Clothes Don’t Maketh the Man Nor a Criminal Profiler an Expert Witness

AuthorRichard N. Kocsis,George B. Palermo
Published date01 September 2020
DOI10.1177/0306624X20909218
Date01 September 2020
Subject MatterArticles
https://doi.org/10.1177/0306624X20909218
International Journal of
Offender Therapy and
Comparative Criminology
2020, Vol. 64(12) 1317 –1340
© The Author(s) 2020
Article reuse guidelines:
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DOI: 10.1177/0306624X20909218
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Article
Clothes Don’t Maketh the Man
Nor a Criminal Profiler an
Expert Witness
Richard N. Kocsis1 and George B. Palermo2
Abstract
The article by Kocsis and Palermo, published in 2016, examined the findings of
research which had assessed the validity of the investigative technique colloquially
known as criminal profiling. These findings were subsequently considered within
the framework of their relevance to the admissibility of the technique as a form
of expert witness evidence. The overall conclusion was that a discrete facet of the
profiling technique may satisfy some of the requisite legal criteria for admissibility
in jurisdictions within the United States. However, this conclusion was based upon
studies which used samples of senior forensic psychiatrists and psychologists as the
tested profilers. In this regard, it was noted that this parameter may preclude the
generalization of this conclusion to other professional groups who do not possess such
qualifications. Accordingly, the present article explores the potential admissibility of
law enforcement personnel who are not qualified forensic mental health practitioners
tendering expert witness evidence in the nature of criminal profiling. The conclusion
of this analysis is that law enforcement personnel who possess suitable expertise in
the analytic task of criminal profiling arguably possess an analogous knowledge base
akin to the aforementioned senior forensic psychiatrists and psychologists. On this
basis, the conclusions in Kocsis and Palermo, published in 2016, may extend to such
personnel and their potential to likewise provide expert witness evidence.
Keywords
criminal, profiling, offender profiling, criminal investigative analysis, crime scene
analysis, expert witness evidence
1James Cook University, Queensland, Australia
2Center for Forensic Psychiatry and Risk Assessment, Milwaukee, Wisconsin, USA
This author is now deceased.
Corresponding Author:
Richard N. Kocsis, James Cook University, Queensland, Australia.
Email: DrRKocsis@hotmail.com
909218IJOXXX10.1177/0306624X20909218International Journal of Offender Therapy and Comparative CriminologyKocsis and Palermo
research-article2020
1318 International Journal of Offender Therapy and Comparative Criminology 64(12)
Introduction
Criminal profiling is a colloquial term which nonetheless enjoys wide recognition in
describing the technique of analyzing behavior patterns evident in a crime or series of
crimes (Kocsis, 2018). The purpose of this analysis is typically the identification of
various characteristics concerning the probable offender(s) which may, in turn, assist
law enforcement investigators with the apprehension of said offender(s) (Hazelwood
& Burgess, 2017). Although generic examples of the technique can be found through-
out chronicled history (e.g., Brussel, 1968; Langer, 1972; Rumbelow, 1988; Shoenfeld,
1936; Judges 7:2-7, Old Testament; Woodruff, 2006), coherent development and
wide-spread use of criminal profiling has predominantly occurred over the past four
decades (Ault & Reese, 1980; Fox & Farrington, 2018; Kocsis, 2015). Two features
inherent to this development have been increased specialization in some of the sub-
components of the technique (e.g., Rossmo, 2000) and diversified applications of the
technique (e.g., Hazelwood et al., 1982). Perhaps one of the most notable examples of
this diversification has been a transition in the fundamental conceptualization of the
technique. That is, from an analytic tool intended to assist in the context of police
investigations to a form of expert witness evidence tendered in legal proceedings (e.g.
Ebiskike, 2008; Ormerod, 1999).
The jurisprudential consideration of criminal profiling as a form of expert witness
evidence has, over time, traversed a somewhat circuitous path. The initial position
adopted by most Western law jurisdictions has been the unilateral rejection of the
technique as admissible evidence (Freckelton & Selby, 2013; Myer, 2007). The rea-
soning for such determinations stem from recognition by the courts of the inherently
probabilistic nature of criminal profiling (e.g., State v. Thomas; R. v. Guilfoyle). That
is, the fundamental incompatibility of the technique with common legal doctrine that
requires tenable evidence of a substantive probative basis which outweighs any con-
comitant prejudicial impact1 (Giannelli, 2006; Heydon, 2013; Ormerod, 1999).
Forthright rejections by courts led to a metaphorical rallying in endeavors to refor-
mulate the technique in the hope that it might achieve admission in some alternative
evidentiary capacity. The most successful of these reformulations involved the heavily
curtailed interpretation of behavior patterns in crime scenes which were a specific part
of the matter before the court. As such, this mode of analysis (described as “Crime
Scene Analysis”) excludes any inference about the characteristics of the probable
offender(s) to the crime. Evidence tendered in this manner achieved a limited degree
of success in some jurisdictions as it was considered to be similar to other forms of
admissible crime analysis such as, for example, the evaluation of crash sites in motor
vehicle accidents (e.g., Aycock, 2015; Freckelton & Selby, 2013; R. v. Ranger).
Many of these concepts also prevailed in the United States,2 but evaluation of the
admissibility of criminal profiling in this particular domain was also guided by the
seminal legal doctrines expounded in Frye v. United States, General Electric
Company v. Joiner, and most notably Daubert v. Merrell Dow Pharmaceuticals Inc.
(Bosco et al., 2010; Ebiskike, 2008; Myer, 2007). As a consequence, in some courts
in the United States, tendered evidence of a criminal profiling nature initially enjoyed

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