profile (though not termed
as such) was the "Mad Bomber" case in the 1950s. See DOUGLAS & OLSHAKER, supra note 1,
at 33. After a series of bombings at public landmarks in New York City, the police contacted a
psychiatrist, Dr. James Brussel, who studied crime scene photographs and letters sent to a
newspaper by the bomber. See id. Through his analysis, Dr. Brussel concluded that the bomber
lived in Connecticut, hated his father and obsessively loved his mother. See id. at 33-34. He
concluded his profile with the following statement: "Look for a heavy man. Middle-aged.
Foreign born. Roman Catholic. Single. Lives with a brother or sister. When you find him,
 242 JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 54:239

apprehending criminals and, with profiling's increased popularity, the

FBI's Quantico, Virginia training facility began looking into different
profiling techniques. 2 1 After years of researching the criminal mind
and borrowing from the fields of psychology and sociology, criminal
psychological profiling became an important part of the FBI's
investigations into serial and sexual offenses.22
A. Principlesof CriminalPsychologicalProfiling

A criminal psychological profile attempts to provide investigators

with specific information about an offender based on an examination
of a crime scene. 23 Profiles do not identify the specific person who
committed an offense, but, rather, describe the type of person most
likely to have committed the offense. 24 Therefore, this information
can assist with the investigation, apprehension, and prosecution of the
offender.2 A profile has three basic goals: (1) social and

chances are he'll be wearing a double-breasted suit. Buttoned." Id. at 34. Applying the profile to
the already narrowed field of suspects, the police apprehended an individual fitting the
description laid out by Dr. Brussel. See [Link]. Brussel's conclusion was amazingly accurate, to
the point that the suspect emerged from his bedroom wearing a buttoned double-breasted suit.
See id.
21. See [Link] 34-35.
22. See generally id. at 101-24 (providing a historical account of the development and
uses of criminal psychological profiling techniques by the FBI).
23. See RONALD M. HOLMES & STEPHEN T. HOLMES, PROFILING VIOLENT CRIMES: AN
INVESTIGATIVE TOOL 2 (2d ed. 1996).
24. See John E. Douglas et al., Criminal Profilingfrom Crime Scene Analysis, 4 BEHAV.
Sci & L. 401, 402 (1986).
25. Profiles assist with the prosecution of offenders in ways other than admitting the
actual profile into evidence. For example, profiles have been used in several cases to establish
probable cause to search a residence. See Brinegar v. United States, 338 U.S. 160, 171-73
(1949); State v. Pennell, 1989 WL 112555 (Del. Super. Ct. 1989). Investigators have also used
profiles to elicit confessions from suspected offenders. See JOHN E. DOUGLAS Er AL., CRIME
CLASSIFICATION MANUAL: A STANDARD SYSTEM FOR INVESTIGATING AND CLASSIFYING
VIOLENT CRIMES 306-08 (1992). Along with the typical contents of a profile, investigators will
also include suggestions of how to interview an apprehended offender. See id. For example, an
officer who has the criminal psychological profile of a person he is interviewing will know
certain personality traits of the offender that can be exploited to secure a confession. See [Link]
307. An officer can take advantage of this personality knowledge and attempt to persuade the
offender to confess by formulating different interview approaches that conform to the
offender's personality characteristics. See id. at 307-08.
The FBI employed this technique from the beginning of its profiling efforts. In the case of
Mary Frances Stoner, a twelve-year-old Georgia girl who had disappeared after a school bus
dropped her off near her home, the FBI was able to gain a confession by placing the murder
1998] CRIMINAL PSYCHOLOGICAL PROFILES

psychological assessment of the offender, (2) the evaluation of

belongings found in the suspected offender's possession, and (3)
suggesting strategies for interviewing the suspected offender upon
apprehension.2 6 Although criminal psychological profiling is helpful
with the investigation, apprehension, and prosecution of an offender,
only certain types of offenses lend themselves to profiling. 27 Such
offenses include "motiveless" murder,28 rape and sexual assault, 29 and
arson.30 Profiles assist in the investigations of these crimes because
offenses of these types tend to reveal something about the offender's
personality and behavior.3 '
Creating a criminal psychological profile involves an in-depth
study of the crime scene and the victim as well as psychological and
sociological data.32 When members of the FBI's Investigative

weapon in the interrogation room and relating to the offender that they understood his situation.
See DOUGLAS & OLSHAKER, supranote 1, at 190-92. The police were instructed to conduct the
interview at night so that the offender was more comfortable and, at the same time, understood
that the police were serious about the crime. See id. at 190. The police also stacked large files
with the offender's name on them on the table in front of where the offender sat. See id. The
police not only cast blame on the victim, but also related that they understood how the offender
felt and provided him with an explanation for his actions. See id. When the police confronted
the offender with the murder weapon, he became nervous and confessed to the crime. See id. at
192.
26. See HOLMES & HOLMES, supra note 23, at 3.
27. See Douglas et al., supra note 24, at 402-03.
28. A motiveless murder is a homicide where the reason for killing is not readily apparent.
See DOUGLAS ET AL., supra note 25, at 99. The FBI classifies homicides into six distinct styles:
single, double, triple, mass, spree, and serial. See Douglas et al., supra note 24, at 408. A single
homicide involves one victim and one homicidal event. See id. A double homicide involves two
victims and one event in the same location. See id. A triple homicide involves three victims and
one event in the same location. See id. Four or more victims in one event at the same location is
referred to as a mass homicide. See id. A spree murder involves multiple victims in multiple
locations with no cooling-off period between the murders. See id. at 409. Finally, a serial
murderer, the type usually requiring a profile, is one who commits three or more killings at
separate times with a cooling-off period between each one. See id. A serial murderer will also
differ from a mass or spree killer because the serial offender will target specific victims. See id.
Spree and mass murderers are more interested in the quantity of kills rather than who they kill.
See id. at 409.
29. Rape and sexual assault are conducive to profiles because of the communication
between the victim and offender. Cf. DOUGLAS Er AL., supra note 25, at 196-97. Such
communication and the method of abducting and carrying out the assault reveal important
information about the offender. See id.
30. The method used by an arsonist to start a fire reveals information about the offender.
See HOLMES & HOLMES, supra note 23, at 111-12.
31. See Douglas et al., supra note 24, at 402-03.
32. See HOLMES & HOLMES, supra note 23, at 39. Former FBI Special Agent John
 244 JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 54:239

Support Unit33 create a profile, they follow a series of five

overlapping stages.34 These stages resemble a medical diagnosis in
that a profiler will: (1) collect and assess data, (2) reconstruct the
situation, (3) formulate a hypothesis, (4) test it against known
information, and (5) report the results.35
A profile begins with the "Profiling Inputs Stage." 36 This step
involves the accumulation of crime scene evidence, victimology,7
forensic information, preliminary police reports, and photographs.38
Once all of the information is collected, the profiler begins the
"Decision Process Model Stage." In this stage, the profiler organizes
and arranges the information into a meaningful pattern. 3 9 This
process includes determining the type of crime committed, 40 the
primary intent of the offender,4 1 the risk of the victim,4 2 the

Douglas has stated that a profiler needs to get into the mind of the killer and the victim in order
to fully understand what occurred between the offender and victim during the commission of
the crime. See JOHN DOUGLAS & MARK OLSHAKER, JOURNEY INTO DARKNESS 28 (1997).
33. The Investigative Support Unit (ISU)of the FBI creates the profiles used by the FBI
and other law enforcement agencies who request them. [Link] & OLSHAKER, supra note
1, at 370.
34. See Douglas et al., supra note 24, at 406-15. Douglas terms the stages: (1) Profiling
Inputs Stage, (2) Decison Process Models Stage, (3) Crime Assessment Stage, (4) Criminal
Profile Stage, and (5) Investigation Stage. See id.
35. Seeid.at405.
36. Seeid at407.
37. A study of the victim is necessary to generate a useful and valid profile of the
offender. See HOLMES & HOLMES, supra note 23, at 181. The victimology, or the study of the
crime victim, assists in identifying the motive for the crime. See DOUGLAS ET AL., surpa note
25, at 7. The profiler considers the victim's physical traits, marital status, lifestyle, occupation,
education, personal demographics, medical history, personality, criminal history, and last
activities. See HOLMES & HOLMES, supra note 23, at 181. An examination of these
characteristics may reveal important information about the offender. For example, a
disorganized offender who commits a crime in order to prove his dominance over women will
select an easily manipulated and controlled victim. See HOLMES & HOLMES, surpa note 23, at
125.
38. See id.
39. Seeid.at406.
40. As a means of standardizing the investigation of crimes for which profiles can
contribute to the solution, the FBI's National Center for the Analysis of Violent Crime created
the Crime Classification Manual. See DOUGLAS ET AL., supra note 25, at ix-x. The Manual
classifies types of crimes under three main headings: homicide, arson, and rape and sexual
assault. See [Link] 1-2.
41. The primary intent of the offender may be criminal enterprise, emotional, selfish,
cause-specific, or sexual. See Douglas et al., smpra note 24, at 410.
42. The risk of the victim is the likelihood of the person being selected for the crime. See
id. at 411. This determination is based on the victim's age, lifestyle, occupation, physical
 1998] CRIMINAL PSYCHOLOGICAL PROFILES

43
willingness of the offender to take a risk, and the time and location
factors involved in the offense.44 Based on this information, the
profiler classifies the crime in the "Crime Assessment Stage. ' '4 This
includes a reconstruction of how the crime took place, the type of
crime, the level of organization at the crime scene relative to the
victim's risk level, the control of the victim and sequence of events,
the staging and the motivation for committing the crime, and the
dynamics of the crime scene.46 Upon completion of the classification
of the crime, the profiling process continues with the "profile stage."
This stage generates the actual profile, which includes information
such as demographics, educational level and intellectual functioning,
criminal history, military history, family history, habits and social
interests, residence in relation to the crime scene, type of vehicle
owned, personality characteristics, and suggested interview
techniques.4 7
At the heart of the profile stage lies the profiler's knowledge of
the offender's behavior. The profiler employs his or her behavioral
information by using inductive reasoning to move from people with
general characteristics to the specific offender profile.48 For example,
an organized or disorganized crime scene can provide behavioral

stature, resistance ability, and location. See id.

43. With multiple offenses, the geographic locations of the crime scenes play an important
role in profile construction. See HOLMES & HOLMES, supra note 23, at 148-49. Multiple crimes
committed by the same person in a relatively close area are typical of an offender who does not
feel comfortable committing the illegal act outside a familiar area. This indicates that the person
lives or works close to the crime scenes. See id. at 154-55. An increase in crimes that take place
further from the central location signifies that the offender has become more comfortable
committing the crimes. See id.
Information may even be derived from the geographic location of only one crime scene.
See [Link] 155-56. For example, the "disposal site," the location where a victim's body is taken
to be disposed of by the offender, is probably an area that is familiar to the offender and,
therefore, may provide information about the person's occupation or residence. See id. at 154-
56.
44. Location factors include the areas where the initial contact was made and where the
crime occurred, and whether a difference existed between the crime and death scenes. See id. at
42.
45. See id. at 412.
46. See [Link] 407. Of these factors, the offender's motive for committing the offense is
considered the most important See DOUGLAS & OLSHAKER, supra note 32, at 43. Only after
determining the motive can the profiler begin to draw conclusions about the offender. See id.
47. See McCann, supra note 18, at 477.
48. See DOUGLAS & OLSHAKER, supra note 1, at 34.
246 JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 54:239

information about a perpetrator. 49 The evidence from a disorganized

crime scene would show a "blitz-style" attack with no set plan of
action, indicating that the disorganized offender is probably of below-
average intelligence, socially inept, lives alone and close to the crime
scene, works in an unskilled profession, and, most likely, did not
graduate from high school.50 In contrast, an organized crime scene
would indicate that the offender has high intelligence and is generally
social.5 ' In addition, he would likely be married or have a steady
social relationship, and he would come across as masculine and
charming. 52 These characteristics, however, are not dispositive for all

49. A crime scene will not necessarily be organized or disorganized. See DOUGLAS Er AL.,
supra note 25, at 133. In most cases there will be indications of both characteristics. See id. A
mixed crime scene may be the result of multiple offenders with different personality traits or the
deterioration of an organized plan after unanticipated events occur. See id. Also, the offender's
personality may not be fully organized or disorganized, or the offender may have been under
the influence of drugs or alcohol. See id. Finally, in the case of a serial offender, the external
stress of an intensive police investigation may lead to the deterioration of the offender's
personality. See id. at 133-34.
50. See id. at 129; HOLMES & HOLMES, supra note 23, at 48. The Crime Classification
Manual depicts the murder of Jenny Sidal as an example of a classic disorganized crime scene.
See id. at 131-32. Sidal had been assaulted, killed, and left at the same scene. See id. at 132. The
offender used weapons of opportunity, namely his fists and arms, as opposed to a prearranged
set of tools, to commit the crime. See id. When the offender attacked, he did so in a rapid
manner and rendered his victim unconscious with one blow. See id. Also, the offender made no
effort to conceal his crime. See id.
51. See HOLMES & HOLMES, supra note 23, at 52. Traits common to an organized
offender include: careful planning of crimes, targeting of the victims, and a display of control at
the crime scene. See DOUGLAS Er AL., supra note 25, at 123. The case of Shari Faye Smith
serves as an example of how an organized offender operates. See DOUGLAS & OLSHAKER,
supra note 1, at 295-300. Shari Faye Smith was a senior in high school when she was abducted
at the mailbox in front of her family's South Carolina home. See id. at 295. Her father found her
car with the motor running, the door open, and Shari's purse on the front seat. See id. Soon
afterward, the family received a distorted-voice phone call from the kidnapper, who informed
them that a letter from Shari would arrive soon. See id. at 296. After several days another phone
call followed, and the caller stated that he and Shari were "one." See id. at 298. The next day
another call came from the offender in which he gave precise details of the abduction and the
time at which Shari wrote her letter to her parents. See id. at 299. The following day, the
offender called again and gave precise details regarding how to locate Shari's body, though still
not admitting that he killed her. See id. Tape residue was found at the crime scene, and the high
level of body decomposition indicated that the offender had killed Shari soon after the
abduction and then lied to her family regarding her condition so that the condition of her body
would be such that it would be difficult to determine the cause of her death. See id. at 299-300.
The delay in providing the location of the body, the skill needed to abduct Shari, and the precise
directions and specific times mentioned by the offender all served as indications of an
organized offender. See id. at 300.
52. See HOLMES & HOLMES, supranote 23, at 52.
1998] CRIMINAL PSYCHOLOGICAL PROFILES

profiles because most crime 53

scenes will have both organized and
disorganized characteristics.
Once a profile is created, it is sent to the investigating officers for
their investigative use.54 In addition, the profiler rechecks all of the
profile information so that there are no inconsistencies.55
The preceding process is a general methodology for creating
criminal psychological profiles. Two important principles underlie
this process.5 6 First, criminal psychological profilers base their
profiles, in part, on the principle that a personality will not deviate
from its norm when committing crimes. Such behavior manifests
8 59 and
itself modus operandi
in61theassociated ("MO"),5 signature,
62 Whilepersonation,
the MO may
staging with the crime scene.

53. See supra note 49 and accompanying text.

54. See Douglas et al., supra note 24, at 407.
55. See id. at 415. This process includes continuous updates to the profile as more
physical evidence from the crime scene becomes available. See id.
56. Criminal psychological profiling operates under the basic assumption that a crime
scene reflects an offender's personality. See HOLMES & HOLMES, supra note 23, at 39. The
Investigative Support Unit has found support for this assumption through repeated
investigations and interviews with offenders. See generallyDOUGLAS & OLSHAKER, supranote
1, at 101-24 (providing detailed accounts of investigations and interviews of various criminal
offenders). Psychological research into personality has also supported this assumption. Walter
Mischel and Yuichi Shoda have conducted numerous studies designed to gather empirical
support for their theory that a person's behavior can be accurately predicted based on a
cognitive-affective personality theory. See Walter Mischel & Yuichi Shoda, A Cognitive-
Affective System Theory of Personality:ReconceptualizingSituations, Dispositions,Dynamics,
and Invariancein PersonalityStructure, 102 PSYCHOL. REV. 246, 246 (1995). They reached
the conclusion that a person's behavior will remain consistent only in similar external
situations; in other words, a person will respond in a certain predictable way when faced with
certain situations. See id. at 251, 257. This consistent response is termed the behavioral
signature. See id. at 257. As applied to criminal psychological profiling, this research supports
the basic assumption that an offender's personality will be revealed through a crime scene
analysis. See DOUGLAS ET AL., supra note 25, at 261.
57. See DOUGLAS ET AL., supra note 25, at 249.
58. The term "MO" refers to learned behavior. See DOUGLAS & OLSHAKER, supranote 1,
at 251. An offender's MO determines how the offender carries out his crimes, and it changes
based on the situation. See id.
59. An offender's signature is something that must be done in order for the offender to
receive the necessary satisfaction from committing the offense. See id.
60. Personation reveals the offender's fantasies. See DOUGLAS ET AL., supra note 25, at
250. The offender's crime is a manifestation of those fantasies and provides insight into the
offender's mind. See id.
61. A "staged" crime scene occurs when a person alters the scene prior to the police's
arrival. See DOUGLAS ET AL., supra note 25, at 251. Staging at a crime scene serves one of two
purposes: it either protects the victim or diverts attention from the actual offender. See id. Such
248 JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 54:239

change as the offender63 becomes more comfortable, the personation

and signature will not.
A second general principle underlying criminal psychological
profiling is that those who create criminal psychological profiles
must possess certain qualifications.6 First, the person must have a
65
background inundestan the• This knowledge permits
psychology. • 66the profiler to
understand the mental dynamics involved in a crime. A knowledge
of sociology is also essential as it allows the profiler to understand
the social context surrounding the offense and how that context can
affect the offender.6 7 However, the most important qualification a
profiler must possess is experience in criminal investigation. 61 With

actions are usually taken by someone who knows the victim. See id. at 252. For example, in
1982, the FBI received a request for assistance in a crime that appeared to be a routine burglary
that ended up in sexual assault and murder. See DOUGLAS & OLSHAKER, supra note 32, at 44.
The victim was found face-up on her living room floor with her dress pulled up over her waist
and her underwear around her knees. See id. The room was in complete disarray; however,
there were no signs of a struggle, nor were there defensive wounds to the body. See id. The
victim had been killed with a hammer that belonged to her and her husband. See id. The
hammer was found in the kitchen where the offender had attempted to clean it. See id. In
addition, the husband reported some jewelry missing. See id. When the medical examiner
finished the autopsy of the victim's body, he concluded that there was no evidence of sexual
assault and that the victim had been drinking. See id. From this information, the FBI deduced
that the offender was someone the victim knew well. See id. The FBI further speculated that an
argument had ensued while the offender and the victim were drinking and that the offender lost
control at some point and subsequently staged the scene to appear as if a random robbery,
sexual assault, and murder had taken place. See id. at 44-45. With this knowledge, the police
suspected the husband was the culprit. See id. at 45. The husband later confessed to the crime.
See id
62. See Mischel & Shoda, supra note 56, at 251-52.
63. See DOUGLAS & OLSHAKER, supranote 1, at 251; DOUGLAS Er AL., supra note 25, at
251.
64. John Douglas has set forth the qualifications of a typical profiler. See DOUGLAS &
OLSHAKER, supra note 32, at 29-32. He indicates that most profilers have a background in
psychology and organized criminology. See id. at 29. In addition, the profiler is an organized
thinker, has field experience in criminal investigation, and exhibits the ability to make
judgments based on instinct See [Link] 30-31.
65. See HOLMES & HOLMES, supranote 23, at 7.
66. See [Link] 4.
67. See id. at 32. After conducting interviews with numerous sexual homicide offenders,
researchers at the FBI found that a precipitating stressful event was frequently the catalyst for
the offenders' crimes. See id. at 45. Such stressful events included: (1) conflict with females or
parents, (2) problems with finances, employment or marriage, (3) birth of a child, (4) legal
problems, or (5) the death of someone close to the offender. See id. at 46-47. Most offenders
claimed problems with women as the precipitating stressful event. See id. at 46.
68. See Anthony J. Pinizzotto, ForensicPsychology: CriminalPersonalityProfiling, 12 J.
POLICE SCI. & ADMIN. 32, 39 (1984).
1998] CRIMINAL PSYCHOLOGICAL PROFILES

this knowledge, a profiler understands how criminals 69

operate and,
thus, can develop a sense about a particular offender.

B. JudicialReaction to CriminalPsychologicalProfiles

Judicial use of criminal psychological profiling has a poor track

record as a result of misunderstanding, misuse, and misapplication,
and, thus, such testimony will usually not be admitted at trial.70 Even
when trial courts do admit such testimony into evidence, appellate
courts tend to reverse trial courts' decisions to do so. 7 1 Courts' refusal
to admit into evidence criminal psychological profiles is based on the
grounds that they constitute impermissible character testimony,72
improper subjects for scientific or expert testimony," and unduly
prejudicial evidence. 74 Some courts, however, have permitted the use
of profiles for the purpose of making probable cause determinations
and linking76
crimes.75 Appellate courts have generally upheld these
decisions.
In 1988, the Ohio Court of Appeals in State v. Haynes reversed
the trial court's decision to permit the testimony of a criminal profiler
in a criminal case.77 In Haynes, the defendant, Richard Haynes, faced
murder charges after he killed Douglas Fauver, a potential employer,

69. See id.

70. It took nearly ten years for any court to accept testimonial use of behavioral science as
it applied to profiling. See DOUGLAS & OLSHAKER, supra note 32, at 294. Special Agent Jud
Ray became the first member of the FBI's Investigative Support Unit to testify using criminal
psychological profiling. See id. He testified in the case against Kirby Anthoney, who faced
charges relating to the murders of a mother and her two young children. See id. at 283, 289. At
trial, the prosecutor sought to have Ray certified as an expert and testify regarding the profile
that he generated which led to Anthoney's arrest. See id. at 294. The judge refused to admit the
profile but permitted Ray to testify about the defendant's post-offense behavior and how it
reflected his guilt. See id. Based in part on Ray's testimony, the jury convicted Anthoney. See
id.; cf DOUGLAS & OLSHAKER, supra note 32, at 298.
71. See, e.g., Penson v. State, 474 S.E.2d 104, 106-07 (Ga. Ct. App. 1996); State v.
Roquemore, 620 N.E.2d 110, 112-17 (Ohio [Link]. 1993); cf State v. Fain, 774 P.2d 252, 257
(Idaho 1989) (upholding trial court's exclusion of a "psychological profile" prepared by the
FBI).
72. See Penson,474 S.E.2d at 106.
73. See Fain,774 P.2d at 257.
74. See State v. Haynes, No. 4310, 1988 WL 99189, at *4 (Ohio Ct. App. 1988).
75. See DOUGLAS & OLSHAKER, supra note 1, at 252.
76. See Pennell, 1989 WL 112555 at *8-*9.
77. See State v. Haynes, No. 4310, 1988 WL 99189 (Ohio Ct. App. 1988).
250 JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 54:239

in a knife fight.78 Over the defendant's objections, the trial court

permitted the state to introduce testimony from an expert in "criminal
profiles" to rebut Haynes's self-defense claim and prove that his acts
constituted a purposeful and calculated anger-retaliatory murder. 79
The Ohio Court of Appeals, however, disagreed with the trial court
and stated that the testimony from the criminal profiler should not
have been admitted because it constituted impermissible character
evidence and had a prejudicial impact on the jury.80 As a result, the
appellate court reversed Haynes's conviction.81
More recently, the Court of Appeals of Georgia ruled that a trial
court committed reversible error by admitting into evidence an FBI
serial arsonist profile.82 In Penson v. State, the defendant was
convicted of burglary and arson based on his illegal entrance and
subsequent setting of a fire in a county rescue building. 83 During its
presentation of evidence, the State introduced an FBI serial arsonist
profile that contained information on the findings of a study of serial
arsonists.84 The trial court admitted the evidence despite the facts that
the defendant was not charged with serial arson and the profile was
not used by police during their investigation. 85 The State used the
profile in connection with witnesses who testified regarding the
defendant's personal history and personality.86 In effect, the
defendant was implicitly compared to the serial arson profile. 87 The

78. See id. at *1.

79. See id.
80. See id. at *4-*5.
81. Seeid. at*7.
82. See Penson v. State, 474 S.E.2d 104, 106-07 (Ga. Ct. App. 1996).
83. See id. at 105.
84. See id. at 106.
85. See id.
86. See id. This testimony included statements that the defendant was twenty-six years
old, lived alone, had a tenth-grade education, was unemployed, did not own a car, and lived
within walking distance of the county rescue building that was set on fire. See id.
87. See id. Immediately after eliciting the testimony of the defendant's characteristics that
matched the profile, the State introduced the fire marshall who presented the profile evidence.
See id. The Georgia Court of Appeals, however, deemed this use of a criminal psychological
profile improper and determined that the evidence should have been excluded. See supra Part
II.A. The testimony did not reflect a specific profile that had been created based upon the
examination of the crime scene and crime scene evidence, but, rather, it reflected a general
profile of a serial arsonist. See Penson, 474 S.E.2d at 106. See generally HOLMES & HOLMES,
supranote 23, at 92-112 (providing a summary of how to profile an arson).
19981 CRIMINAL PSYCHOLOGICAL PROFILES

appellate court wasted little time in declaring that the testimony

constituted impermissible character evidence as the defendant had not
placed his character at issue.88 As a result, the court reversed the
defendant's conviction. 89
In the above two cases, the profile evidence failed to pass muster
at the appellate level. However, criminal psychological profiles have
had more success when used to support probable cause for a search. 90
In State v. Pennell, the FBI generated a profile based on evidence
obtained from two murder victims who were killed under similar
circumstances. 91 The profile indicated that the offender was probably
a white male, twenty-five to thirty-five years old, who worked in the
construction trades and lived near the area where the crimes
occurred.92 The profile also stated that the perpetrator would drive a
van with high mileage, cruise the streets looking for a victim, and
portray a macho image while dominating women. 93 In addition, the
offender would choose disposal sites in areas with which he was
familiar.94 From this profile, the police tailored their
95 investigation to
target individuals that fit the profile's description.
The police implemented a sting operation and posted along
highways a female officer dressed as a prostitute to attract the
offender.96 She was instructed to pay attention to any van that
stopped to pick her up. 97 Eventually, a driver of a van who matched
the description of the profile approached the officer, and the officer
surreptitiously began to remove carpet fibers from the van's floor in
order to compare them with fibers obtained from the murder

88. See Penson,474 S.E.2d at 106.

89. See id. at 106-08.
90. See Brinegar v. United States, 338 U.S. 160, 171-73 (1949) (admissibility is not a
problem when seeking search warrants because the evidence used to obtain a search warrant
need not be based on evidence admissible at trial).
91. See State v. Pennell, 1989 WL 112555, at *2 (Del. Super. Ct. 1989). See generally
DOUGLAS & OLSHAKER, supra note 1, at 252-54 (providing the history of State v. Pennell from
the FBI's perspective).
92. See Pennell, 1989 WL 112555, at *2.
93. See DOUGLAS & OLSHAKER, supra note 1,at 252.
94. See id.
95. See id. at 252-53.
96. See id. at 253.
97. See id.
252 JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 54:239

victims. 98 Upon analysis of the carpet fibers, the FBI found that they
matched the fibers found on the other two victims. 99 After his arrest,
the defendant moved to suppress the fibers as well as other evidence
obtained as a result of search warrants based partially upon the fibers
seized. 100 The court upheld the seizure in part because of the FBI
profile that established probable cause to remove the fibers. 10 1 The
defendant was later convicted and executed for the multiple
homicides in part because the trial court also permitted the testimony
of a criminal profiler regarding the signature aspects of the crime and
an analysis of those aspects. 102
More recently, the Colorado Court of Appeals upheld a search
warrant based on an FBI profile even though the truth of other
statements in the search warrant had been questioned. 0 3 In People v.
Genrich, the defendant faced charges of extreme indifference
homicide for detonating three pipe bombs that injured one person and
killed two people. 1' 4 After he was convicted, the defendant appealed
the trial court's refusal to hold a veracity hearing l s regarding the
search warrant used by police to obtain bomb components from the
defendant's residence. 10 6 The defendant argued that certain
statements within the affidavit used to obtain the search warrant were
contradicted by other police reports at the time that the affidavit was
signed. 10 7 The court stated that, even without the contested
information, the remaining information, which included an FBI
profile that significantly matched the defendant, was sufficient to

98. See id.

99. See id.
100. See State v. Pennell, 1989 WL 112555, at *1 (Del. Super. Ct. 1989).
101. [Link]*9.
102. See DOUGLAS & OLSHAKER, supra note 1, at 253. Criminal profiler John Douglas's
testimony focused on the signature aspects that were revealed through the methods of torture
employed by Pennell. See id. These aspects included the use of tools on the victim's sexual
organs. See id. In addition, all of the wounds were inflicted before the victim's death. See
DOUGLAS ET AL., supra note 25, at 265. All of the evidence indicated Pennell's desire to
dominate his victims and make them suffer. See id.
103. See People v. Genrich, 928 P.2d 799, 804-05 (Colo. Ct. App. 1996).
104. See [Link] 800-01.
105. A veracity hearing tests the sufficiency of an officer's affidavit for a search warrant.
See id. at 804.
106. See id.
107. See id.
1998] CRIMINAL PSYCHOLOGICAL PROFILES

10 8
uphold the validity of the affidavit.
Finally, the Pennsylvania Supreme Court has suggested that a
profile may even be necessary in cases in which the state seeks to
introduce evidence of similar acts. 1°9 In Commonwealth v. Hawkins,
the Montgomery County District Attorney attempted to introduce
against the defendant evidence of a prior criminal act that the
defendant allegedly committed in 1981.110 The court ruled that the
evidence was impermissible because it had no connection to the case
at bar."' However, while the details in both cases were strikingly
similar," 2 the court was nevertheless unconvinced and ended its
opinion by stating that "there is no evidence in this case of serial
killings or a' sophisticated
3
psychological profile that applies to [the
defendant]."

III. THE USE OF EXPERT TESTIMONY

Courts have long struggled with the use of expert testimony at

14
trial. In the past, problems centered around scientific and medical
testimony." 15 Only recently have courts faced questions regarding the
admissibility of social science evidence. 1 6 This section examines the

108. Seeid.at805.
109. See Commonwealth v. Hawkins, 626 A.2d 550, 553-54 (Pa. 1993).
110. Seeid.at552.
111. Seeid.at553.
112. See id. at 552. The Commonwealth pointed to the similarities between the two cases
including the fact that both victims were black, ages 14-15, female, Seventh Day Adventists,
and students at the same school. See id Both murders took place on hot days in the second-
floor bedrooms of houses where the defendant's family, but not the defendant, resided. See id.
Also, both victims had been strangled to death, found in the nude, stabbed, subjected to vaginal
trauma, and suffered a blow to the back of the head. See [Link] crime scenes evidenced
staging of a burglary or robbery and, additionally, the defendant washed his clothes after both
incidents, admitted horseplaying with the victims, and claimed they were flirting with him. See
[Link] 551-53.
113. Id. at 553 (emphasis added).
114. See Edward J. McDermott, NeededReforms in the Law of Expert Testimony, 1 J. AM.
INST. CRIM. L. & CRIMINOLOGY 698 (1911) (discussing problems surrounding the reliability of
experts receiving payment to give testimony).
115. See [Link] 699. Medical experts were the most frequent type of experts called to testify.
See id. However, many problems existed with their testimony, such as: (1)a lack of consensus
among experts, (2) the unethical performance of many experts that testified about anything so
long as they were paid, and (3) the use of "experts" who lacked the requisite qualifications to
testify about a particular subject See id. at 699-702.
116. One of the first notable uses of social science evidence was cited in Brown v. Board of
254 JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 54:239

history of expert testimony, beginning with the Frye' 17 standard, and

follows through to the Supreme Court's recent Daubert18 principle.
In presenting this history of expert testimony, this section will focus
on scientific evidence as well as psychological and sociological
evidence in the criminal context.' 9

A. The Frye Standard

20
James Alphonzo Frye was charged with second degree murder.
During his trial, he attempted to introduce evidence of a systolic
blood pressure deception test.12 1 The defendant claimed that this test
would determine if he told the truth regarding his claim of
innocence. 22 To support its admission, the defendant argued:
... the opinions of experts ... are admissible in evidence in
those cases in which the matter of inquiry is such that
inexperienced persons are unlikely to prove capable of forming
a correct judgment upon it, for the reason that the subject-
matter so far partakes of a science, art, or trade as to require a
previous habit or experience or study in it, in order to acquire a
knowledge of it. When 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

Education where the Court cited sociological studies indicating the detrimental effects of
separate-but-equal schools. See Brown v. Board of Educ., 347 U.S. 483,494 n.11 (1954).
117. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
118. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
119. Both types of evidence are used because criminal psychological profiles involve the
use of forensic evidence and are based on psychological and sociological principles. See supra
Part II.A.
120. See Frye,293 F. at 1013.
121. See [Link] 1013. The systolic blood pressure deception test was an early attempt at a lie
detector device, a forerunner of the modem polygraph. See EUGENE B. BLOCK, LIE
DETECTORS: THEIR HISTORY AND USE 25 (1977).
122. See Frye, 293 F. at 1013-14. The test measured the change in blood pressure when an
individual responded to questions. See id. at 1013. In theory, the test would register an increase
in blood pressure when the person lied. See id at 1014.
1998] CRIMINAL PSYCHOLOGICAL PROFILES

admissible in evidence.'"
The court concurred in the statement of the rule but found that the
systolic blood pressure deception test did not meet the required
"standing and scientific recognition among physiological and
psychological authorities as would justify the courts in admitting
expert testimony deduced from the discovery, development, and
experiments thus far made."' 24 From that opinion, the nation's
12
courts
established the necessary requirements for expert testimony. 1
Despite its widespread use, the Frye test has critics. Its greatest
challenge arose as states adopted the Federal Rules of Evidence,
which established an arguably different standard for the admission of
expert testimony. 126 An example of how the Frye test conflicted with
the Federal Rules of Evidence was demonstrated by the debate
regarding the admission of deoxyribonucleic acid ("DNA")
evidence.127 The first case that dealt with DNA evidence was

123. Id. at 1014.

124. Id. However, three years after the D.C. appellate court ruled against his appeal, Frye
was released from his life sentence due to the fact that someone else confessed to the crime. See
BLOCK, supra note 121, at 26.
One thing the Frye test does not require is perfect reliability. Evidence may be admitted
even if reasonable experts may disagree and the science underlying the opinion is not absolute.
Time of death determinations provide a good illustration of this type of admissible evidence.
See Edward [Link], ForensicScience: Time of Death Determinations,30 CRIM. L.
BULL. 76, 77 (1994). According to one article, time of death analysis is not an exact science as
many variables can affect the determination, and the assessment can become more difficult as
more time passes. See id at 76-77. Still, trial courts admit such evidence because it assists the
jury with their fact-finding determinations. See United States v. Maravilla, 907 F.2d 216 (1st
Cir. 1990) (stating that the district court did not abuse its discretion in concluding that a
pathologist's report determining the time of death would assist the trier of fact).
InMaravilla,the district court permitted testimony from a doctor who had not observed the
victim's body but only examined pictures. See id. at 219. Based solely on the degree of
decomposition and evidence provided by the prosecutor, the doctor determined the time of
death. See [Link] 219-20. Despite some skepticism, the court upheld the admission of the
evidence. See id. at 221; cf Imwinkelried, supra at 77 (stating that courts have been receptive to
time of death determinations while realizing the imprecision of such determinations).
125. See BLOCK, supra note 121, at 25.
126. Federal Rule of Evidence 702 provides: "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
testifythereto in the form of an opinion or otherwise." FED. R. EVID. 702.
127. See Paul C. Gianelli, CriminalDiscovery, Scientific Evidence and DNA, 44 VAND. L.
REv. 791 (1991); Note, DNA Profiling Evidence: The Need for a Uniform and Workable
Evidentiary Standard of Admissibility, 26 VAL. U. L. REV. 595 (1992); Comment, DNA
 256 JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 54:239

Andrews v. State. 28 In Andrews, the Florida court acknowledged the

question of the continuing vitality of the Frye test in light of the new
federal evidence rules.' 29 After discussing the two approaches, the
court decided to apply the "relevancy approach,"' 30 which focuses on
the relevancy of the evidence and the degree to which it assists the
trier of fact. As a result, the court permitted the use of DNA evidence
due to the reliability of the procedures
1 31
involved and the qualifications
of the scientists performing the test.

B. The Daubert Principle

Rule 702 of the Federal Rules of Evidence provides an alternative

standard for the admission of expert testimony.132 The Rule focuses
on whether the scientific, technical, or specialized evidence will
"assist the trier of fact" and requires that the person giving such
evidence be qualified as an expert through "knowledge, skill,
experience, training or education."' 33 Rule 702 does not mention any
requisite general acceptability or reliability of the evidence and,
therefore, courts previously were split as to whether the new Rule
lowered the standard created in Frye. 34 However, in 1993, the

FingerprintingandIts Impact Upon CriminalLaw, 41 MERCER L. REV. 1453 (1990).

128. Andrews v. State, 533 So.2d 841 (Fla. Dist. Ct. App. 1988). The rape victim in this
case alleged that she was attacked by a strong black male. See id. at 842. From the semen left
after the rape, the police discovered that the offender had 0-type blood. See id. at 843. In order
to connect the defendant to the crime, the police had DNA tests conducted on the semen and a
blood sample from the defendant. See [Link] lab followed a specific procedure to determine if
the DNA samples matched. See id. First, the DNA was cut at precise points, measured, and
transferred to a piece of nylon membrane. See id. at 848. Then, radioactive probes that were
programmed to recognize certain DNA fragments were inserted into the DNA samples. See id.
The DNA was then photographed by exposing x-ray film to the radioactive probes, and, once
photographed, the DNA samples were compared to determine whether a match existed. See id.
129. See [Link] 843-44.
130. See id. at 846-47. The "relevancy approach" permits relevant expert testimony that
will assist the trier of fact. See [Link] 846. Implicitly, the evidence, in order to be relevant, must
be reliable. See id.
131. See [Link] 849-50.
132. See FED. R. EVID. 702.
133. Id.
134. Compare United States v. Shorter, 809 F.2d 54, 59-60 (applying the "general
acceptance" standard), with DeLuca v. Merrell Dow Pharmaceuticals, Inc., 911 F.2d 941, 955
(3d Cir. 1990) (rejecting the "general acceptance" standard).
1998] CRIMINAL PSYCHOLOGICAL PROFILES

135
Supreme Court in Daubert v. Merrell Dow Pharmaceuticals
announced a clear36
standard for scientific expert testimony in the
federal courts. 1
After providing a detailed history of the Frye standard and the
Federal Rules of Evidence, the Court put forth the two-part test for
admitting scientific expert testimony based on Rule 702.137 The test
consists of a determination by the trial judge of whether the expert
will be testifying "to (1) scientific knowledge that (2) will assist the
trier of fact to understand or determine a fact in issue."'138 First, the
Court determined that the "scientific knowledge" requirement created
an evidentiary reliability standard that required the expert's inference
or assertion to arise from the scientific method, i.e., appropriate
validation. 139 Second, the Court interpreted the words "assist the trier
of fact to understand the evidence or to determine a fact in issue' as a
relevancy requirement. 140 To be relevant, the evidence must relate to
some issue in the case and provide a valid scientific connection to the
pertinent inquiry. 14 1 In summary, the Court required that the evidence
"rest on a reliable foundation and is relevant to the task at hand." 42

C. Admitting Non-Scientific Evidence

Even before the creation of the Daubertprinciple, courts struggled

135. 509 U.S. 579 (1993).

136. Seeid. at 582.
137. See id. at 585-89, 592. It is important to note that the Court limited its holding to the
admissibility of scientific expert testimony. See id. at 590 n.8. Other courts refuse to apply
Daubertto types of evidence other than the scientific evidence discussed by the Court. See, e.g.,
United States v. Starzecpyzel, 880 F. Supp. 1027, 1041 (S.D.N.Y. 1995). In addition,
commentators have not been enthusiastic about the application of Daubert to quasi-scientific
evidence. See, e.g., Lisa M. Agrimonti, Note, The Limitations of Daubert and its
Misapplication to Quasi-Scientific Experts, A Two-Year Case Review of Daubert v. Merrell
Dow Pharmaceuticals, Inc., 35 WASHBURN L.J. 134 (1995). This leaves open the question of
the standard for technical or other specialized knowledge. See id.
138. Daubert,509 U.S. at 592.
139. See id. at 590. Whether the proposed evidence is valid requires an analysis of: (1)
whether the conclusion to be drawn from the evidence can be tested; (2) whether the procedure
and basis for the conclusion has been subjected to peer review and publication; (3) the potential
rate of error of the scientific technique involved; and (4) standards of control for the technique's
operation. See id. at 593-94.
140. Id.at591.
141. Seeid. at 591-92.
142. Id. at 597.
 258 JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 54:239

143
with the admissibility of social science evidence in the courtroom.
Courts routinely recognized the need for psychological testimony
when the issues involved sanity and competency to stand trial. 14
However, when the same psychologists began testifying in cases
involving rape trauma syndrome, battered wife syndrome, the
fallibility of eyewitness identification and the psychology of child
abuse, the courts created various arguments to exclude the
evidence. 145 At the root of these arguments was a distrust of social
science evidence. 146 Courts have often cited problems with this type
of evidence, such as the lack of certainty surrounding its conclusions
and the inability
147
of judges and juries to properly analyze the
methodology.
When the Supreme Court articulated the Daubert principle, the
debate shifted to whether the principle covered psychological
evidence. 148 Some claim that the evidence is not science and,
therefore, the standard does not apply. 149 Others argue that Daubert
does apply because psychological evidence has a strong scientific
foundation.150 Still others believe that because Daubert's principle
created such a liberal standard, the evidence would come in
regardless of the strength of psychological evidence's scientific
foundation. 15' Despite the lack of uniformity in these arguments,
courts have yet to decide conclusively in favor of any side.

143. See David McCord, Syndromes, Profiles and Other Mental Exotica: A New Approach
to the Admissibility of NontraditionalPsychologicalEvidence in Criminal Cases, 66 OR,L.
REV. 19,21-24 (1987).
144. See id. at 23.
145. See [Link] 24-26.
146. See Constance R. Lindman, Note, Sources of Judicial Distrust of Social Science
Evidence: A Comparison ofSocial Science and Jurisprudence,64 IND. L.J. 755,755 (1989).
147. See Joseph A. Colquitt, Judicial Use ofSocial Science Evidence at Trial, 30 ARIZ. L.
REv. 51, 55 (1988).
148. See generally Agrimonti, supranote 137.
149. See Edward J. Imwinkelried, The Next Step After Daubert: Developing a Similarly
Epistemological Approach to Ensuring the Reliability of Nonscientific Expert Testimony, 15
CARDOZO L. REv. 2271, 2273-74 (1994) (rejecting the application of the Daubert test to
nonscientific expert evidence).
150. See Krista L. Duncan, Note, "Lies, Damned Lies, and Statistics"? Psychological
Syndrome Evidence in the CourtroomAfter Daubert, 71 IND. L.J. 753, 771 (1996).
151. See [Link] Showalter, DistinguishingSciencefrom Pseudo-Science in Psychiatry:
Expert Testimony in the Post-DaubertEra,2 VA. J. SOC. POL'Y & L. 211, 224-25 (1995).
19981 CRIMINAL PSYCHOLOGICAL PROFILES

IV. THE ADMISSIBILITY OF CRIMINAL PSYCHOLOGICAL PROFILES

A. CharacterEvidence

Most courts that have excluded criminal psychological profiles

have done so on the grounds that they constitute impermissible
character evidence. 152 Although there is no express definition 154 of
character evidence, 153
courts have attempted to define the term.
One court has stated that character evidence refers to "the disposition
or propensity of a defendant to commit certain crimes, wrongs or
acts."' ' 5 Other courts have focused on the perpetrator's behavior as
opposed to the specific crime involved. For example, an Oregon court
defined character evidence as a person's disposition or propensity
toward certain behavioral traits such as honesty, truthfulness,
temperance, carefulness, or peacefulness. 156 The court also stated that
character evidence refers to a person's tendency to act in a certain
way in various situations of life.157 Both interpretations, however,
include one common theme: character evidence refers to a person's
propensity or disposition to act in a certain way. 158 As a result, the
key inquiry to identify character evidence hinges upon whether the
evidence tends to show a person's propensity to do something.
In contrast, a criminal psychological profile does not refer to a

152. See Penson v. State, 474 S.E.2d 104 (Ga. Ct. App. 1996); State v. Haynes, No. 4310,
1988 WL 99189 (Ohio Ct App. 1998).
153. See CHARLES ALAN WRIGHT AND KENNETH W. GRAHAM, JR., 22 FEDERAL PRACTICE
AND PROCEDURE § 5233, at 349-50 (1978).
154. Seeid. at350.
155. Getz v. State, 538 A.2d 726,730 (Del. 1988).
156. See State v. Marshall, 823 P.2d 961, 963 (Or. 1991). After his conviction for robbery
and burglary, the defendant appealed, claiming that the trial court improperly refused to hear
testimony from the defendant's witness regarding the crime victim's propensity to give people
property as collateral for her debts and then claim that the same property had been stolen. See
id. at 961-62. The Oregon Supreme Court affirmed the conviction by stating that the trial court
had properly excluded the testimony. See id. at 964-65. While the defendant's witness was
permitted to give her opinion regarding the victim's reputation for truthfulness, further
questioning regarding the nature of the lies told by the victim "was the functional equivalent of
asking the witness to relate specific instances of conduct as proof of the character trait of the
victim for untruthfulness." Id. at 964.
157. See id. at 963-64.
158. Most treatises on evidence draw this same parallel. See, e.g., RICHARD D. FRIEDMAN,
THE ELEMENTS OF EVIDENCE 231-32 (1991); JOHN HENRY WIGMORE, WIGMORE ON EVIDENCE
§ 52, at 446 (3d ed. 1940).
260 JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 54:239

person's propensity to act in a certain way, nor does it relate to

general character traits. 159 The case of State v. Pennell illustrates this
point.1 60 Without any known suspects, the police conducted an
investigation based on a profile containing information such as the
offender's age, residence, profession, type of vehicle, marital status,
and image. 61 Most of the profile consisted of a demographic
description of the offender, which is similar to information police
would use in searching for a suspect based on eye-witness
information. The prohibition on character evidence did not bar the
admission of a description in eye-witness cases, and, therefore, it
should not be barred in profile cases.
Moreover, the "macho image" and domination of women
illustrations in the Pennell profile might be considered character traits
similar to honesty or carefulness. 12 However, the fact that it is
character evidence is not enough to bar its admission. 63 The evidence
must also be offered to show that164the person acted in conformity with
the trait on a particular occasion.
Thus, admission of a profile would require that the profile is to be
used for a purpose other than to show action in conformity with a
defendant's character. 65 Such other purposes include motive, intent,

159. There is some case law to support this point. In Nolte v. State, 854 S.W.2d 304 (Tex.
Ct. App. 1993), the Court of Appeals of Texas found that expert testimony that dealt with
profiles of those who typically sexually abuse children was not character evidence. See id. at
309. The court defined character evidence as a "generalized description of a person's
disposition, or of the disposition in respect to a general trait, such as honesty, temperance, or
peacefulness." Id. In addition, the court stated that the expert's testimony only compared the
profile of a typical sex abuser to the defendant. See id. Like a sex abuser profile, a criminal
psychological profile provides information about an offender that does not involve the
offender's generalized disposition or the offender's disposition toward a general trait. This
follows from the fact that a criminal psychological offender's profile is derived from a specific
crime scene and defines a particular person.
160. See State v. Pennell, 1989 WL 112555 (Del. Super. Ct. 1989).
161. See DOUGLAS & OLSHAKER, supra note 1, at 252.
162. See id.
163. See FED. L EViD. 404(a). Federal Rule of Evidence 404(a) specifies that "[e]vidence
of a person's character or a trait of character is not admissible for the purpose of proving action
in conformity therewith on a particular occasion .... FED. R. EVID. 404(a).
164. See id.
165. The Federal Rules of Evidence permit the use of character evidence for purposes other
than showing action in conformity with character on a particular occasion:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of
a person in order to show action in conformity therewith. It may, however, be
1998] CRIMINAL PSYCHOLOGICAL PROFILES

a common scheme or plan, signature, preparation, or identity. 66 For

example, in the Pennell case, the purpose of introducing the profile
might have been to show the defendant's motive in that the defendant
enjoyed dominating women. 167 In addition, the macho image
portrayed by the defendant provided insight into his identity168as
opposed to showing an action in conformity with a character trait.
The contents of a profile can also establish a perpetrator's
common plan, which constitutes an admissible purpose under the
Federal Rules of Evidence Rule 404(b). 169 Many offenders who
commit acts similar to those in Pennell claim insanity.1 70 The
contents of a profile can rebut such a claim by illustrating a common
plan through the signature analysis of several killings. 17 1 The profile
can also provide evidence of motive and preparation by
demonstrating that the offender not only appreciated the criminality
of his or her actions, but planned them and had a reason for
committing the crimes. 172 In summary, the aforementioned purposes
for admitting profiles do not attempt to show action in conformity
with character, and, as a result, the contents of a profile and the
profile itself should not be excluded from evidence on the grounds
that it is an impermissible use of character evidence.

admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.
FED. R. EvID 404(b).
166. See id.
167. See DOUGLAS & OLSHAKER, supranote 1, at 252. As is often the case, people attempt
to understand why a person has committed these shocking acts. See id. at 30. A profile that
includes a trait such as the enjoyment of dominating women provides substantial evidence of
motive.
168. See id. at 252-53. In the Pennell case, the New Castle police searched for a person
matching that description. See id. at 252. This information provided a clue to the offender's
identity, and the in-court use of the information supported the court's conclusion that the
defendant committed the act. See id at 252-53.
169. See FED. R. EVID. 404(b).
170. See DOUGLAS AND OLSHAKER, supra note 1, at 239-51.
171. Seei.
172. The Model Penal Code provision regarding the insanity defense states: "A person is
not responsible for criminal conduct if at the time of such conduct as a result of mental disease
or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law." MODEL PENAL CODE § 4.01.
262 JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 54:239

B. Scientific Evidence

In addition to excluding criminal psychological profiles on the

grounds that they constitute improper character evidence, courts have
also refused to hear such evidence because it is not a proper subject
for expert testimony. 173 While this reason for refusing admission is
based partly on uncertainty about the proper standard for admission,
courts have often refused to admit the evidence due to improper use
of such evidence by its proponent or a misunderstanding on the part
of ajudge. 174
Federal Rule of Evidence 702 permits expert opinion testimony
when it relates to "scientific, technical and other specialized
knowledge."' 75 This presents a problem for criminal psychological
profiling because it remains unclear into which category such
evidence should fall. As illustrated in Part III of this Note, certain
types of psychological evidence fall under the umbrella of scientific
evidence.176 However, limiting criminal psychological profiling to
only psychological evidence diminishes the significance of other
elements of profiling such as its criminological and sociological
aspects. While criminology falls under the scientific evidence
category, sociology has been the subject of much debate. 177 Some
argue that criminal psychological profiles are not scientific evidence
because they employ social science theories. 78 Furthermore, these
arguments view syndromes such as "battered wife" syndrome and
"rape victim" syndrome as types of psychological evidence that do
not fall under the traditional uses for scientific psychological
testimony.179 Placing social science evidence in that context raises a
question about the proper standard for admission of non-scientific
evidence because courts have not established relevant criteria for
admission.1 80 As a result, to properly admit such evidence, the

173. See State v. Roquemore, 620 N.E.2d 110 (Ohio CL App. 1993); State v. Haynes, No.
4310, 1988 WL 99189 (Ohio CL App. 1988).
174. See Penson v. State, 474 S.E.2d 104, 106-07 (Ga. CL App. 1996).
175. FED. R. EVID. 702.
176. Cf McCord, supra note 143, at 23-34.
177. See Lindman, supranote 146, at 755.
178. See Imwinkelried, supranote 149, at 2273.
179. See id.
180. See Agrimonti, supra note 137, at 152-55.
19981 CRIMINAL PSYCHOLOGICAL PROFILES

proponent must argue that profiles are scientific evidence or that the
scientific standard in Daubert also applies to technical or other
specialized knowledge.
A proponent of criminal psychological profiles has a stronger
argument for admission under the Daubert principle. 181 Under
Daubert, admissible expert testimony must be based on valid
scientific principles and relevant to some issue in the case. 182 While
the Court in Daubert specifically limited its holding to scientific
evidence, 183 lower courts have extended it to non-scientific and quasi-
scientific evidence.' 8 4 Criminal psychological profiles can be deemed
quasi-scientific because they are created through a scientific
process. 85 Therefore, by labeling criminal psychological profiling as
quasi-scientific evidence, the Daubert principle can be used to
determine the admissibility of criminal psychological profiles. In
addition, such profiles may be highly relevant to some issue in the
case in that they may support theories of a perpetrator's motive,
identity, common scheme, or preparation in committing the offense.
For example, a profiler can look at a crime scene and understand why
a person committed certain acts and can determine what type of
person committed the acts.186 As a result, when testifying regarding
criminal psychological profiles, a profiler would provide information
regarding motive and identity that would strengthen the prosecution's
case against the defendant.
Criminal psychological profiles must also be reliable in order to
assist the trier of fact.' 8 7 The Daubert Court established four factors
to determine the reliability of admissible expert testimony with no
one factor receiving greater weight than another and none held as

181. Profiling employs a method similar to a scientific method in that a profiler observes
the evidence, creates a hypothetical person, and tests the results to eliminate inconsistencies.
See Douglas et al., supra note 24, at 405. Where profiles differ from typical scientific evidence
is in the basis for profiles' conclusions: A profile rests on psychological and sociological
principles. See HOLMES & HOLMES, supra note 23, at 3. In contrast, most scientific evidence
rests on the more solid foundation of "hard science." See McCord, supra note 143, at 21-22 n.2.
182. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579,589-92 (1993).
183. [Link] 590 n.8.
184. See Agrimonti, supra note 137, at 149-52.
185. See Douglas et al., supra note 24, at 405.
186. See DOUGLAS & OLSHAKER, supra note 32, at 43.
187. See Daubert,509 U.S. at 589.
264 JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 54:239

dispositive. 188 These include: (1) whether the conclusion can be

tested, (2) whether the procedure and basis of conclusion has been
subjected to peer review and publication, (3) the test's potential rate
of error and,
189
and (4) standards of control for the technique's
operation.
A profiler's determination, by nature, can be tested and proven
accurate only if a person is caught and later confesses. Nonetheless,
one study attempting to test the validity of profiles found that trained
profilers were usually accurate in predicting the type of person who
committed an offense. 190 In addition to the accuracy study, several
other scholars, investigators, and psychologists have recognized
criminal profiling as a legitimate method of understanding criminal
behavior.' 91 As previously mentioned, the procedures involved in the
construction of a criminal psychological profile are extensive. Such
processes, as well as the profile itself, are subject to constant review
to determine whether they are accurate and fully reflect all of the
evidence gathered in a case. 92 If inconsistencies are found between
evidence and a profile, the93profiler will adapt the description to fit the
evidence from the crime.1
The only factor not applicable to the profiling process is the

188. Seeid. at593-95.

189. See id.
190. See Anthony J. Pinizzotto & Norman J. Finkel, Criminal Personality Profiling: An
Outcome andProcess Study, 14 LAW & HUM. BEHAV. 215 (1990). The study gathered twenty-
eight subjects from five different backgrounds. See id. at 218-29. Four of the subjects were
profiling experts who trained police at the FBI Academy, six were police detectives who had
received profiling training, six were detectives who had no profiling training, six were clinical
psychologists who were unfamiliar with criminal profiling, and six were undergraduate students
with no exposure to personality profiling or criminal investigations. See id. Each subject
received information about either a sex offense or a homicide, both of which were actual crimes
that had been solved. See id. They were then asked to recall the information and write as many
facts about their case as they could remember. See id. at 220. Subsequently, the subjects were
asked to write the details that they felt were most important in creating a profile regarding
characteristics of the offender and the reasons why these details were important. See id. The
subjects then received the crime scene information again and were asked to create a profile of
the offender using as much detail as possible. See id. After creating the profile, the subjects
were asked to answer multiple-choice questions about the offender. See id. at 220-21. Finally,
each subject was given a written description of five different people and asked which person
was most likely to have committed the offense. See id. at 221.
191. See HOLMES & HOLMES, supra note 23, at 2.
192. See supraPart II.A.
193. See Douglas et al., supra note 24, at 57.
1998] CRIMINAL PSYCHOLOGICAL PROFILES

potential rate for error because it is impossible to determine whether

a profile is wrong in that the absence of a confession does not
necessarily indicate a defendant's innocence. 194 Similarly, an
acquittal in a case where a profile is used does not equate to an
inaccuracy in the profile. As a result, it is not possible to determine
an error-rate for profiles. 195 Still, criminal psychological profiling
meets three of the four factors enumerated in Daubert. Therefore,
courts should view the evidence generated in a profile as sufficiently
reliable because the underlying principles can be tested, the
procedure and basis for a profile's conclusion is subject to peer
review, and standards for control of the profiling technique's
operation exist.

V. CONCLUSION

Since the 1970s, the FBI has employed criminal psychological

profiling to apprehend serial and sexual offenders. By examining a
crime scene and a victim, and using their knowledge of psychology
and sociology, profilers can create a description of an offender that
includes the person's age, occupation, personal history, and
appearance. A profile also provides information such as the
offender's level of education and important personality traits.
Despite the importance of profiles in investigating serial and
sexual crimes, courts generally have not permitted their use in the
prosecution and defense of criminal defendants. They have concluded
that profiles are an impermissible use of character evidence or
inappropriate subjects for expert testimony. As a result, trial courts
that have admitted profiles as evidence have done so at the cost of

194. Profiles are not always accurate. See, e.g., State v. Fain, 774 P.2d 252, 257 (Idaho
1989). In addition, there may be procedural errors and bias involved in the profiling process. Cf.
Chuck Green, Profiler Slipped Up (visited Jan. 20, 1998) <[Link]
news/[Link]>. The JonBenet Ramsey murder investigation serves as an example of this
point. See id. In that case, two former FBI criminal profilers formed different opinions
regarding the culpability of JonBenet Ramsey's parents. See id. John Douglas performed an
interview with both parents and ruled them out as the offenders. See id. However, Gregg
McCrary found flaws in Douglas's procedure, citing the fact that Douglas interviewed the
parents together rather than separately. See id.
195. It should be noted that the Pinizzotto and Finkel study found that the profilers were
not 100% accurate in their predictions about the person who committed the offense. See
Pinizzotto & Finkel, supra note 190, at 222-25.
266 JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 54:239

reversal.
Nonetheless criminal psychological profiles should be admitted as
evidence in criminal trials. Courts already permit some aspects of
profiles into evidence as a means to connect multiple crimes to a
single offender. Admission of full profiles would accomplish the
same goal through additional methods. As a result, their use at trial
would not be an impermissible use of character evidence. In addition,
criminal psychological profiles are both relevant and reliable in that
they have a basis in established psychological and sociological
principles, and the procedures involved in constructing such profiles
are subject to peer review and contain control mechanisms. As a
result, courts should welcome the benefits of criminal psychological
profiles in criminal trials.
Scott Ingram

* J.D. 1998, Washington University.