International Journal of Law and Psychiatry 49 (2016) 55–65

Contents lists available at ScienceDirect

International Journal of Law and Psychiatry

Criminal profiling as expert witness evidence: The implications of the

profiler validity research
Richard N. Kocsis a, George B. Palermo b
a
Psychologist in Private Practice, Sydney, Australia
b
University of Nevada School of Medicine, Henderson, NV, USA

a r t i c l e i n f o a b s t r a c t

Article history: The use and development of the investigative tool colloquially known as criminal profiling has steadily increased
Received 14 May 2016 over the past five decades throughout the world. Coupled with this growth has been a diversification in the
Accepted 16 May 2016 suggested range of applications for this technique. Possibly the most notable of these has been the attempted
Available online 20 June 2016
transition of the technique from a tool intended to assist police investigations into a form of expert witness
evidence admissible in legal proceedings. Whilst case law in various jurisdictions has considered with mutual
Keywords:
Criminal profiling
disinclination the evidentiary admissibility of criminal profiling, a disjunction has evolved between these judicial
Criminal investigative analysis examinations and the scientifically vetted research testing the accuracy (i.e., validity) of the technique. This article
Profiler validity offers an analysis of the research directly testing the validity of the criminal profiling technique and the extant
Profiler accuracy legal principles considering its evidentiary admissibility. This analysis reveals that research findings concerning
Crime scene analysis the validity of criminal profiling are surprisingly compatible with the extant legal principles. The overall conclu-
Expert witness evidence sion is that a discrete form of crime behavioural analysis is supported by the profiler validity research and could be
regarded as potentially admissible expert witness evidence. Finally, a number of theoretical connections are also
identified concerning the skills and qualifications of individuals who may feasibly provide such expert testimony.
© 2016 Elsevier Ltd. All rights reserved.

1. Introduction undertaken within the context of law enforcement investigations that

Beyond the many fictional portrayals starting with the 19th
century literary works of Sir Arthur Conan Doyle (Doyle, 2009) to
the more recent novels by Thomas Harris (Harris, 1981, 1988,
1999) the concept of analysing behavioural features exhibited in a
crime to formulate an impression of the offender has, over the past
five decades, grown substantially in terms of its use by law enforce-
ment and the scholarly research undertaken into its development
(e.g., Douglas, Burgess, Burgess, & Ressler, 2013; Hazelwood,
Ressler, Depue & Douglas, 1995). Although a universally recognized
label does not currently exist for such crime behavioural analysis
the technique has broadly and colloquially come to be known as
‘Criminal Profiling’ (Kocsis, 2015). Inherent to this growth in criminal
profiling has also been a gradual diversification surrounding the
types of analyses associated with the technique. That is, beyond
its original conception as a technique oriented towards identifying
characteristics of the probable offender criminal profiling also
encapsulates numerous other analytic endeavours such as, but not
limited to, the differentiation of motivational factors, reoccurring
behavioural patterns, and the geographic relevance of crime
locations (e.g., Douglas et al., 2013; Kapardis, 2014; Rossmo, 2000).
Notwithstanding these variant forms of analysis encapsulated under
the rubric of criminal profiling all nonetheless share one common
feature. This is their foundational conception as analytic mechanisms
are designed to assist with the apprehension of unknown offenders1
1
It should be noted from the outset that the generic term of ‘criminal profiling’ is used
throughout this manuscript to describe the forensic psychiatric/psychological technique
of assessing behavioural features evident within a crime or series of crimes for the purpose
of inferring attributes about the crime(s) and/or its perpetrator(s). Although the exposition
canvassed within this manuscript predominantly adopts this generic term the technique of
profiling violent crimes is, in fact, characterized by a host of differing methodological ap-
proaches. Accordingly, the topic and field can be conceptualized in metaphor as being anal-
ogous to the topic ‘personality theory’ within the disciplines of psychiatry and psychology.
There exists a general consensus pertaining to the construct of the mind and human con-
sciousness. However, the precise machinations as to how the mind operates are the subject
of diverse theoretical perspectives such as, but not limited to, psychodynamic, behavioural
and cognitive paradigms. Likewise, the topic of criminal profiling is characterized in the
same manner with a general consensus concerning the viability in evaluating crime behav-
iours to infer attributes about the offender. However, how this task is optimally accom-
plished is the topic of rivalling theoretical and methodological perspectives.
Starting in the late 1970s to the present day the conceptual basis of criminal profiling has
gradually evolved whereby it is now widely regarded as constituting another disciplinary
component of mainstream forensic psychology (Kapardis, 2014). This recognition of criminal
profiling has progressed to such an extent that dedicated analysts who perform such profiling
tasks have been in operation for many decades in the USA under the auspices of the U.S. De-
partment of Justice's National Center for the Analysis of Violent Crime (Douglas, Burgess, Bur-
gess, & Ressler, 1992; Douglas et al., 2013). In recent years this professional recognition of
profiling has extended to the United Kingdom wherein analogous tasks are now performed
under the nomenclature of Behavioural Investigative Advisor. One common feature to the de-
velopments in this profiling of violent crimes and its professional recognition throughout the
world has been an increasing orientation towards empirical, evidence based research meth-
odologies incumbent to the practises of such crime analysts (Kapardis, 2014).

http://dx.doi.org/10.1016/j.ijlp.2016.05.011
0160-2527/© 2016 Elsevier Ltd. All rights reserved.
56 R.N. Kocsis, G.B. Palermo / International Journal of Law and Psychiatry 49 (2016) 55–65
(Rossi, 1982; Skeem, Douglas, Lilienfeld, 2009; White, Lester, Gentile &
Rosenbleeth, 2011).
However, over time a gradual transition has occurred concerning
the contextual formulation of criminal profiling. That is, beyond its
traditional application within police investigations there have been grow-
ing efforts for criminal profiling or some derivative style of analysis to be
used as a form of expert witness evidence (Freckelton & Selby, 2013).
Consequently, accompanying this growth and development in criminal
profiling have been attempts to slowly evolve its conceptual basis into a
form of proof capable of assisting the determination of an individual's
guilt or innocence within the context of criminal proceedings.
In a generic context the technique of criminal profiling has for some
time suffered from an imbalance between the favourable reputation the
technique appears to enjoy and the scientifically grounded research that
might substantiate its capabilities and thus reputation (e.g., Herndon,
2007; Oleson, 1996). Unfortunately, one manifestation of this phenom-
enon concerns its forensic application wherein past attempts to use the
technique as evidence in legal proceedings appear to have occurred well
in advance of the scientifically vetted research that might be capable of
validating its admission (e.g., R. v Hillier (2003); State v Stevens (2002)).
Accordingly, the present article attempts to make an initial contribution
towards addressing this apparent disparity by examining the legal
principles relevant to the potential admissibility of criminal profiling as
expert witness evidence in conjunction with the scientific research test-
ing its accuracy (i.e. validity). Previous considerations of the evidentiary
admissibility of criminal profiling have predominantly been focused
upon reviewing and providing commentary on the evolving case law in
the area (e.g., Bosco, Zappala, & Santtila, 2010; Ebiskike, 2008;
Freckelton & Selby, 2013; Myers, 2007). However, what has not been un-
dertaken within the context of jurisprudence is an integrated examina-
tion of the scientific research generated over the decades which has
systematically sought to test the validity of criminal profiling; that is,
examination of this research and the implications that its findings
may present, if any, to support criminal profiling or some variant form
of behavioural analysis as legally admissible expert witness evidence.
2. Sub-optimal material for scientific validity
As a preliminary step in understanding the methodological features
of the research which scientifically tests the validity of criminal profiling
some examination is necessary regarding unsuitable forms of material
which have been posited for the validity of criminal profiling. Possibly
the single largest source of such material are case studies which extol
the utility of criminal profiles in resolving criminal investigations
(Herndon, 2007). Such case study examples range from popular true
crime literature (e.g., Britton, 1997; Douglas & Olshaker, 1995; Ressler
& Shachtman, 1997) to case vignettes documented in scholarly articles
(e.g., Pinizzotto, 1984).
Despite the intuitive appeal of case examples such accounts are,
from a scientific standpoint, constrained from the outset due to a
number of factors. The first is the well documented phenomenon of
numerous cognitive and perceptual distortions known to operate in
the human psyche which are likely to skew the reliability of such ac-
counts (e.g. Nickerson, 1998; Roese & Vohs, 2012; Torres, Boccanccini,
& Miller, 2006). Secondly, case study examples are also undermined
when considered collectively from a systematic methodological
perspective. Momentarily setting aside the aforementioned short-
commings concerning the reliability of such accounts, all case study
examples represent idiosyncratic demonstrations. Unfortunately,
empirically measuring the proficiency of any criminal profile in such a
context is indeterminately confounded by the methodological inability
to discount the particular characteristics that might exist within one
case but not another. Consequently, whilst case study examples and
research based upon case studies can provide qualitatively rich illustra-
tions of a technique in practise (e.g. Yin, 2013) such material does
not represent a scientifically robust platform for measuring accuracy
(i.e. validity), as there is no reliable method to control and thus ascertain
whether any demonstrated proficiency may somehow be related to the
particular attributes of the specific cases concerned.
Another source of material often posited in support for the validity of
criminal profiling originates from various surveys and testimonials
pertaining to the perceived benefits and thus conceptualized utility of
the technique (e.g., Copson, 1995; Jackson, Van Hoppen, & Hebrink,
1993; McCrary & Ramsland, 2003).
At the core of this transmogrification of ‘benefit’ (i.e. utility) being
equated with ‘accuracy’ (i.e. validity) is a rationale which has been
described as the ‘operational utilitarian argument’ (Kocsis, 2003). The
basis of this argument is the inference that criminal profiles would be
incapable of assisting police investigations if they were not accurate.
Consequently, as police agencies continue to use criminal profiles this
operational circumstance serves to demonstrate their utility—ergo
validity. Simply put, the continued use of criminal profiles by police
investigators indirectly demonstrates via inference their validity.2
Unfortunately, the proverbial Achilles' heel to this argument is not
its rationale per se but rather the metric upon which it is based. That
is, the aforementioned perceptual and cognitive distortions surround-
ing the reliability of case study accounts are again a prominent factor
in reliably gauging the perceived benefits derived from criminal profiles.
On this issue a number of experiments have demonstrated the tangible
manifestation of perceptual distortions when the utility of criminal
profiles are considered and thus in turn interpreted as proxy measures
for validity (e.g. Kocsis, 2013; Torres et al., 2006). As a consequence,
the construct of utility is indeed an important consideration when
appraising the overall merits of criminal profiling as a viable investiga-
tive aid. However, it cannot also robustly act as a proxy for the validity
of the technique.
Another source of material attesting to the validity of criminal
profiling is the claim that criminal profiles as developed by the United
States Federal Bureau of Investigation (FBI) possess a 75%–80% accuracy
ratio. Within the literature surrounding the topic of criminal profiling
this claim has achieved veritable folklore status with one of its earliest
citations found in Pinizzotto (1984). The dilemma with this statistic is
its apparent origin in an unpublished FBI internal report not available
to the public (i.e. Institutional Research and Development Unit, 1981).
Accordingly, this circumstance brings into question the methodology
and basis upon which this statistic is derived as both of these factors
are unknown. As a consequence, the worth of this statistic is the source
of trepidation within the traditional conventions of both science and
law.3 In this latter context the judiciary in one case noted:
“...we find that the FBI's study revealing a seventy-five to eighty
percent accuracy rate for crime scene analysis lacks sufficient trust-
worthiness to constitute evidence of this technique's reliability....In
this case, there is no testimony regarding how the FBI determined
the accuracy of this analysis.”State v. Stevens (2002)
Finally, there have been suggestions that the validity of criminal
profiling could be gauged by indexing the use of the technique against
crime statistics to establish whether any demonstrable benefit can
2
Ostensibly this entire rationale is a manifestation of the old English proverb ‘the proof
is in the pudding’.
3
Any internally conducted research can feasibly serve a worthwhile purpose when con-
sidered within the context of its own operational framework such as, for example, a police
agency concerned with its own organizational development. Accordingly, the findings of
an internal report can indeed be considered valid and acceptable when considered within
the context of its individual internal environment. However, the criteria in terms of rigour
and merit upon which any research is assessed varies dependent upon context. For the
findings of any research to transcend one context to another requires that it be subject
to scrutiny via the standards of that alternate context before it can be regarded as accept-
able. Unfortunately, this has not occurred and thus as noted in the decision of State v Ste-
vens (2002) whilst the claim of a 75–80% accuracy ratio is tantalizing it is currently
unsuitable within the context of legal forums.
 R.N. Kocsis, G.B. Palermo / International Journal of Law and Psychiatry 49 (2016) 55–65
be observed (Dern, Dern, Horn & Horn, 2009; Kocsis, 2015). The ratio-
nale being that to effect an improvement in the rate of solved crimes
the technique must presumably be valid. Unfortunately, such an ap-
proach cannot be relied upon as scientifically robust due to two factors.
First, this once again represents another unsatisfactory transmogrifica-
tion of constructs in terms of ‘utility’ being used as a proxy for ‘accuracy’.
In this particular circumstance the principles of scientific parsimony
challenge such a methodologically indirect and thus nebulous approach
to measurement (Ariew, 1976; Baker, 2004; Elliott, 1981). This factor
highlights a second conundrum which is that such an approach is not
capable of being empirically controlled to sufficiently establish a causa-
tive basis between the individualized use of the technique and any
indexed crime statistics.4 That is, in effect this notion represents an at-
tempt to juxtapose a macro-level criminological phenomenon as evi-
dence for the validity of a technique as performed on a micro- (i.e.
individualized) forensic level.5
3. The profiler validity research
To optimally assess the validity of criminal profiling within the
doctrines of scientific empiricism ideally entails the measurement of
its accuracy via studies that utilize pure (i.e. fully controlled) experi-
mental research designs (e.g., Jefferys & Berger, 1991; Kirk, 2013;
Popper, 1992). Due to legalities and ethical principles pure experimen-
tal methodology is simply not feasible.6 However, a close approximation
of such methodological procedures can nonetheless be achieved via the
use of quasi-experimental designs. In this context, the first published
experiment to robustly seek to assess the validity of criminal profiling
via such procedures features as a sub-component of the research under-
taken by Pinizzotto and Finkel (1990).
The first step in Pinizzotto and Finkel's (1990) experiment involved
obtaining police case materials pertaining to a previously solved murder
and sexual assault case. These materials were summarized into
individual case packages which documented the information police
investigators had during the course of their investigation up until the
identification and apprehension of the respective offenders. Thus,
these case packages ostensibly simulated the circumstances of the
police investigations (minus any information pertaining to the identity
of the respective offenders) at a point in time whereby a criminal profile
could have been obtained to assist the investigation. Attached to these
case packages was also a multiple-choice questionnaire which was
designed to record responses about the offence and probable offenders.
That is, Pinizzotto and Finkel also developed a series of multiple-
choice questions (i.e. a questionnaire) which would systematically
record each participant's responses concerning their predictions of the
offender and the crime. As both the murder and sexual assault cases
had been previously solved the identity of the respective offenders
were known to Pinizzotto and Finkel. Accordingly, a set of model
4
An example of this phenomenon was the concept of zero tolerance policing. Whilst
crime reduction coincided with the implementation of the policy, the recorded reduction
was not able to be causatively attributable to the policy over a host of other potential var-
iables (Innes, 2002).
5
Ironically, the admissibility of expert witness evidence provides a good platform for il-
lustrating the untenable nature of this proposition. For example, in providing testimony
about exhibited behaviours surrounding a specific murder an expert witness will not be
able to substantiate the validity of their analysis of the crime scene (for example, multiple
shallow pre-mortem stab wounds suggests sadism) based upon the indexation of generic
macro-level crime statistics. That is, the mere existence of any incremental statistical corre-
lation between the number of solved murder cases in a particular region and the use of
criminal profiling does not necessarily denote that the aforementioned interpretation of
crime scene stab wounds by the individual expert witness is correct.
6
For example, a hypothetical study which might be regarded as utilizing a “pure” ex-
perimental research design would require the researchers to commit a crime themselves
in a designed and thus controlled fashion which could thereafter be incorporated into the
methodology of the study.
57
(i.e. correct) answers to the multiple-choice questions for each ques-
tionnaire concerning both the murder and sexual assault case was also
developed.
This case package and questionnaire apparatus enabled exactly the
same cases (i.e. the murder case and the sexual assault case) to be
provided to any number and variety of potential participants for the
purpose of studying the case materials and providing their responses
in terms of their predictions (i.e. criminal profile) concerning the
characteristics of the likely offender and crime. Thereafter, each
participant's responses on the questionnaires could be objectively
scored for accuracy via the corresponding set of model answers for ei-
ther the murder or sexual assault case. Via this procedure each
participant's accuracy score could be tabulated and dependent upon
various experimental conditions, subjected to statistical analysis. As a
result the various participants' performance in terms of their levels of
accuracy in profiling the crimes (i.e. correct responses via the
multiple-choice questionnaire items) served to provide an objective
quantified measurement and thus indication of validity.
With the development of this apparatus Pinizzotto and Finkel
(1990) obtained four skill based groups (consisting of six subjects in
each) who were respectively classified as ‘trained profilers’, ‘detectives’,
‘psychologists’ and ‘students’. The participants in each of these groups
were provided with copies of the murder and sexual assault case
packages and instructed to study the respective cases and provide
their responses in terms of profiling the crimes via the attached
multiple-choice questionnaire. Once all questionnaires had been
completed, scored and subjected to statistical analysis Pinizzotto and
Finkel found that the accuracy scores of the trained profilers surpassed
those of the other three groups in the sexual assault case. However,
this same level of proficiency was not observed in the murder case
wherein the trained profilers were found to be no better than any of
the other three skilled based groups.
The ingenuity of Pinizzotto and Finkel's (1990) experiment is
not simply its originality but its design parameters which serve to
counteract the confounding factors which surround the aforementioned
unsuitable material proposed as evidence for validity in criminal
profiling. First, it quantifies objectively the analysed medium (i.e. the
undertaken profiling task) in terms of the same crime (i.e. the same
murder and sexual assault case) being examined by all subjects in the
experiment. This design parameter notably however, deals with the
problems associated with measurements (i.e. accuracy scores) poten-
tially being attributable to artefacts of differing cases. As previously
explained, this is the invalidating factor surrounding the use of testimo-
nials and compilations of past cases involving profiling. Secondly, all
responses from the participants (in terms of the rendered profiles) are
likewise objectively capable of quantification. Consequently, there is
little scope for subjective interpretation surrounding what, for example,
the content of a profile may actually mean. Likewise, there is little
opportunity for artefacts to arise around the scope of the obtained
profiles as the questions and response options (i.e. which set the
parameters of the profile) are the same for all participants.7 These
features serve to overcome problems surrounding the basis of the
assessed constructs which reflect direct (i.e. micro level) measurements
of accuracy and are not tangential constructs which are being adapted
to indirectly act as proxies for accuracy. Finally, as Pinizzotto and
Finkel's (1990) research is published the methodology and basis of its
7
Accordingly, the measurement of accuracy in the Pinizzotto and Finkel (1990) exper-
iment was a genuinely objective metric purely determined via correspondence with the
correct answer for each multiple-choice question contained in the questionnaire. More-
over, via these design features the rendered data in terms of the tabulated accuracy scores
could be subjected to multivariate statistical analysis to ascertain the differences (if any) in
proficiency and thus indications of validity in criminal profiling of the crimes in a scientific
manner.
58 R.N. Kocsis, G.B. Palermo / International Journal of Law and Psychiatry 49 (2016) 55–65
Table 1
Accuracy measure.
Group Total accuracy Physical characteristics
Profilers (n = 11) 0.82 0.56
Psychologists (n = 36) 0.16 0.50
Science students (n = 85) 0.31 0.40
Specialist detectives (n = 25) −0.43 0.17
General police (n = 85) 0.07 0.19
Police recruits (n = 50) 0.17 0.22
Non-police specialist (n = 12) 0.12 0.48
Psychics (n = 20) −0.14 −0.38
Controls (n = 120) −0.36 −0.73
Statistics reflect converted z scores. Values closest to 1.0 denote level of accuracy.
Table adapted from: Kocsis, R. N. (2003). Criminal psychological profiling: Validities and abilities? International Journal of Offender Therapy & Comparative Criminology, 47(2), 126–144.
(C) Sage publications.
findings can be freely considered when required which in turn assists in
satisfying the conventions of independent scrutiny observed in the
scientific and legal realms.
Although a very commendable beginning, the experiment by
Pinizzotto and Finkel (1990) is not without its limitations however,
particularly when considered within the context of evidentiary admissi-
bility. The first is the small sample pool used in the experiment which, in
total, consisted of 24 subjects. Secondly, the participants who comprised
the ‘profiler’ group were not representative of individuals who were
regarded as ‘expert’ profilers but were instead arguably individuals who
possessed a comparatively modest degree of training and experience in
the composition of criminal profiles (see Kocsis, 2013). Third, the scope
of the questionnaire was relatively modest and consisted of just 17
multiple-choice items in total. Moreover, the analysis of the obtained
data only rendered measurements concerning overall accuracy and did
not offer insight concerning how any proficiency was accomplished.8
Finally, Pinizzotto and Finkel's experiment lacked a control condition
for a baseline in performance and instead relied on probability equations
to gauge inferential statistical differences in performance.
Approximately a decade after Pinizzotto and Finkel (1990) a
research programme by Kocsis and colleagues was undertaken that
aimed to replicate and build upon Pinizzotto and Finkel's original exper-
iment. These studies likewise developed case packages pertaining to
murder and arson cases (instead of a sexual assault) which featured
corresponding multiple-choice questionnaires which could be scored
via a set of model answers derived from the apprehended offenders.
However, cognizant of the aforementioned limitations, a number of
improvements were incorporated into these studies. The first of these
was the size of the research programme involving numerous, original,
data driven experiments wherein the accumulative sample pool of
tested subjects featured over 440 participants. Second, the scope of
the skill based groups of participants was substantially expanded.9
Additionally, the sampled profilers in the experiments involved senior
forensic psychiatrists and psychologists who had previously undertaken
profiling consultancies for police agencies and thus could arguably be
regarded as possessing ‘expert’ status concerning their profiling abilities
(Kocsis, 2013). The third refinement related to substantial development
of the multiple-choice questionnaire. On a simple quantitative level
the size, in terms of incorporated questions (and thus requested
predictions) was almost doubled, providing for a far more detailed
profiling task. Additionally, on a qualitative level the individual
questionnaire items were also formulated into differing contextual
8
Thus, whilst Pinizzotto and Finkel (1990) found that the trained profilers surpassed
the other groups in accurately predicting the attributes of the offender these results were
not formulated in a manner which might provide some insight as to ‘how’ they were supe-
rior. That is, the experiment did not explain where in terms of features of the crime or of-
fender this proficiency was being exhibited.
9
In this context a host of different police personnel with differing levels of law enforce-
ment experiences as well as other relevant professional skill based groups were incorporated.
Cognitive processes Offence behaviours Social history & habits
0.34 0.34 0.49
−0.30 0.33 −0.10
−0.18 0.10 0.37
−0.37 −0.22 −0.47
0.07 −0.08 0.00
0.15 −0.26 0.24
−0.40 −0.23 0.35
0.19 0.05 −0.18
0.15 0.02 −0.28
categories reflecting the differing analytic tasks undertaken and forms
of information collectively encompassed by a criminal profile. These
categories were entitled ‘physical characteristics’, ‘cognitive processes’,
‘offense behaviors’, and ‘social history and habits’. The final adjustments
featured in the studies by Kocsis and colleagues were the incorporation
of control participants. Accordingly, these subjects not only acted as
contrasting points of comparison for the skill-based groups of partici-
pants but also provided a benchmark measurement of what could be
achieved in terms of levels of proficiency in profiling the cases from
purely guessing the responses and/or reliance upon stereotypical
notions of the typical murderer or arsonist.
A full description of the findings from the various individual experi-
ments undertaken by Kocsis and colleagues cannot be accommodated
within the present article.10 However, these studies have collectively
come to be known as the ‘profiler validity research’ and in Kocsis
(2003) an omnibus analysis of the data collected over many of these
experiments was undertaken. The results of this analysis are summa-
rized in Table 1.
The overall findings of this research was that the sampled profilers'
level of proficiency in terms of accurately predicting (i.e. analysing
and interpreting) the characteristics of the offenders and features of
the crime (in both the murder and arson cases) was superior and
surpassed all of the compared skill based and control groups of partici-
pants. Thus, this research provided some scientifically-robust evidence
demonstrating the validity of criminal profiling (Kocsis, 2013, 2015;
Kocsis & Palermo, 2015). Moreover, due to the developments in the
incorporated questionnaire, a further break-down of these results was
possible and thus yielded measurements of the various analytic tasks
inherent in profiling these crimes, thus offering insight into how the
profilers were able to achieve their overall level of proficiency.
4. The evidentiary case law
A detailed examination of the expansive area of jurisprudence
concerning the admissibility of expert witness evidence is not feasible
within the context of the present article. However, by way of synopsis
the courts have it appears, through the generation of case law, explored
10
It should be understood that the central thesis and purpose of the present article is to
examine the implications of the previously published research concerning the validity of
criminal profiling with the evolving (predominantly North American) case law pertaining
to the admissibility of expert witness evidence. Accordingly, the scope of the present arti-
cle is not capable of providing anything other than a brief synopsis of the existing research,
nor is it the purpose of this article to provide extensive exposition of same. As already in-
dicated, the key purpose of the present article is to consider the pre-existing research find-
ings within the context of jurisprudence and is not intended to be a comprehensive
presentation of this previously peer-reviewed and published scientific research. Accord-
ingly, readers should refer to each of the original research publications for more detailed
description of the overall methodology and modes of statistical analysis employed along
with the findings yielded.
 R.N. Kocsis, G.B. Palermo / International Journal of Law and Psychiatry 49 (2016) 55–65
numerous concepts pertaining to the admissibility of expert evidence.
Such considerations have been chronicled over many decades and with-
in the framework of United States11 case law and legislation principles
such as general acceptance (as first noted in Frye v. United States) as
well as the evolution of the Federal Rules of Evidence (and benchmark
cases such as Daubert v. Merrell Dow Pharmaceuticals, General Electric
v. Joiner and Kumho Tyre Company v. Carmichael) have explored the
11
At the outset, it should be noted that the scope of the present article is not capable of
providing an exhaustive analysis of the legal principles and nuances inherent to every ju-
risdiction throughout the world. Accordingly, only an overview of key issues is examined
herein concerning the implications of the profiler validity research to the admissibility of
expert witness evidence within the United Kingdom (in acronym ‘UK’).
In contrast to the U.S. legal system and its development of principles for assessing the sci-
entific reliability (and thus admissibility) of expert witness evidence the approach
adopted by various jurisdictions within the UK (primarily England and Wales) has been
described as one of “benevolent acquiescence” (Freckelton, 2014, p.227). With this in mind,
the dominant case which has guided judicial reasoning and judgements for decades was
that of R v Turner which established that the admissibility of expert witness evidence
should be determined via a test of ‘common knowledge and experience’. The fundamental
basis to this approach stems from foundational principles determined much earlier in
the matter of Folkes v Chadd. In this seminal case it was established that the admissibility
of expert witness evidence should be evaluated on the basis of whether the evidence pro-
vides the court with “information that is likely to be outside the common knowledge and
experience of the jury” (Freckelton, 2014, p.227). The overall application of these concepts
by the UK judiciary has generally been to the effect that any form of expert witness evi-
dence of a psychiatric or psychological nature which did not specifically pertain to some
form of ‘mental abnormality’ (e.g. mental disorders, handicaps or automatism) was consid-
ered to be within the scope of ‘common knowledge and experience’ and therefore not
admitted.
This line of reasoning characterized judicial determinations within UK courts for decades
until the comparatively recent matter of R v Sally Loraine Emery. In this leading case it was
determined that whilst the expert witness evidence was not strictly confined to mental
abnormality, it was nonetheless determined to be of such complexity and sophistication
to be regarded as sufficiently beyond the conceivable scope of common knowledge and
experience and on this basis therefore its admissibility was justified. The Emery case marks
a definitive turning point in contemporary legal reasoning within the UK concerning the
admissibility of expert witness evidence of a psychiatric or psychological nature. Following
the Emery case judicial decisions within the UK have exhibited increasing latitude in
allowing the admission of expert witness evidence of a psychiatric or psychological nature
which is not within the strict purview of mental abnormality.
In a broader context one case which holds particular relevance to the potential admission
of criminal profiling (or more specifically the subcomponent of analysing crime scene be-
haviours) arises out of R v Robb. In this matter psychological expert witness evidence was
admitted by the court which was based upon a corpus of scientific research pertaining to
people's capabilities to proficiently recognize voices. Moreover, the expert witness evi-
dence was formulated upon the findings of various studies which specifically tested and
thus scrutinized various participants' capabilities to accurately recognize differing voices.
A significant parameter to these studies was the incorporated methodology which ex-
plored via various points of comparison whether the participants' capabilities to profi-
ciently differentiate and thus recognize differing voices was better than chance.
The research methodology which underpins the expert witness evidence used in R v Robb
parallels that of the profiler validity research. Both the voice recognition research and the
profiler validity research by Kocsis (2003) incorporate extensive use of various control
groups. In the profiler validity research participants were used to gauge the degree of pro-
filing proficiency that could be achieved via attributes such as common knowledge, guess-
work and/or reliance on social stereotypical notions of what might characterize the typical
offender for the respective examined crimes. Significantly, these control groups not only
provided a baseline measurement for these attributes but also represented points of com-
parison whereby the relative performance of the various other skill based groups could al-
so be gauged.
When these similar design parameters and the findings of the profiler validity research
are collectively taken into account within the legal framework outlined by Folkes v
Chadd, R v Turner and, in particular R v Robb, there is scope to argue the feasible admissi-
bility of criminal profiling as well. That is, it can be first submitted that criminal profiling
reflects another form of psychiatric/psychological evidence which is not necessarily with-
in the area of mental abnormality. However, akin to the factors and legal principles
established within R v Robb, criminal profiling features a demonstrable complexity in that
it is beyond the purview of common knowledge and experience. That is, the validity re-
search demonstrates the capabilities of profilers to accurately analyse crime scenes (only
this discrete form of analysis would conceivably be viewed as possessing sufficient proba-
tive value) and their level of proficiency surpasses that of the numerous control groups.
Accordingly, akin to the factors and reasoning encountered within R v Robb, the profiler
validity research forms a basis for such analysis to be constituted as something of sufficient
complexity which is beyond common public knowledge and experience which, in turn,
can be considered of assistance to a court and on this basis argued as a potentially admis-
sible form of expert witness evidence.
59
U.S. Courts' task of evaluating the admissibility of expert evidence
(Faigman & Monahan, 2009). The process of this evaluation involves
consideration of the submitted evidence against various established
indicia including a recognized methodology that has been subject to
peer-review publication and whether the evidence is falsifiable with
error rates and the standards of control (Giannelli, 2006). However, as
noted by various authorities (e.g., Faigman & Monahan, 2009; Gilstrap
v State (1994); Myers, 2007; Redmayne, 2001; Simmons v State,
(2000); State v Armstrong (1991)) the arguable sine qua non amongst
these indicia is the ‘reliability’ of the tendered evidence.
Within this framework the legal principles specific to the evidentiary
admissibility of criminal profiling (or any variant form of behavioural
analysis) can be viewed as comprising broadly two dimensions. The
first concerns the more foundational issue of the legal standard by
which such evidence is evaluated whilst the second pertains to the
actual substance of the evidence. Whilst distinct from each other these
two dimensions must both be satisfied for admissibility and thus,
metaphorically, can be thought of as reflecting the alternate sides of a
coin. The principles to both dimensions are outlined below.
4.1. The legal standard
The seminal cases in United States case law demarcating the legal
standard by which criminal profiling or any variant form of behavioural
analysis may be admitted as expert witness evidence stem from State v
Fortin I and State v Fortin II (Bosco et al., 2010).12 In brief the Fortin cases
considered the submission of various forms of behavioural analysis
including the examination of commonalities exhibited in two separate
crime scenes that served as the basis for determining whether
the offences were perpetrated by the same offender. This evidence
was tendered by the prosecution and characterized as a form of
‘specialized knowledge’ derived from the witness's years of experience
in investigating and examining thousands of cases pertaining to violent
crimes of a similar nature. The defence opposed the admission of this
evidence on various grounds including inter alia that the ‘reliability’ of
the proffered expert evidence had not been established. Confronted by
these opposing positions the court reasoned that if other disciplines
that feature investigative applications of their techniques could develop
vast databases which empirically validated their practises then this
‘behavioural analysis’ (irrespective of the assigned label) of crime scenes
should be no exception and thus likewise subjected to scrutiny
analogous to that of any other form of ‘science’. On this matter the
court noted:
“...this analysis is not based on science, but based on his [i.e. the
expert witnesse's] training and experience. While not based on sci-
ence in the technical sense, his linkage analysis methodology is cer-
tainly founded in the area of behavioral science. We conclude that
the same detailed analysis regarding the admission of scientific
evidence is applicable and necessary...[emphasis added]. State v.
Fortin (I) (2000)
12
Prior to the Fortin cases whenever such evidence had been admitted it occurred when
at least one of the following circumstances had arguably occurred. The first was that the
tendered evidence was examined only via the doctrine of ‘General Acceptance’ and thus le-
gal reasoning derived from the earlier Frye test (e.g., Pennell v State (1991)). The second
circumstance arose when the tendered evidence was characterized and in turn evaluated
by the Courts as constituting a form of ‘specialized knowledge’ and thus not as a type of ‘sci-
entific’ evidence (e.g., Simmons v State (2000); United States v Meeks (1992)). The third cir-
cumstance occurred when, as argued by various legal scholars (e.g., Fradella, Fogarty, &
O'Neil, 2002; George, 2008; Myers, 2007; Nance, 2003; Risineger & Loop, 2002) the presid-
ing court failed to adequately examine the reliability of the tendered evidence (e.g., State
of Louisiana v. Code, 1993; State v Russell (1994)). In many respects the concepts that
emerge from State v Fortin I & II appear to be a form of redress for these latter two circum-
stances wherein higher courts have clearly demarcated both the standard by which such
evidence must be assessed (in terms of its legal characterization) and suggested a method
by which such an evaluation may be appropriately undertaken.
60 R.N. Kocsis, G.B. Palermo / International Journal of Law and Psychiatry 49 (2016) 55–65
This reasoning was elaborated upon in the subsequent appeal
decision wherein it was noted that:
“Surely if thousands of murder cases and hundreds of tests
performed on bodily fluids can be tabulated in a database, the basic
information for a database in this case can be compiled as well.”
State v Fortin II (2004, p. 590)
With this rationale the court in Fortin (I) admitted the expert
witness evidence on the proviso that the prosecution subsequently
provide the defence with a database which detailed the past cases that
were claimed to substantiate the witness's expertise. This stipulation
was intended to afford the defence an opportunity to undertake a
proper cross-examination of the expert witness's testimony and thus
facilitate an assessment of the reliability of the evidence. That is, the
defence could examine the expert witness's testimony relative to the
supplied database of past cases which formed the methodological
basis of the witness's analysis and contentions. Unfortunately, a database
of past cases that might substantiate the contentions of the expert wit-
ness was not supplied and thereafter the defence argued on appeal
that the basis (i.e. reliability) of the expert witness testimony had not
been satisfactorily established and therefore should not have been
admitted. This argument was accepted by the appeal court, which stated:
“We cannot agree with the trial court that [name withheld]
reference to his experience, training, and education was a substitute
for a database of cases or that the failure to provide such case
information only went to the weight to be given to his opinion,
rather than its admissibility. [Name withheld] testimony, although
presented as the application of criminal investigative analysis
techniques, was couched in the aura of science, more particularly,
behavioral science. State v. Fortin II (2004, p.586)
The legal reasoning of the Fortin cases highlight a simple yet effective
means whereby any form of behavioural analysis, irrespective of its label
or characterization13 could be matriculated and thus evaluated in a ‘scien-
tific’ manner. More importantly however, the Fortin case established, akin
to the arguments from numerous legal scholars and commentators
(e.g., Bosco et al., 2010; Faigman & Monahan, 2009; Freckelton & Selby,
2013; Myers, 2007; Risineger & Loop, 2002) that the indicia of reliability
for evaluating the admissibility of expert witness evidence could no lon-
ger be undertaken within any characterized framework of ‘specialized
knowledge’ but instead must be demonstrated via the standards incum-
bent to all forms of ‘scientific’ evidence.14
4.2. The probative substance
The other dimension and thus side to the metaphorical coin of
evidentiary admissibility pertains to the substance of the evidence. With
respect to this dimension the case law from the United States and other
nations is somewhat congruent. This consensus largely emanates from a
fundamental doctrine common to the laws of evidence in most western-
ized legal systems which require that the probative value of any tendered
13
For example, characterization as a form of specialized knowledge stemming from ipse
dixit claims of expertise owing to years of investigative experience.
14
The significance of the Fortin decision and the legal principles it encapsulates for eval-
uating the admissibility of criminal profiling as expert witness evidence is also highlighted
via the research undertaken by Gatowski et al. (2001). This study undertook a survey of
U.S. State Court judges and amongst its findings concluded that, inter alia, many of the
sampled judges did not possess sufficient scientific literacy to adequately perform the
‘gatekeeper’ function envisaged within the principles of the Daubert. Moreover, there also
appeared to be little consensus amongst the sampled judges concerning the relative im-
portance of the differing criteria encompassed under Daubert. In this context, the only dis-
cernible commonality in their interpretation of the principles inherent to Daubert was that
‘General Acceptance’ remained the core criterion upon which assessments of admissibility
were made. In the wake of this research and the aforementioned critical commentary sur-
rounding previous decision wherein criminal profiling had been admitted the Fortin case
makes a more ratified contribution to jurisprudence in outlining what are the requisite pa-
rameters by which the admissibility of criminal profiling ought to be assessed.
evidence outweigh any prejudicial impact it may also present (Davis &
Follette, 2002; Freckelton & Selby, 2013; Giannelli, 2006).
In light of this doctrine the evaluation of criminal profiling, when
presented in its conventional format, appears to be a relatively straight-
forward task for superior courts to consider and consistently reject
(Myers, 2007). The basis to these rebuffs being that the aforementioned
prejudicial impact of the evidence has always been determined to far
outweigh the probative value it may offer. Simply put, superior courts
have consistently and correctly recognized that the functional basis of
criminal profiling is one akin to a probability tool. That is, the technique
does not make an assessment of the precise offender but instead makes
predictions concerning the probable characteristics that the typical
offender will most likely possess. Accordingly, even at its hypothetical
zenith, wherein all fathomable shortcomings concerning the accuracy
of the predicted characteristics are eliminated, criminal profiling can
only inform a court about the attributes that the ‘type’ of offender may
or may not possess (Risineger & Loop, 2002). What criminal profiling
is incapable of validly determining is whether an accused party is the
precise individual responsible for the crime being tried before a court
due to their correspondence or otherwise with the predicted character-
istics. It is this definitive probative standard concerning the actual, as
opposed to the typical, which is inherent to Western common law
legal systems and to do otherwise would relegate courts and/or jurors to:
“...decide the facts based on typical and not the actual facts” State v.
Thomas (1981, p.521)
In the wake of these consistent rejections by the judiciary what
has transpired over time in the developing case law has been the submis-
sion of various forms of behavioural analysis which reflect derivations of
the analytic processes (i.e. sub-components) collectively encompassed
by the term ‘criminal profiling’ (Bosco et al., 2010; Kocsis, 2015). These de-
rivative forms of analysis have achieved a chequered degree of success in
being considered admissible expert witness evidence. The general ratio-
nale underpinning their acceptance appears to primarily stem from the
highly curtailed scope of the undertaken analysis as well as similarities
they exhibit with other forms of analysis which are already considered ac-
ceptable evidence.15 In this context the variant form of behavioural anal-
ysis that has enjoyed the greatest degree of success (in terms of being
considered admissible evidence particularly within North American case
law) is referred to as Crime Scene Analysis (e.g., Commonwealth v
DiStefano; Simmons v State; R. v Clark). The apparent reasoning behind
this acceptance relates to the heavily truncated parameters of the per-
formed analysis in only evaluating specific features (e.g., behaviours) of
the crime scene(s) in terms of modus operandi and thus what the crime
scene exhibits. The courts have reasoned that such curtailed analysis is
relevant, factually probative and analogous to other modes of expert
opinion which are routinely admitted into evidence. On this particular
point the Canadian judgement of R. v Ranger specifically noted:
“...an expert's opinion in an arson case that a fire was not accidental
but, rather, deliberately set; opinion evidence explaining the
significance of blood splatters; a pathologist's opinion about the
likely cause of death or of injuries observed on a deceased victim;
an expert's opinion on how a motor vehicle accident happened.
There are many more examples. This kind of evidence assists the
trier of fact in understanding WHAT the crime scene shows.”
R. v Ranger (2003, p.71).
In contrast, any suppositions beyond the evident features of the
crime scene, such as speculation concerning the characteristics of the
likely offender or motives for the offence, continue to be disallowed
(e.g., Commonwealth of Pennsylvania v. DiStefano (2000); R. v Ranger
(2003)).
15
It should be noted that the admissibility of these variants continue to be contested
(e.g., Bosco et al., 2010; Grezlak, 1999; Risineger & Loop, 2002; State v. Fortin (II), 2004).
 R.N. Kocsis, G.B. Palermo / International Journal of Law and Psychiatry 49 (2016) 55–65
As a consequence, when considering the probative substance of
criminal profiling in its traditional format the courts have commonly
rejected such material noting that:
“[The] use of psychological profiling as an aid to police investigations
is one thing, but its use as a means of proof in court is another...”
R. v Guilfoyle (2001, p.68).
Thus, in North American case law when considering the probative
substance of tendered expert witness evidence a narrow corridor has
emerged wherein the courts are prepared to entertain one highly
truncated derivation of the broader profiling technique referred to as
Crime Scene Analysis. However, the admission of such evidence has
always been premised on such analysis not exceeding the probative
boundaries of providing assessment of the facts of the crime scene(s)
which are specifically the subject of proceedings before the court.
5. Implications to evidentiary admissibility
In considering all of the previously canvassed material two factors,
albeit caveats, must be noted. The first concerns the perennial problem
that exists between the paradigms inherent to the discipline of law and
those of psychiatry and psychology. The incompatibilities in language
and concepts between these disciplines has been the topic of substantial
discourse over the decades with their attempted integration described
as analogous to fitting a square peg into a round hole (Shea, 1996).
Accordingly, whilst common terminology can be found amongst these
disciplines, their respective meanings can at times be quite disparate.
In this context, the concepts conveyed by the term ‘reliability’ in U.S.
case law pertaining to the admissibility of expert evidence are not
properly embodied in the meaning of ‘reliability’ in the context of
scientific research. Instead, the concepts which are the most congruent
with the legal notion of ‘reliability’ are actually those encompassed in
the methodological principles associated with the term ‘validity’
(Nance, 2003). Accordingly, when considering the legal concept of
‘reliability’ it is actually methodology and research pertaining to the
validity of a technique that is arguably the most congruent.
The second caveat is the original objectives of the profiler validity
research. That is, the studies were undertaken to evaluate the validity of
criminal profiling within the framework of its application as an investiga-
tive tool (Kocsis, 2013).The methodological designs of these studies never
anticipated or contemplated their relevance beyond the use of criminal
profiling as an aid to law enforcement operations. Accordingly, any bear-
ing the research may have to forensic issues such as the admissibility of
expert witness evidence are coincidental and as a consequence not within
the scope of its originally intended purpose. The consequence of this cir-
cumstance is that some gaps are apparent in how the research holistically
informs our understanding of the issues relevant to legal admissibility
and it is these gaps that will be considered in the conclusion.
With these points noted the first step in considering the implications
of the profiler validity research begins with its relevance to the legal
standard by which expert evidence in the nature of criminal profiling
or any variant thereof is typically evaluated by U.S. courts. To briefly
recap, the key doctrine governing this issue is found in the Fortin cases
where, in essence, it was determined that the required standard by
which criminal profiling or any variant technique should be assessed
was as a form of ‘scientific evidence’. Thereafter, the court formulated a
method whereby the submitted evidence could be assessed in a manner
consistent with this standard. However, integral to the legal reasoning
adopted in the Fortin case is the specific circumstance of the case and
in particular the characterization of the expert evidence as a form of ‘spe-
cialized knowledge’. That is, the evidence was not presented as a form of
scientific evidence which featured a scientific corpus of published peer-
reviewed research that might independently attest to its reliability. As
the submitted expert evidence neither claimed nor featured a suitable
scientific basis, the court devised a way wherein the reliability of the
61
evidence could nonetheless be matriculated into a form suitable for eval-
uation via the required scientific standard. Simply put, the assessment
procedure described in the Fortin case was conceived purely to act as a
substitute for scientific research that might have otherwise been avail-
able to demonstrate the reliability of the tendered expert evidence.
Consequently, the first key implication to evidentiary admissibility
arising from the profiler validity research is its very basis. That is, it
represents scientifically peer-reviewed and published16 research
which examines factors directly pertinent to the reliability of the
criminal profiling technique. Thus, the potential evaluation of expert
evidence via any cataloguing of past cases (such as that espoused in
the Fortin case) is in one context obviated if any tendered expert evi-
dence in the nature of criminal profiling is presented in a disciplinary
and methodological framework consistent with the design parameters
of the profiler validity research.
The second key implication to emerge from the profiler validity
research pertains to the legal substance and thus nature of the material
courts may permit into evidence. At this juncture the aforementioned
boundaries of the profiler validity research come to the fore as the
majority of the scales devised in the studies are concerned with measur-
ing the accuracy of predicted offender attributes (i.e. the typical as
opposed to the actual).17 However, one notable exception is apparent
that integrates with the evidentiary case law pertaining to ‘Crime
Scene Analysis’. Through no reason other than coincidence the question-
naire sub-scale within the profiler validity research labelled as ‘Offense
Behaviors’ empirically measures the proficiency of the sampled
participant's ability to correctly (i.e. validly) interpret the exhibited be-
haviours in the crime scenes and thus encapsulates the analytic task re-
ferred to as ‘Crime Scene Analysis’.
Accordingly, the profiler validity studies not only represent indepen-
dent, scientifically-grounded research that satisfies the required legal
standard (i.e., scientific evidence) for evidentiary admissibility but also
provides an evaluation of the functional task commonly referred to as
‘Crime Scene Analysis’, which is also considered to feature sufficient pro-
bative substance for potential admission. Thus, the ‘Offense Behavior’
sub-scale contained in Table 1 provides legal forums with independent,
scientifically-grounded research by which this mode of crime behav-
ioural analysis may be argued to be a reliably admissible form of
scientific expert witness evidence.
6. Serendipitous connections
In conjunction with the aforementioned implications surrounding
evidentiary admissibility, the profiler validity research also features a
number of serendipitous connections with other case law and research
in the area of criminal profiling. The significance of these connections is
particularly remarkable when it is noted that the research did not con-
template any ramifications beyond its original sphere in assessing valid-
ity within the operational context of law enforcement investigations.
To begin with Woskett, Coyle, and Lincoln (2007) surveyed various
legal practitioners' views concerning the use of criminal profiling. One
finding of this research was that if criminal profiling was used in some
evidentiary capacity, then the professionals who were considered best
placed to offer such expert testimony would either be forensic psychol-
ogists or forensic psychiatrists. Although not explicitly stated, the same
general sentiment also appears to be conveyed in the judicial reasoning
16
Although not explicitly canvassed in the present manuscript it should nonetheless be
noted that another important dimension to the profiler validity studies is their publication
via scholarly/scientific peer-reviewed journals. This mode of publication not only attests to
the merits of the research but is also another key element incumbent to the original prin-
ciples espoused in Daubert v. Merrell Dow Pharmaceuticals Inc. (1993) concerning the as-
sessment of admissible expert evidence.
17
Irrespective of the methodological rigour of these studies they are, with one notable ex-
ception, of little use when considered within the forensic context of evidentiary admissibility
as the incorporated scales largely assess performance on analytic tasks which in the context
of evidentiary admissibility would be excluded on the basis of lacking probative force.
62 R.N. Kocsis, G.B. Palermo / International Journal of Law and Psychiatry 49 (2016) 55–65
found in numerous cases considering the admissibility of criminal profil-
ing generally. In the pre-Fortin decision of People v Schmidt (2002) the
court reasoned that the evidence provided by a law enforcement officer
could be accepted on the basis that it paralleled the evidence which two
psychologists had previously provided. In Simmons v State (1999) testi-
mony from a law enforcement officer was admitted on the basis that it
was considered probative and an acceptable form of ‘specialized knowl-
edge’. In addition to this evidence, testimony from a forensic psychologist
was also admitted. However, the admission of the psychologist's evi-
dence was on the basis that it constituted acceptable ‘scientific’ evidence.
Although the psychologist's evidence did focus upon issues surrounding
the offender's mental state, the evidence was, in part, also based upon
analysis of the exhibited crime scene behaviours. Whilst this evidence
was derived from the psychologist's analysis of the crime scene behav-
iours it was not subject to substantial disputation or judicial deliberation
upon appeal unlike the testimony of the law enforcement officer.
These examples collectively appear to reflect a tacit consensus
amongst some in the legal community that the disciplinary foundations
considered best placed to provide expert witness evidence in the nature
of criminal profiling will stem from suitably qualified forensic psychia-
trists or forensic psychologists.18 With this in mind it is therefore signif-
icant to note that one of the most consistent findings to emerge across
the various profiler validity experiments was the proficient performance
of the profilers (sampled from senior forensic psychiatrists/forensic psy-
chologists), followed by (generalist) psychologists in comparison to all
other groups (Kocsis, 2003, 2013). Thus, the profiler validity studies in-
dependently provide congruent research evidence supportive of the
legal community's seeming predilection concerning the professional
basis of potential expert witnesses in the area of criminal profiling.
Another significant connection arising from the profiler validity
research pertains to arguments against the admission of criminal profil-
ing as expert witness evidence. In this context, George (2008) raises a
number of ardent criticisms for the entire abolition of criminal profiling
or any derivative in legal forums.19 In summary, George (2008) argues
that a number of troubling inequities exist in the availability of indepen-
dent expert witnesses who may be prepared to not only act on the
behalf of the prosecution but also for the defence.20 In view of these
18
Whilst this may seem self-evident in the wake of the historical lineage of criminal profil-
ing (e.g., Brussel, 1968; Langer, 1972; Shoenfeld, 1936) scientifically grounded examinations
of properly qualified experts who legitimately possess the full gamut of requisite skills for the
proficient (i.e. accurate) practise of the technique has been sorely lacking in the scholarly
peer-reviewed literature (e.g., Kocsis, 2013, 2015). The significance of this point is highlight-
ed when it is kept in mind that members of the law enforcement community acknowledge
that their original endeavours in developing criminal profiling were inspired and reflect em-
ulations of the disciplinary paradigms and practises commonly rooted in the mental health
sciences (e.g., DeNevi & Campbell, 2003; Ressler & Shachtman, 1992). As one example, the
development of the Crime Classification Manual by the FBI Behavioral Sciences Unit is collo-
quially referred to as the ‘DSM’ for crimes (Douglas et al., 1992). Similarly, with respect to
the actual practise of profiling Douglas et al. (1986, p. 405) state that: “The process used by
an investigative profiler in developing a criminal profile is quite similar to that used by clini-
cians to make a diagnosis and treatment plan: data are collected and assessed, the situation
reconstructed, hypotheses formulated, a profile developed and tested and the results report-
ed back.”
19
It is argued by George (2008) that implacable biases, undue influence and conflicts of
interest pervade the pool of available expert witnesses who predominantly originate from
law enforcement and thus “disciplines that are created for the sole purpose of investigat-
ing or prosecuting crimes” (George, 2008, p. 221).
20
The basis to George's (2008) concerns is not without foundation when it is accepted that
they essentially reflect a permutation of more fundamental problems surrounding the admis-
sibility of expert evidence and in particular the legal principle of General Acceptance. In this
broader framework Faigman and Monahan (2009) indicate that most forms of expert evi-
dence which are sourced from witnesses who originate from the law enforcement commu-
nity will be prone to such troubles and note that: “...the use of widespread or general
acceptance as a criterion of validity depends on the quality of the field from which the find-
ings come. Unlike the testing and error-rate factors, general acceptance is merely a proxy for
validity and is only as good as those doing the accepting and rejecting. The biggest danger as-
sociated with this factor from the law's standpoint is that consensus might replace critical as-
sessment. This has largely occurred, for example, in the forensic specialities, such as bitemark
and handwriting identification analysis, where the main community involved is law enforce-
ment and dissent is strongly frowned upon.” Faigman and Monahan (2009, p.14).
issues the implications arising out of the profiler validity research
provide an avenue to potentially counteract the criticisms discussed
by George (2008). That is, the profiler validity experiments provide sup-
port for the use of suitably qualified mental health professionals and
thus could feasibly expand the pool of potential expert witnesses who
are not derived from the law enforcement community, thus neutralizing
the concerns raised by George (2008).
A third notable connection arising from the profiler validity research
again stems from criticisms concerning the forensic use of criminal pro-
filing. In this context, Ebiskike (2008) argues that another factor poten-
tially obstructing the evidentiary admissibility of criminal profiling is
the conceptually fragmented nature of the field. That is, there exist sever-
al theoretically diverse approaches to criminal profiling that collectively
feature little consensus and numerous strident debates (Kocsis, 2013,
2015). In essence Ebiskike (2008) highlights that when subjected to suf-
ficient critical examination criminal profiling or any derivative technique
may not even satisfy the tenets incumbent to General Acceptance (i.e. Frye
v United States (1923)) for it to be admissible expert evidence.
Once again, the profiler validity research holds a serendipitous
connection with these arguments. As already explained, the validity
research independently substantiates the apparent preconception
found within the legal community concerning the disciplinary profes-
sion from which suitable experts may originate. However, the logical
extension of these same concepts also provides a coherent disciplinary
basis which can potentially satisfy the parameters of General Acceptance
and thus counteract the arguments raised by Ebiskike (2008). That is, the
results demonstrating proficient profiling capabilities in the various pro-
filer validity studies originate from a sample pool which is collectively
characterized by qualified mental health professionals.21 Simply put,
the sampled profiler participants exhibit a coherent, commonly-accepted
disciplinary foundation to their proficiency sourced in all likelihood in
the regulated educational and training parameters they share in order
to formally practise as either a psychologist or psychiatrist.22 Thus, the
21
A significant dimension of irony surrounds this circumstance as, despite the decades of
development concerning the topic of criminal profiling, this serendipitous intersection es-
sentially demonstrates what is considered to be the oldest coherent form of the criminal
profiling technique referred to as ‘Diagnostic Evaluations’ wherein qualified mental health
practitioners rely upon their clinical training for the purpose of interpreting and profiling
crimes (e.g.,Wilson et al., 1997).
22
Within this connection are a number of ancillary points. The first pertains to the legal
notion of ‘usefulness’ to evidentiary admissibility and thus the benefits any submitted evi-
dence may supply “to furnish the Court with ...information which is likely to be outside
the experience and knowledge of a judge or jury” (Turner, 1975). The implications stem-
ming from profiler validity research incorporates two facets of this issue. One is that the
studies not only feature comparative measurements of performance across the various skill
based groups but also feature extensive use of controls. These various measurements collec-
tively serve to illustrate that the proficiency of the profilers is superior and thus can be con-
sidered to be useful as they have been empirically demonstrated to be beyond the
repertoire of skills and knowledge of typical courtroom participants such as jurors. The oth-
er facet is the recognized generic status of mental health professionals such as psychiatrists
and psychologists who via the established basis of their qualifications are considered to pos-
sess suitable expertise within this domain which can traditionally satisfy the evidentiary lit-
mus test of usefulness for potential admissibility. A second ancillary point is the established
impartiality of the qualification of individuals who may operate as psychologists or psychi-
atrists. That is, westernized nations feature independent government controlled regulatory
authorities which have legislated oversight for the educational regimentation and supervi-
sion of individuals who can lawfully operate in these professions. These authorities do not
possess any vested interest in the development or practise of the criminal profiling tech-
nique. This circumstance is significant as it is in contrast to a number of societies and asso-
ciations that have arisen which promote accreditation in criminal profiling and thus may be
erroneously perceived as a governing authority of individuals who may engage in the tech-
nique. Within the context of legal admissibility it has been suggested that such guilds may
suffer from various conflicts of interest as well as a lack of independent validation of the pro-
moted accreditation of their affiliates in comparison to other professionals who may not
hold such memberships and advocate an alternative conceptual approach to profiling
(e.g., George, 2008). These concerns are largely obviated within the divested environment
of professional regulation for psychologists or psychiatrists. That is, the regulatory authori-
ties for psychiatry and psychology simply govern the core educational and training for these
professions and it is these fundamental skills which underlie the proficient profiling empir-
ically demonstrated thus far in the various profiler validity studies in the performance of
both the sampled profilers and psychologists.
 R.N. Kocsis, G.B. Palermo / International Journal of Law and Psychiatry 49 (2016) 55–65
profiler validity research potentially also provides a solution to allay the
concerns raised by Ebiskike (2008).
7. Conclusion
This article has sought to provide a succinct analysis of the scientific
research examining the validity of criminal profiling in conjunction with
the extant case law and legal principles surrounding its potential admis-
sibility as expert witness evidence. To this effect, five broad topics were
canvassed starting with an explanation of the various types of material
which are not sufficiently robust for the purpose of demonstrating
validity in criminal profiling. The second section then provided a brief
exposition of the scientifically-grounded experiments that do provide
support for the validity of criminal profiling. Thereafter, the third
section explored the evolution of the case law and thus the legal
substance and standards upon which expert witness evidence such as
criminal profiling might be admitted. In the wake of this material the
fourth topic considered what implications the findings of the profiler
validity research might have for evidentiary admissibility. The fifth
and final component considered a number of serendipitous connections
between the aforementioned material and other issues concerning the
practise of criminal profiling. These connections serve to highlight a
number of factors pertaining to the qualifications and skill basis of
individuals who may be able to offer expert witness evidence
concerning the technique.
In presenting this analysis it is important to appreciate that a non-
partisan standpoint was adopted in the production of this article.
Accordingly, the presented material is neither intended to expressly
advocate for the admission of criminal profiling as expert witness
evidence in legal proceedings (e.g., Cochran, 1999; Ingram, 1998) nor
act as arguments for its prohibition (e.g., George, 2008; Risineger &
Loop, 2002). Instead, as indicated at the outset the key objective of
this article is to provide a previously unavailable integration of the
research into profiler validity and its implications for legal admissibility.
Whilst the ultimate finding is supportive of one discrete avenue where-
by expert evidence in the nature of criminal profiling (i.e., the analysis of
crime scene behaviours) may be admitted, it is important to balance this
conclusion with some consideration of the boundaries of the research
and thus its potential limitations for evidentiary admissibility.
First, it should be noted that whilst there exists scientifically-
grounded research which has found evidence supporting the validity
of criminal profiling, the production of such studies have occurred at
an extraordinarily tardy rate (Kocsis, 2013). Consequently, further
research in this vein is still warranted and caution should be exercised
when considering the extent to which the research can be externalized
into practise (Kocsis, 2015). Secondly, in the context of the existing
research one key limitation of the profiler validity research is its
inability to provide some indication of the likely error rates inherent
to the analysis as conceptualized under the criteria for admissibility in
Daubert v. Merrell Dow Pharmaceuticals Inc. (1993).23 This circumstance
is an artefact of the employed quasi-experimental procedures and argu-
ably reflects an acceptable limitation in lieu of the methodological
23
Although the quasi-experimental designs incorporated in the various profiler validity
studies do not facilitate error rates as conceived within the evaluative parameters outlined
in Daubert this deficit is not necessarily an irreconcilable limitation. For example, the de-
cision of United States v Plaza (2002) illustrates that US Courts may entertain the admission
of expert witness evidence even when such evidence may not be premised on a falsifiable
theory provided it nonetheless possesses general acceptance within the sphere of its pro-
fessional community. As indicated at the outset of this manuscript and Endnote (1) the
technique and practises collectively and colloquially referred to as criminal profiling have
achieved considerable professional recognition in most countries throughout the world
and the topic is now considered to reflect another component within the disciplinary pa-
rameters of mainstream forensic psychology (Kapardis, 2014). Accordingly, this contem-
porary professional recognition in conjunction with principles highlighted by US v Plaza
provides further scope in potentially considering the admissibility of criminal profiling
(more specifically crime scene analysis) notwithstanding the absence of such error rates.
63
strengths the research design provides when empirically assessing
the validity of criminal profiling (Kocsis, 2013, 2015). As previously
mentioned, pure experimental designs which test profiling accuracy
(i.e. validity) are not feasible. Additionally, the equally weighted
quantification of questionnaire items which would act as the basis
for measurement would also represent a logistically prohibitive
dimension.24
With these parameters in mind it is important to conclude by
highlighting three further issues. Firstly, the presented analysis only
pertains to the currently available research evidence that scientifically
seeks to investigate the validity of criminal profiling. In this respect,
the findings concerning the sampled profilers and arguments
concerning their legal admissibility pertain to forensic mental health
professionals such as forensic psychiatrists and forensic psychologists
only. However, this aspect of the undertaken research should not be
interpreted as a basis for discounting the potential capabilities of other
professionals who do not possess such formal disciplinary qualifica-
tions, training and regulation. The formulation of the research is only
contributory in nature and provides some evidence to substantiate the
capabilities of the sampled participants to proficiently engage in the
task of criminal profiling. Accordingly, the parameters of the research
do not imply that the absence of such attributes will necessarily or
automatically equate with a lack of proficiency.25
Flowing from this point, the second and third issues pertain to what
can be conceived as boundaries to any expert witness and testimony
provided. In this context, it is important to first draw attention to not
only the qualifications but also the particular area of specialization
that any potential expert witness may possess. Whilst this article
supports one potential avenue for the admission of expert witness
evidence, this does not serve to universally justify the admissibility of
all qualified mental health professionals or even all qualified forensic
psychiatrists and forensic psychologists. One notable finding to emerge
from the original profiler validity research was a high degree of statisti-
cal variance amongst the capabilities of the sampled profilers (Kocsis,
2003). Simply put, the capabilities of some ‘profilers’ were far better
than others. Accordingly, it is important to ensure that the qualifications
and skill basis of any potential witness is indeed borne out in their par-
ticular area of specialization and practise.
The final boundary issue concerns a warning to judicial members
presiding over any case as well as opposing counsel to exercise vigilance
when such evidence is sought to be submitted. Once again, whilst this
article provides support for a way in which such evidence may be
admitted, it is imperative that the specific content of any proffered
testimony does not extend beyond the scope of the demonstrable scien-
tific evidence. In reviewing the case law surrounding the evidentiary
24
It is important to note that the results of the profiler validity studies are not amenable
to conversion to alternative statistics such as percentages wherein accuracy ratios with er-
ror margins could be potentially discerned. Some erroneous interpretations of these re-
search findings have been previously undertaken which are invalid representations of
the research data as they fail to recognize and thus account for the numerous individual
items in the questionnaires which are not equally weighted (Kocsis, 2013). Thus, the rel-
ative probabilities as well as conceptual difficulty of items can vary considerably. As a sim-
ple illustration of these issues responses to the questionnaire item seeking a prediction of
an offender's gender can only feasibly feature two options. In contrast, predictions of an
offender's religious belief featured nine possible responses. Consequently, future research
seeking to investigate the concept of error-rates will need to explore a methodological de-
sign which maintains the methodological advantages of the present research, features a
robust protocol that can validly feature equal weighting to the presented response items
while simultaneously not representing a logistically prohibitive task to administer. This
last point is a significant factor in accounting for the limited production of research scien-
tifically examining profiler validity to date (see Kocsis, 2015).
25
Accordingly, the paucity of analogous research examining other skilled based profes-
sionals should not necessarily be construed as a basis to dismiss the potential merits of
other professionals. The current circumstance should be understood as scientific evidence
in support of the proficiency of individuals with forensic psychiatric/psychological qualifi-
cations to engage in the task of criminal profiling. The capabilities of other skilled based
professionals operating in this same capacity are thus far undemonstrated and the reader
should appreciate the conceptual distinctions between undemonstrated versus disproven.
64 R.N. Kocsis, G.B. Palermo / International Journal of Law and Psychiatry 49 (2016) 55–65
admissibility of criminal profiling it is apparent that there exists at times
an almost irresistible tendency for expert witnesses to stray into error
by providing testimony beyond the scope of their remit (e.g., R. v
Hillier (2003)). If expert witness evidence of this nature is admitted
based upon the findings and arguments analogous to that outlined in
this article, then it is important to ensure that the scope of such admis-
sion does not exceed the boundaries of what the available research can
demonstrate and that it also reflects a largely-accepted degree of
reasonableness that is shared by all, including judicial members.
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