The Psychology and Sociology of Wrongful Convictions: Forensic Science Reform

By C. Michael Bowers

Wrongful convictions are the result of faulty or false scientific evidence in 50% of the cases. Defense counsel is often at a great disadvantage in defending against evidence based on science. Illusory Evidence: The Psychology and Sociology of Wrongful Convictions is written for the non-scientist, to make complicated scientific information clear and concise enough for attorneys and judges to master. This is obtained by providing case studies to simplify issues in forensic psychology for the legal professional.

• Increases the courts’ knowledge about areas of psychology that have been debunked, have advanced, or have been refined by the scientific community
• Covers issues in psychological forensics, namely: Profiling, Psychological Defenses, Mitigation, Eyewitness Testimony/Identification, Child Testimony, Repressed Memories, False Confessions and Moral Panic
• Trains prosecuting attorneys about the present state of the forensic psychology, to avoid relying only on legal precedent and will not present flawed science to the court
• Provides defense attorneys the knowledge necessary to competently defend where forensic psychology plays a part in a prosecution
• Arms innocence projects and appellate attorneys with the latest information to challenge convictions
• Uses case studies to simplify issues in forensic psychology for the legal professional

• Language: English
• Publisher: Academic Press
• Release date: Jun 26, 2018
• ISBN: 9780128027028

Book preview

The Psychology and Sociology of Wrongful Convictions

Forensic Science Reform

Edited by

Wendy J. Koen

Child Refuge, Inc., Menifee, CA, United States

C. Michael Bowers

Ostrow School of Dentistry, University of Southern California, Los Angeles, CA, United States

Table of Contents

Cover

Title page

Copyright

Dedication

Contributors

Preface

Acknowledgments

Section I

Chapter 1: Criminal Profiling: Evidence, Experts, and Miscarriages of Justice

Case Study: John Allen Muhammad and Lee Boyd Malvo

Criminal Profiling: Evidence, Experts, and Miscarriages of Justice

Chapter 2: The Psychology of Eyewitness Identification

Case Study: Timothy Atkins

The Psychology of Eyewitness Identification

Chapter 3: Child Interrogations and Testimony

Case Study: John Stoll

Child Interrogations and Testimony

Chapter 4: Repressed Memories

Case Study: George Franklin

Multi-Disciplinary, Science Intensive Litigation Reforms Protect the Integrity of the Legal System

Chapter 5: The Psychology of False Confessions: The Psychological Impact of Interrogation Tactics on Innocent Suspects and the Decision to Confess

Case Study: The Central Park Five

The Psychology of False Confessions: The Psychological Impact of Interrogation Tactics on Innocent Suspects and the Decision to Confess

Chapter 6: Analyzing the Influence of Moral Panics on Miscarriages of Justice: A Conceptual Toolkit

Case Study: Daniel and Frances Keller

Analyzing the Influence of Moral Panics on Miscarriages of Justice: A Conceptual Toolkit

Chapter 7: Confirmation Bias in Forensic Science

Case Study: William Richards

Confirmation Bias in the Forensic Sciences: Causes, Consequences, and Countermeasures

Chapter 8: Psychological Defenses and Mitigation of Punishment

Case Study: Edward Lee Elmore

Psychological Defenses and Mitigation of Punishment

Chapter 9: Racial Profiling and Miscarriages of Justice

Case Study: Thomas McGowan

Racial Profiling and Miscarriages of Justice

Chapter 10: The Role of Police Investigative Processes in Causing Miscarriages of Justice

Case Study: Rampart

The Role of Police Investigative Processes in Causing Miscarriages of Justice

Section II: Understanding and Evaluating Social Science (and Other) Research

Introduction

Abstract

Relevancy

Relevancy: Samples and Participants in Social Science Research

Falsifiability

Error Rates

The Process of Peer Review

General Acceptance

Helping Jurors Understand Research Results

Conclusion

Index

Copyright

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Notices

Knowledge and best practice in this field are constantly changing. As new research and experience broaden our understanding, changes in research methods, professional practices, or medical treatment may become necessary.

Practitioners and researchers must always rely on their own experience and knowledge in evaluating and using any information, methods, compounds, or experiments described herein. In using such information or methods they should be mindful of their own safety and the safety of others, including parties for whom they have a professional responsibility.

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Dedication

To Mark Koen, who always supports, encourages, and does the thankless work that just has to be done. You are forever my best friend and my best ally.

– Wendy J. Koen

To Cynthia, who continues to support me through the challenges of life with smiles and encouragement.

– C. Michael Bowers

Contributors

R. Christopher Barden,     R.C. Barden & Associates in Law and Psychology, Plymouth, MN, United States

C. Michael Bowers,     Clinical Associate Professor, Ostrow School of Dentistry, University of Southern California, Los Angeles, CA, United States

Stephen J. Ceci,     Cornell University, Ithaca, NY, United States

Mary de Young,     Grand Valley State University, Allendale, MI, United States

Jennifer E. Dysart,     John Jay College of Criminal Justice, CUNY, New York, NY, United States

Rebecca K. Helm,     University of Exeter Law School, Exeter, United Kingdom

Wendy J. Koen,     Child Refuge, Inc., Menifee, CA, United States

Jeff Kukucka,     Towson University, Towson, MD, United States

Aurelio Coronado Mares,     The Forensic Criminology Institute, Aguascalientes, Mexico

Rebecca Milne,     University of Portsmouth, Portsmouth, United Kingdom

Katherine M. Nicolai,     Rockhurst University, Kansas City, MO, United States

Sean D. O’Brien,     Professor, University of Missouri–Kansas City School of Law, Kansas City, MO, United States

Sam Poyser,     York St John University, York, United Kingdom

Caisa Elizabeth Royer,     Cornell University, Ithaca, NY, United States

Marla Sandys,     Indiana University Bloomington, Bloomington, IN, United States

Brent E. Turvey,     The Forensic Criminology Institute, Sitka, AK, United States

Elizabeth S. Vartkessian,     University at Albany, SUNY Advancing Real Change, Inc. Baltimore, MD, United States

J. Guillermo Villalobos,     Interdisciplinary Social Psychology Doctoral Program, University of Nevada, Reno, NV, United States

Michael W. Wiederman,     University of South Carolina School of Medicine Greenville, Greenville, SC, United States

Preface

The Psychology and Sociology of Wrongful Convictions: Forensic Science Reform is the second volume in the series which began with Forensic Science Reform: Protecting the Innocent. This new volume brings into focus the influence of sociology and psychology on judiciary proceedings. The goal of this collection with its panel of notable contributors is to provide easily understood cutting edge insight about psychological and sociological issues present in wrongful convictions. We hope this book will act as a resource that will educate both society and the legal community, and will aid in the prevention of wrongful convictions.

Forensic psychology traditionally has studied the thoughts, intentions, and behaviors of the ‘criminal mind,’ along with the effectiveness of punishment and rehabilitation. Criminal sociology, also known as criminology, is a social science which applies research methods to the dynamics of criminal justice systems. Both are admissible in courtrooms as they provide data and interpretations of social and behavioral issues frequently found in courtroom settings. Both can explain the failures we often face in the criminal justice system.

Within the last three decades, these disciplines have contributed to the study and analysis of wrongful convictions. The 50 plus Innocence Network projects, along with allied criminal justice investigators, contribute significantly to these subjects and are responsible for the 2000 exonerations recorded to date in the United States.¹ This exoneration data has expanded research efforts in both psychology and criminology.² This book provides a much-needed look into specific factors which lead to those wrongful convictions.

One major factor contributing to wrongful convictions is false witness identification. The psychology of eyewitness identification can explain how a victim of rape can become absolutely convinced that her attacker was one man, while all other evidence, including DNA evidence, proves her attacker was another. Sociology explains how a community of rational and upstanding citizens can come to believe the most unlikely of too many monsters stories, and how neighbor can be turned against neighbor. It also clarifies how, in the quest to rid our society of danger and protect our children from the unthinkable, the accusers often become the ones who cause harm.

This book enables readers to comprehend how innumerable wrongful convictions have occurred. But even more importantly, it arms judges and legal counsel with increased awareness and solutions for issues in forensic psychology and sociology. All of this creates a credible science-based reference meant to stop innocent defendants from erroneous convictions.³

Wendy J. Koen

C. Michael Bowers

---

¹ It is paramount that judges and counsel look to these studies and their explanations. Improving criminal justice advocates state: We study the injustices of history for the same reason that we study genocide, and for the same reason that psychologists study the minds of murderers and rapists... to understand how those evil things came about. We need to study the failures of the criminal justice system; only then can we begin to prevent further injustice.

² Committee on Identifying the Needs of the Forensic Sciences Community, National Research Council, (2009) Strengthening forensic science in the United States: A path forward, p. 43, 108 available at: http://www.nap.edu/catalog/12589.html; The Innocence Project. Fact Sheet: Facts on Post-conviction DNA Exonerations, available at www.innocenceproject.org/Content/351.php. See also Garrett, B.L. (2008); CBC News Canada (2009). Canada’s wrongful convictions: Cases where the courts got it wrong, available at: http://www.cbc.ca/news/canada/canada-s-wrongful-convictions-1.783998; The Guardian, (2004) The Scales of Injustice, available at: http://www.theguardian.com/uk/2002/jul/28/ukcrime.prisonsandprobation; Huff, C.R. & Killias, M. (Eds.), (2008). Wrongful conviction: International perspectives on miscarriages of justice. Philadelphia: Temple University Press, p. 312. ISBN: 9781592136452.

³ Diamond, J. (1997). Why did human history unfold differently on different continents for the last 13,000 years? In, Edge, available at: http://www.edge.org/conversation/why-did-human-history-unfold-differently-on-different-continents-for-the-last-13000-years.

Acknowledgments

This volume would not exist without the constant input and support of C. Michael Bowers. Not only has he worked tirelessly to ensure this volume is of the greatest quality and import, Dr. Bowers has dedicated his career to ensuring no innocent man or woman, sent to prison by sloppy forensic odontology, remains incarcerated. Dr. Bowers worked innumerable pro bono hours over a three-decade period, along-side the California Innocence Project, to secure the freedom of William Richards (see Chapter 7 of this volume). Named the Dental Detective, Bowers toils tirelessly with little thanks.¹ He has fought to ensure that forensic odontology not be relied upon in cases where its prejudicial impact outweighs its ability to inform, and that practitioners raise their standards and refuse settle for inferior work likely to lead to wrongful convictions. For his efforts, he was maligned and ostracized by old-school forensic odontologists who refused to progress along with their science. For this, the criminal justice system is forever in his debt.

This volume would not exist without the contributions by the chapter authors. Each expert, in the midst of their significant work-loads, chose to take the time to write a chapter that would educate lawyers, judges, and students of law about the interface of psychology and sociology and the law. Their willingness to contribute and to help reduce the numbers of wrongful convictions is indicative of their dedication to their individual field of practice and to the cause of justice.

This volume would not exist without the foundational work done by innocence projects around the globe. The innocence projects have blazed a trail, proving that wrongful convictions are rampant in even the most advanced criminal justice systems. It is on the shoulders of these heroes that we stand and it is their cause for which we fight.

Many thanks for help and support from:

Alissa Bjerkhoel, California Innocence Project

Heidi Cruise,

William Richards, Hero Exoneree

Paula Hunka, Frasier Health

---

¹ Hobbs, J. (2014). The Dental Detective. Available from http://dentistry.usc.edu/2015/07/09/the-dental-detective/

Section I

Chapter 1: Criminal Profiling: Evidence, Experts, and Miscarriages of Justice

Chapter 2: The Psychology of Eyewitness Identification

Chapter 3: Child Interrogations and Testimony

Chapter 4: Repressed Memories

Chapter 5: The Psychology of False Confessions: The Psychological Impact of Interrogation Tactics on Innocent Suspects and the Decision to Confess

Chapter 6: Analyzing the Influence of Moral Panics on Miscarriages of Justice: A Conceptual Toolkit

Chapter 7: Confirmation Bias in Forensic Science

Chapter 8: Psychological Defenses and Mitigation of Punishment

Chapter 9: Racial Profiling and Miscarriages of Justice

Chapter 10: The Role of Police Investigative Processes in Causing Miscarriages of Justice

Chapter 1

Criminal Profiling: Evidence, Experts, and Miscarriages of Justice

Abstract

The purpose of this chapter is to sift fact from fiction with respect to criminal profiling: to help criminal justice professionals distinguish scientific practice and ethical practitioners from the cons and con men that abound. After an overview of the profiling failure in the DC sniper case, the chapter will start with an introduction to criminal profiling, defining what it is and is not. This will lead to an exploration of criminal profiling opinions that become expert evidence and testimony. Then, there will be a discussion regarding professionalization, with respect to practice standards, ethics, and certification. The chapter will close with recent and relevant case studies in which criminal profiler reports and expert testimony have led to miscarriages of justice

Keywords

criminal profiling

inferential

ideographic

DC Sniper

geographic profiling

nomothetic

modus operandi

wrongful conviction

forensic fraud

Professional certification

tunnel vision

Chapter Outline

Case Study: John Allen Muhammad and Lee Boyd Malvo By Wendy J. Koen

The Dc Sniper

The Crime Spree

The Profile

The Snipers

Tunnel Vision

References

Criminal Profiling: Evidence, Experts, and Miscarriages of Justice By Brent E. Turvey

Criminal Profiling: A Primer

Profiling as Nomothetic Prediction

Profiling as Ideographic Analysis

Professional Standards and Certification

Professional Certification

The Criminal Profiler Professional Certification Act of 2013

The Criminal Profiler: Basic Qualifications

Profiling as Expert Evidence

The Role of Criminal Profiling

A Brief History of Criminal Profiling in Court

Colorado v. Masters (2001)

Profilers as Forensic Experts

Case Studies in False Testimony and Forensic Fraud

Conclusion

References

Case Study: John Allen Muhammad and Lee Boyd Malvo

Wendy J. Koen

Behavioral profiling has never led to the direct apprehension of a serial killer, a murderer, or a spree killer, so it seems to have no real-world value.

Craig Jackson

Criminal profiling is one of the more widely accepted and applied specialties in forensic criminology (Petherick & Ferguson, 2010). The public seems particularly enamored with profilers. In fact, a review of the Criminal Profiling Archives (located at http://www.corpus-delicti.com/prof_archives_media.html) shows that rarely has a sensational crime occurred in the past 5 years where a criminal profiler has not been solicited for public comment (Petherick & Ferguson, 2010, p. 235).

At the heart of profiling lies the belief that by combining psychological principles with crime scene analysis, it is possible to identify the likely characteristics of a perpetrator (Gregory, 2005). Thus, a profile constitutes an offender’s pattern of behaviors and personal characteristics, which are presumed from clues left before, during, or after a crime is committed.

But profilers have failed on a grand scale. In fact, some critics say that psychological profiling of criminals is worse than useless (Sample, 2010), and some of the basic premises on which profilers operate might be flawed (Doan & Snook, 2008; Sorochinski & Gabrielle, 2017). We are left asking how much we should be relying on the science and, even more importantly, whether profiling is a true science or better characterized as an art (Daniszewska, 2017; Gregory, 2005).

Profiling Failure -- Colin Stagg

Rachel Nickell was a model from south-west London. In 1992, she was stabbed 49 times in broad daylight. After she was viciously attacked, Alex, her two-year-old son, begged his mother to wake up; he was clinging to her body and covered in her blood.

Colin Stagg was 29-years-old and an ordinary single man living an ordinary life in London. (Laville, 2008). His nightmare began when his neighbor told investigators that Stagg was unnaturally enthusiastic when speaking about the murder of Rachel Nickell.

Stagg fit the profile of the killer profiler Paul Britton had presented to the investigators. Other witnesses identified Stagg, or a man who appeared to look like Stagg, as a person they had seen near the crime scene at the time of the murder. When officers went to Stagg’s flat to interview him, they found a notice on his door which stated, Christians keep away - a pagan dwells here. (Laville, 2008). This sealed Stagg’s fate as the investigators immediately identified Stagg as a loner who was interested in paganism who fit the psychological profile outlined by Britton. At this point, the investigators believed Stagg was their man and they began to build a case against him.

Although the profile and Stagg’s general appearance was the only evidence against Stagg, and another murder, committed nearby and under similar circumstances by another suspect should have sent investigators in another direction, Stagg was charged and spent thirteen months in jail awaiting trial. (Laville, 2008). When Stagg’s case finally came to trial, the judge threw it out based on an obvious lack of evidence. Stagg was released and waited sixteen years to hear the Metropolitan police apologize for their mistake. The letter of apology said, I must offer you an unreserved apology for the proceedings instigated against you in 1994. (Laville, 2008). The letter was long overdue and could never make up for the thirteen months Stagg spent vilified as a heartless murderer.

The consequences of fixating on Stagg because of Britton’s profile were brutal. Not only did Stagg suffer, the actual perpetrator, Robert Napper, was free to commit a double murder while Stagg sat in jail. (BBC, 2007). While Stagg was wrongfully incarcerated, in 1993, Napper stabbed and killed Samantha Bisset and her four-year-old daughter Jazmine. (BBC, 2007). Obviously these heart wrenching murders would never have happened had investigators not started with tunnel vision caused by a faulty profile.

The DC Sniper

In the DC sniper case, the world watched as American profilers floundered and failed miserably. In October of 2002 there was a string of similar sniper attacks on the east coast of the United States (Petherick & Ferguson, 2010). As law enforcement scrambled to protect the populace, the media reveled in the dramatic events and for four weeks, minute by minute coverage of the investigation gave the public real-time insight into criminal profiling (Petherick & Ferguson, 2010). Profilers opined that the sniper was a lone, unstable, white male. (Petherick & Ferguson, 2010, p. 251). Sources close to the investigation revealed that this opinion was formed based on the FBI’s stock profile developed from the Timothy McVeigh and Ted Kaczynski cases (Petherick & Ferguson, 2010). Virtually everyone in law enforcement began working under the assumption that the sniper was a singular, angry white male, twenty to thirty years old, who was a pathetic loner (Petherick & Ferguson, 2010).

Profiling Failure--Albert DeSalvo

In the 1960s unmarried women in the state of Massachusetts were being raped and slaughtered by a serial killer. The suspect, dubbed the Boston Strangler, killed 11 women. Investigators and the district attorney’s office frantically worked the case with little success. (McPhee, 2013). The police sought insight from a group of psychiatrists and psychologists, hoping that the group could create a profile and narrow the pool of suspects. (Baker, 1985). The experts determined that the Boston Strangler was actually two men. They postulated that both men lived alone, were probably schoolteachers, and one of the men was a homosexual.

Although no one was ever tried and convicted of the brutal murders, Albert DeSalvo confessed to the crimes and, in 2013, DNA from one of the victim’s confirmed that DeSalvo was likely the killer. DeSalvo did not fit the profile created by the group of profilers. He was married and had children, he lived with his family, he was a construction worker, and was decidedly heterosexual. (Baker, 1985). The profilers were wrong on every characteristic. It will forever remain a mystery whether the incorrect profile caused the abject failure of the Boston Strangler task force, but we can be sure that the incorrect profile did nothing to further the investigation and likely delayed any hope for justice.

The profilers were all wrong, and their mistakes had real consequences. The DC snipers (plural), John Allen Muhammad and Lee Boyd Malvo, had been spotted by authorities near the crime scenes no fewer than ten times during the investigation. However, they were repeatedly ignored because they did not fit the profile, neither was a loner, or a white male (Petherick & Ferguson, 2010).

Petherick and Ferguson (2010) explain how the media frenzy surrounding the DC Sniper investigation was a watershed event in the history of criminal profiling:

First, the public was exposed to more criminal profilers and their divergent methods and opinions, on the same case, at the same time, than ever before. This media saturation by profilers was made all the more unusual by the fact that it was available around the clock through almost every major news outlet around the globe.

Second, criminal profilers (and the authorities) were commenting and opining about criminal behavior in real time, as events unfolded, and the offenders were responding.

Finally, the global public was exposed to the very real fallibility of criminal profilers and their opinions.

Although television viewing audiences have grown accustomed to fictional depictions of criminal profiling, because of the DC Sniper case, much of the world was given an introduction to real life profiling and profiling specialists at their worst.

The Crime Spree

For three weeks in October of 2002, thirteen randomly chosen innocent people were shot in Maryland; ten of them died from their wounds (White, 2012). In a sixteen hour period, five shootings took place within two miles of Montgomery County, Maryland (Petherick & Ferguson, 2010). The region was gripped in terror. Simple tasks like filling the car with gas became terrifying events as people were targeted at gas stations, craft and hardware stores, and other places of business (White, 2012). No one in the area felt safe, and their instincts were correct. The following timeline illustrates the quickness and brutality of the shooting spree.

Timeline - D.C. Area Shooting Spree:

D.C. Area Sniper Fast Facts, CNN available as of 12/12/16 at: http://www.cnn.com/2013/11/04/us/dc-area-sniper-fast-facts/.

The Profile

Most of the experts crafted virtually identical profiles; the shooter was an angry white male in his twenties or early thirties who lived alone in Maryland (Bothe, 2002). Profilers believed the shooter was driving a white van or box truck and would not surrender peaceably (Bothe, 2002). Using words that appeared to be intended to bait the shooter, pundits and profilers characterized him as a powerless loser, whose actions were those of an attention-seeking coward. They further suggested that he was likely getting a kind of emotional high from playing God. (Petherick et al., 2010, p. 237).

Some experts warned that publicly spewing this type of rhetoric might inspire more shootings. Brent Turvey warned that taunting would only hinder the investigation and could spur the killer to kill again (Petherick et al., 2010). Turvey cautioned, the profilers are making very emotional political statements that are not related to the criminal investigation at all. He said, I think it’s completely irresponsible to provoke an offender to act. (Petherick et. al., 2010, p. 238).

Turvey was right. One child, Iran Brown, was shot outside a middle school. This shooting appeared to be in response to the officials’ assurances that children were safe and, based on their profile of the shooter, children would not be targeted by the perpetrator. Their words came back to haunt them when the thirteen-year-old student was shot in the abdomen after being dropped off at school. Although, fortunately, Brown survived, his shooting clarified the shooters’ position that no one was safe and made it clear they were listening and reacting when authorities published their thoughts and opinions.

Geographic Profiling: During the shooting spree, law enforcement held press conferences and announced that a geographic profiler had been brought in to examine the shootings and help determine where the perpetrators might live or work (Petherick et al., 2010). Geo-profiling uses algorithms which designate probabilistic locations where a criminal might live or work based on the locations of the crime scenes (Renner et al., 2009). The Geoprofiler relied upon in this case, Dr. Kim Rossmo, told the television audience that geographic profiling was an optimal search strategy (Legon, 2002) and that he relies on the least-effort theory. This theory posits that crimes typically happen fairly close to an offender’s home but not too close. (Legon, 2002). Based on geographic profiling, Rossmo determined the sniper lived in Montgomery County, Maryland, close to most of the crime scenes (Petherick et al., 2010). Rossmo was dead wrong: Mohammed and Malvo were from Washington state. Because of the general profile and the geographic profile, they were ignored when stopped at a check point because Mohammed had an authentic Washington state driver’s license, and the old Chevy he was driving had New Jersey plates (Bothe, 2002). Because the two men did not fit the geographic profile, they were sent on their way and were free to continue their shooting spree in Virginia (Bothe, 2002).

The Snipers

John Allen Muhammad and Lee Boyd Malvo matched the profile in only one area—they were both male. As illustrated below, in every other factor, Muhammad and Malvo were not the subject the authorities were looking for (see Scott-Snyder, 2017).

Whatever the benefits profiling affords, in this case, profiling did nothing to aid investigators or their dealings with the shooters. As Muhammed and Malvo continued their shooting spree, they became frustrated with the police and the media’s representations of the killers. Muhammed began calling police agencies and the task force hotline. He also left notes and shell casings at crime scenes. He asked for money to be wired to an account, and continued his shooting spree when officials did not respond quickly. Spurred on by incorrect profiles, the snipers killed more victims.

Despite a deeply flawed profile, investigators honed in on the killers based on information leaked by the snipers themselves. Muhammed and Malvo spoon-fed authorities’ facts that authorities would need to piece together the identities of the snipers. Muhammed called the Montgomery County, Maryland, police and told them to investigate a recent robbery and fatal shooting in Alabama. A fingerprint from a gun magazine found near the Alabama shooting was then easily linked to John Lee Malvo. This clue eventually led investigators to discover the pair sleeping in their blue Chevy Caprice near Interstate 70 near Myersville, Maryland. After three weeks of terror, in spite of profiling that sent the authorities looking in the wrong direction, the snipers were taken into custody.

Tunnel Vision

Obviously, criminal profiling in general and geographic profiling specifically were abject failures in the DC sniper case. This is because profiling can cause tunnel vision.

Tunnel vision results when there is a narrow focus on a limited range of alternatives…it results in the officer becoming so focused upon an individual or incident that no other person or incident registers in the officer’s thoughts. Thus, tunnel vision can result in the elimination of other suspects who should be investigated. Equally, events that could lead to other suspects are eliminated from the officer’s thinking (Rossmo, 2008, p. 13).

Here, the profile limited investigators to a narrow focus and eliminated viable alternatives, leading to missteps and misattributions and allowing the snipers the freedom to continue their rampage. Thus, according to Turvey and McGrath, [a]ll things tolled, the sniper case represents one of the most spectacular public failures of geographic profiling to date (Turvey & McGrath, 2003).

References

Baker B. Psychological profile: Probing killer’s mind. L.A. Times.; 1985: Available from: http://articles.latimes.com/1985-08-29/local/me-23804_1_psychological-profile/2.

BBC (2007). Man charged with Nickell murder. BBC NEWS. 28 November 2007. Available from: http://news.bbc.co.uk/2/hi/uk_news/england/london/7117564.stm.

Bothe, E., 2002. Available from: http://articles.baltimoresun.com/2002-12-15/entertainment/0212160297_1_van-zandt-serial-killers-snipers.

Daniszewska A. Prosecuting and evidencing crimes: Possible measures to counteract serial murder more effectively. Serial homicide (pp. 63–74). Switzerland: Springer International Publishing; 2017.

Doan B, Snook B. A failure to find empirical support for the homology assumption in criminal profiling. Journal of Police and Criminal Psychology. 2008;23(2):61–70.

Gregory N. Offender profiling: A review of the literature. The British Journal of Forensic Practice. 2005;7(3):29–34.

Laville, S. (2008). Rachel Nickell killing: Met apology a long time coming, says innocent Stagg. Available from: https://www.theguardian.com/uk/2008/dec/18/rachel-nickell-colin-stagg?CMP=share_btn_link.

Legon J. Computer profiler aids in sniper hunt. CNN; 2002: As quoted in Petherick et al. (2010).

McPhee M. Boston strangler case solved 50 years later. : Available from: http://abcnews.go.com/US/boston-strangler-case-solved-50-years/story?id(19640699.

Petherick W, Ferguson C. Criminal profiling. In: Petherick W, Turvey B, Ferguson C, eds. Forensic criminology. Burlington, MA: Academic Press (Elsevier); 2010:177–218.

Renner R, Hemani Z, Tjoumas G, Turley K, Callender C, Elstad B, Smith P. GeoProfiling. Geoinformatics, 2009 17th International Conference on August 2009; 2009 IEEE. 1–4.

Rossmo DK. Criminal investigative failures. CRC Press; 2008.

Sample, I. (2010). Psychological profiling ‘worse than useless’. Available from: https://www.theguardian.com/science/2010/sep/14/psychological-profile-behavioural-psychology.

Scott-Snyder S. Introduction to forensic psychology: Essentials for law enforcement. Boca Raton, Florida: CRC Press; 2017.

Sorochinski M, Gabrielle C. Assumptions underlying behavioural linkage revisited. Psychology and law in Europe. Boca Raton, Florida: CRC Press; 2017: 51-78.

Turvey B, McGrath M. Criminal profilers and the media: Profiling the USA Today. In: Petherick W, Turvey B, Ferguson C, eds. Forensic criminology. Burlington, MA: Academic Press (Elsevier); 2003:177–218: As quoted in Petherick, Wayne, & Ferguson, Claire (2010) Criminal profiling.

White J. Washington Post. : Available from: https://www.washingtonpost.com/local/crime/lee-boyd-malvo-10-years-after-dc-area-sniper-shootings-i-was-a-monster/2012/09/29/a1ef1b42-04d8-11e2-8102-ebee9c66e190_story.html?utm_term(.b3843a121120.

Further Readings

Beltway Snipers. Journal of Behavioral Profiling. 2017;4:1.

D.C. Area Sniper Fast Facts, CNN. Available from: http://www.cnn.com/2013/11/04/us/dc-area-sniper-fast-facts/.

Leinwand, D. (2002). Experts: Accusing shooter of being a coward is risky, USA Today, October 9.

Lever A. Why racial profiling is hard to justify: A response to Risse and Zeckhauser. Philosophy & Public Affairs. 2005;33(1):94–110.: Available from: http://onlinelibrary.wiley.com/doi/10.1111/j.1088-4963.2005.00026.x/full (not cited in text, full article available).

Criminal Profiling: Evidence, Experts, and Miscarriages of Justice

Brent E. Turvey¹    The Forensic Criminology Institute, Sitka, AK, United States

Knowledge of the modus operandi of criminals and methods, their apprehension, skill, patience, tact, industry, and thoroughness, together with a flair peculiar to the successful detective, will be everlasting primary assets in detective work.

- O’Connell and Soderman (1936, p.1)

The history of criminal profiling intersects with professional activity from many disciplines. Primarily, this has included the work of investigators, criminologists, forensic scientists, psychologists, and jurists. It is fair to say that representatives from each of these fields have written themselves into the narrative, either through ongoing casework, publication, or both (see generally Atchereley, 1913; Burgess, Burgess, Douglas, & Ressler, 1992; Canter, 2004; Gross, 1906; Kirk, 1953; Turvey, 2011; Weston & Wells, 1974). Some have served as engines for scientific development, solidifying the foundations of the field; while others have been fraudulent, exploiting the gullibility of those who have watched too many television shows and movies.

This multidisciplinary attention is due to the ongoing and immense popularity of criminal profiling as evidenced by related media portrayals—most of which are fictional or highly fictionalized. This includes coverage in television programs such as Profiler (NBC, 1996–2000), Criminal Minds (CBS, 2005–present), Sherlock (BBC, 2010–present), and Hannibal (NBC, 2013–2015). It also includes films such as Manhunter (1986), Silence of the Lambs (1991), The Cell (2000), Mindhunters (2004), 88 Minutes (2007), Sherlock Holmes (2009, 2011), and Alex Cross (2012).

The fictional criminal profiler archetype is generally portrayed as that of a near psychic detective capable of uncanny insight into criminal behavior (see generally George, 2008). The terrible accuracy of the television detective generally comes from some special skillset, but at a high cost to emotional stability and personal relationships. This makes for great drama and story-telling. It is, however, ridiculously cartoonish.

This portrayal reinforces a false image that tends to attract all of the wrong types of people to the field of criminal profiling. They mimic the fictional aspects of personal distress and brooding, make vague predictions based on flawed assumptions, and offer canned insight. However, they never actually come to appreciate what criminal profiling is or the hard work that scientific investigation requires. When pressed in actual casework, their abilities are as fictional as their demeanor.

Case Example

James (Jim) Clemente, FBI (ret.)

Educated as an attorney, Jim Clemente worked as a prosecutor in the Bronx before taking a position with the Federal Bureau of Investigation in 1987. He retired from the FBI in 2009, and works as a producer for the CBS series Criminal Minds while also writing crime fiction.

Special Agent James Clemente joined the FBI’s Behavioral Analysis Unit at Quantico, VA in 1998. Later, he also worked as a writer for the popular CBS television series Criminal Minds. He did so before retiring from the FBI, meaning that he was simultaneously employed as a Federal Agent and by a fictional television show. This was unprecedented; but permitted because the TV show made FBI profilers look smart, well-funded, and state of the art.

The reality of the FBI’s Behavioral Analysis Unit is quite different from many of its fictional depictions. Jim Clemente exemplifies this disconnect. Without any behavioral science education, Agent Clemente’s testimony as a criminal profiler while working for the Bureau has resulted in overturned court decisions in at least two criminal cases. Both times he diagnosed defendants and speculated as to their mental health without evaluating them. This was a problem because Agent Clemente does not hold any mental health credentials. This means that he was opining beyond his expertise, a practice widely regarded as unethical in the scientific and expert communities. Also, in both cases, the courts held that he improperly assumed the defendant’s guilt to form his conclusions (aka, circular reasoning); and that he relied upon deficient or otherwise invalid methodology (United States v. Gordon E. Thomas III, 2006; United States v. Roger Wesley Farris II, 2008).

Having suffered multiple strikes against him by the courts in the real world of forensic casework and expert testimony, Jim Clemente retired from the FBI in 2009. He went on to become a producer for Criminal Minds. He currently works as a fiction writer and news commentator.

The result of this constant media attention, along with the creation of false yet compelling profiler archetypes, has been a mixed bag. Indeed, it must be acknowledged that the designation criminal profiler conjures powerful images of nearly supernatural abilities among fans of crime fiction. It must also be acknowledged that this fictional reputation has not generally been earned in real life. As explained in Gerber (2017):

…the public holds an outsized view of what profilers can do, said David Wilson, a professor of criminology at Birmingham City University in England who has written critically about profiling. Due in large part to shows such as CSI and Criminal Minds, as well as the film Silence of the Lambs, the public often views profilers as omniscient Sherlock Holmes-esque experts who can quickly identify a killer and decipher the motive, he said. We want to believe in that Holmesian figure that can turn up and magically solve the crime, Wilson said.

California’s courts generally don’t allow testimony comparing a defendant to the characteristics of a typical criminal out of fear that such a profile could easily include innocent people. Judges do, however, often allow profilers to testify about crime scene evidence and what it reveals about possible motives, modus operandi or links to similar crimes by a common perpetrator.

Edward J. Imwinkelried, a professor emeritus at UC Davis who cowrote the annotated California Evidence Code, said he finds nothing inherently wrong with Safarik’s method of drawing conclusions about motive from clues at the crime scene. But he said jurors shouldn’t give it the same weight as expert testimony that relies on theories supported by scientific tests, such as blood spatter. There’s an element of uncertainty, Imwinkelried said.

There is no shortage of criminal justice professionals who want others to think of them as having intense and even unique insight into the criminal mind. They also want others to believe they have access to special or secret training and criminal databases.² They either see themselves that way as part of some metacognitive self-delusion; or they desire to be seen that way out of a sense of professional insecurity. Ultimately, these professionals are focused on what they want others to perceive, and not refining their ability to do the actual work—generally out of ignorance and a fear of being seen to need education or training.

In any case, what we have observed is that very few are capable of doing the hard work and research that is necessary to develop even a fraction of the apprehension that competent and professional criminology requires. Too often, would-be practitioners will be content to fake it, making false claims of education, experience, or affiliations. This reality has led, repeatedly, to miscarriages of justice.

The purpose of this chapter is sift fact from fiction with respect to criminal profiling: to help criminal justice professionals distinguish scientific practice and ethical practitioners from the cons and con-men that abound. It will start with an introduction to criminal profiling, defining what it is and is not. This will lead to an exploration of criminal profiling opinions that become expert evidence and testimony. Then, there will be a discussion regarding professionalization, with respect to practice standards, ethics, and certification. The chapter will close with recent and relevant case studies in which criminal profiler reports and expert testimony have lead to miscarriages of justice.

Criminal Profiling: A Primer

Criminal profiling is a generic term which refers to rendering inferences about the features, qualities, and characteristics of criminals. However, there are more than a few different inferential methods that may be accurately described as criminal profiling (e.g., diagnostic evaluations, criminal investigative analysis, geographical profiling, and behavioral evidence analysis; see Turvey, 2011). Each of these varies with respect to the soundness of underlying theory, methodology, and logical argumentation. In other words, the term is used in reference to competent and incompetent practitioners and methods alike. This includes those who use raw intuition; subjective experience; statistical analysis; inductive generalizations; and deductive logic. Some methods are abstract, general, and predictive; others are concrete, specific, and descriptive. Some rely on group offender data or statistics; some rely solely on experience; and some rely on examining patterns found in case-specific behavioral evidence³ (again, see generally Turvey, 2011).

Moreover, the soundness of a profiler’s methods will come down to the application of their education, training, and experiences: each reverts to the logic and values of their original professional form. Put another way—mental health experts attempt to diagnose the crime scene; investigators follow their gut and experience; criminologists theorize based on the research they have conducted or read; and jurists make arguments based on legal theory and subjective case experience. That is, unless any of these have been formally trained in a particular method or style of criminal profiling that allows them to transcend the presets of their professional origins.

Profiling as Nomothetic Prediction

The fundamental differences between criminal profiling methodology may be referred to as ideographic (e.g., case specific) vs. nomothetic (e.g., grouped averages; see generally Beltz, Wright, Sprague, & Molenaar, 2016). In the academic arena, most criminal profiling efforts are going to be nomothetic (e.g., based on studies of offender groups). A nomothetic profile is a statistical average; it does not actually exist, and is not represented by a real offender walking around and breathing in the real world. In short, nomothetic profiling is constructed by collecting and studying crime data. Nomothetic profilers are therefore more accurately referred to as statisticians. A nomothetic profile is unrelated to specific cases, and therefore cannot offer specific insights or case relevant conclusions in an investigative or forensic context. Nomothetic data can offer context and generalities, but only when they are based on reliable data and scientifically valid methodology.⁴ When nomothetic profiles are used to answer case specific questions, they must be couched in terms of likelihood or probability. In other words, they offer a prediction based on possibilities, and they stand a good chance of being wrong.

Example: Most serial killers or spree murderers are lone white males; therefore, the suspect in a specific string of murders must be a white male acting alone.

In law enforcement, profiling methods are going to be informal and experienced based. Informal nomothetic analysis is that which relies not on empirical research but rather individual belief and awareness. This occurs when someone refers to, or relies upon, subjective observation of the past in order to render case specific conclusions. In other words, they guess at who is the most likely suspect, and their traits, based on memories regarding associations drawn from prior cases.

The problem here is fairly straightforward: not all experience is equal, relevant, or even informed. Bias, prejudice, ignorance, and bigotry weigh heavily when thinking is not organized or systematic. Worse, many of those who claim to be relying upon experience to render profiles are actually referencing imagery from movies or television. Lack of real life exposure or relevant contact with violent crime makes this a necessity. Such inexperience is common, and includes many of those who work in law enforcement. For instance, the vast majority of police officers will never draw their weapon, let alone participate in a gunfight; and most will not work directly on a homicide investigation.⁵

Example: A new case involving a murdered child is similar to one that occurred a year ago in which the mother was responsible. Therefore, the mother is likely responsible in the new case.

Case example

Park E. Dietz, MD—Forensic Psychiatrist

Park E. Dietz, MD, a well-known forensic psychiatrist who runs The Threat Assessment Group in California which employs multiple retired FBI profilers. His credibility as a forensic expert and profiler has suffered in the courtroom.

Even the most educated and experienced profilers are not immune from contamination by the news media and popular culture. For example, consider Park E. Dietz, MD, a well-known forensic psychiatrist who runs The Threat Assessment Group in California which employs multiple retired FBI profilers. In two high profile cases, Dr. Dietz has incorrectly concluded, and then provided erroneous expert evidence, that a criminal defendant was inspired to commit their crimes by a highly publicized crime or a crime depicted on a popular television program.

First, Dr. Dietz testified as expert in the trial of Andrea Yates. He asserted that weeks before murdering her own three children, she had watched an episode of Law & Order in which a woman drowned her children and was found not guilty by reason of insanity. This detail was repeated during the trial by prosecutors and their other witnesses. However, it was later determined that no such episode aired. Dr. Dietz was forced to retract his testimony, and Yates’ 2005 conviction was subsequently overturned. She was retried in 2006 and found not guilty by reason of insanity (Park, 2008).

Separately, Dr. Dietz repeated this same error in a later case, United States. v. O.C. Smith (2006). This involved a medical examiner accused of staging a crime against himself. Dr. Dietz wrote an expert report in which he concluded that Dr. Smith attached a live bomb to his neck, inspired by a similar high-profile case. However, the only similar case occurred on August 28, 2003, when a pizza delivery man robbed a bank and was killed when the device around his neck exploded. This occurred a year after Dr. Smith was attacked. Dr. Dietz’s broad array of unsupported opinions in the O.C. Smith case were subsequently discredited, and the trial resulted in a hung jury. Dr. Smith was not retried.

Profiling as Ideographic Analysis

Idiographic (individual) study is that which builds direct knowledge about the facts and evidence in relation to specific person, situation, or case. Ideographic offender profiles, therefore, are characteristics developed from the logical examination of details found in a single event, or a series of cases linked to a single offender. In other words, an idiographic criminal profile is meant to be concrete—it should describe an actual offender that exists in the real world based on an examination of related facts and logical evidentiary inference. It is not couched in terms of likelihood or probabilities, and it is not a prediction. Conclusions must flow directly from the evidence at hand. The trick, of course, is knowing the difference between an untested theory and a deductive conclusion. This is a matter of properly employing the science of logic while avoiding logical fallacy and bias.

Example: The victim’s body was found in a remote location far from where they were acquired, which can only be accessed by a vehicle; therefore, the offender has access to a vehicle.

Example: The offender could only have entered a victim’s residence using a passcode or key; therefore, the offender had access to a passcode or key.

Professional Standards and Certification

As with every profession or discipline, a threshold question must be asked: what are the necessary qualifications? Before we answer this for criminal profilers, we must first acknowledge that the same question has yet to be answered for the majority of forensic science disciplines. Debate and inconsistency abound in the forensic professions, given that many of those offering testimony in related areas are police officers testifying for the state, and not actually educated or trained scientists (see Edwards & Gotsonis, 2009; DOJ, 2016). This reality has long prevented the professionalization of the forensic sciences.

With this in mind, we can take note of an observation by Snook, Gendreau, Bennell, and Taylor (2008, p. 42), specific to criminal profiling, that: there is no consensus about who is qualified to be a profiler. This was and remains true in many areas of criminal profiling. Worse, there are government agencies and practitioners who believe that they alone control the gateway to criminal profiling practice; or that they alone have accumulated the special constellation of experiences required. That is not how science works; and that is not how professional development works.

There are, however, specific requirements for scientific practice. As detailed and referenced in Crowder and Turvey (2013), a profession is defined by its ability to set basic standards for competent work, and then to compel its members to conform to established protocols.⁶ In accordance with the National Academies of Science (NAS, 2009), this requires a uniform and published set of terms, definitions, practice standards, and ethical guidelines. Generally, this is accomplished by the publication of uniformed reference texts and research, and by the formation of independent professional organizations. Such groups must have clear membership requirements and member guidelines, and they must be able to sanction or expel those unable or unwilling to meet them. Indeed, their ultimate goal should be to develop a competent and reliable mechanism for practitioner screening and certification.

Professional Certification

Professional certification refers to the process of establishing that a practitioner has achieved a particular level of knowledge, skill, and ability as demonstrated by coursework, instruction, and/or supervised experience. This fact is endorsed by a signed document from the organization facilitating or providing the certification. A discussion regarding the value of professional certification, and its absence in the forensic sciences, is provided in the NAS Report (Edwards & Gotsonis, 2009, p. 208):

The certification of individuals complements the accreditation of laboratories for a total quality assurance program. In other realms of science and technology, professionals, including nurses, physicians, professional engineers, and some laboratorians, typically must be certified before they can practice. The same should be true for forensic scientists who practice and testify. Although the accreditation process primarily addresses the management system, technical methods, and quality of the work of a laboratory (which includes the education and training of staff), certification is a process specifically designed to ensure the competency of the individual examiner.

However, as explained in Giannelli (2007), not every professional organization cares about quality or competence; many care only about the ability of members to pay fees and dues (p. 227):

A number of organizations offer examiner certification programs. Some certifying organizations, however, appear to lack stringent requirements. Instead, they issue what are reported to be checkbook credentials. Rigorous certification standards should be instituted for examiners in order to ensure competence. Demanding written examinations, proficiency testing, continuing education, recertification procedures, an ethical code, and effective disciplinary procedures should form the basis of such a program.

The value of such credentialing is therefore equal only to the scientific practice and related character of those that offer it. To be more specific, the value of certification is tested by the rigor of the educational and ethical requirements of the certifying organization; and by their willingness to revoke certifications when these requirements are not met. If a certifying organization has no written ethical guidelines or practice standards; has never revoked professional credentials; and refuses to do so even in the face of fraud and misconduct, then their credential has no value.

The Criminal Profiler Professional Certification Act of 2013

In 1998, The Academy of Behavioral Profiling (ABP; www.profiling.org) was formed as an interdisciplinary professional organization, dedicated to the development of investigative and forensic protocols related to evidence-based criminal profiling. This also meant establishing, for the very first time, a code of ethics for criminal profilers. The ABP’s first meeting was held in March of 1999, in Monterey, California, and the founding members included a retired FBI profiler, two forensic scientists, a forensic psychiatrist, and an NYPD sex crimes detective. Over the course of 2009–10, the ABP became a credentialing board within the International Association of Forensic Criminologists (IAFC). The IAFC/ABP continues to be the cooperative work of forensic, behavioral, and investigative professionals. In its time, it has drafted, adopted, and refined the first written professional code of ethics for criminal profilers; the first written criminal profiling guidelines; and the first profiling general knowledge exam. Furthermore, it has created a unified body of literature that is based on scientific principles and practice (see Chisum & Turvey, 2012; Crowder & Turvey, 2013; Freeman, Petherick, & Turvey, 2010; Turvey, 2011, 2012, 2013a,b). But, more importantly, it has a history of publicly expelling members for fraud and misconduct.⁷

In June 2013, the IAFC voted to pass the Criminal Profiler Professional Certification Act (CPPCA). It is the first and only independent certification available in the discipline of criminal profiling. Since its ratification, the Act has been used to certify qualified profilers in the United States, Canada, Colombia, China, South Korea, Mexico, and Guatemala.

The Criminal Profiler: Basic Qualifications

In comportment with the IAFC Professional Certification Act, a criminal profiler must have a formal education related to criminal investigation, a forensic science, or a behavioral science; they must have a clear methodology with consistently defined terminology and related published literature; they must have a clearly stated code of professional ethics to which they are accountable; and they must also be actively involved in casework that necessitates writing profiles and potential courtroom testimony. If a given professional does not write profiles as part of active casework, and does not or cannot testify in court in relation to their professional findings, then they are not a criminal profiler. Moreover, secret reports and secret research do not count, as expertise must be independently assessed and validated, continuously, by the peer review process.⁸ This is the transparency that science requires in order to ensure that a given professional, and their practices, are not improperly shielded from scientific scrutiny.

Profiling as