Profiles, syndromes, and the Rule 405 problem: addressing a form of disguised character under the Federal Rules of Evidence.

• Author: Claus, Michael D.

INTRODUCTION

Imagine that after years of meticulous research, a team of doctors, scientists, and criminologists publish a study of convicted murderers. The team has concluded that the vast majority of murderers have certain traits in common. They include personality traits--such as aggression, and environmental traits--such as access to a weapon, and abusive parents. The team of experts further declares that these traits so frequently reoccur among convicted murderers, they can predict with confidence that an aggressive person with access to a weapon and abusive parents is significantly more likely to murder than the rest of the population. The study receives universal acclaim within the scientific community and is immediately included in every respected treatise on the subject. Prosecutors throughout the country are eager to bring a homicide case to trial and try out the new "Convicted Murderer Profile." Trial judges, meanwhile, struggle with the question: to what extent should this evidence be admissible against a defendant who "fits the profile"?

Profile and syndrome evidence shows a correlation between certain traits or characteristics and particular forms of behavior. (1) After compiling data from numerous cases, experts then attempt to "construct a diagnostic or predictive 'profile' for such behavior." (2) Profile and syndrome evidence invites the inference that individuals who fit a profile or possess a syndrome are likely to have acted in a certain way.

Courts differ greatly in their attempts to define whether profile and syndrome evidence should be admissible, and if so, under what theory of evidence. (3) The Federal Rules of Evidence liberally admit any relevant evidence, unless the Constitution, a statute, or a different rule directs otherwise. (4) "Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence." (5) Intuitively, most people would likely accept a "Convicted Murderer Profile" as at least moderately predictive of behavior, satisfying the "any tendency" standard of Rule 401. Furthermore, the universal recognition in the scientific community of the Profile would satisfy Federal Rules 702 (6) and 703, (7) governing expert testimony. Meeting these standards, the majority of jurisdictions today would conclude by examining the evidence under Rule 403, (8) and admit the "Convicted Murderer Profile" if the court determined that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. (9)

However, other Federal Rules lurk in the background to complicate the inquiry. First, Rule 404's prohibition against using character evidence to prove conduct seeks to limit the jury from drawing the inference that character traits and past conduct predict present behavior. (10) Even an entirely accurate "Convicted Murderer Profile" raises serious concerns that the defendant will not receive a fair trial. The Convicted Murderer Profile invites the jury to conclude that because this defendant fits the profile, he or she is more likely to have committed the crime. Rule 404 seeks to prevent the jury from drawing precisely this "forbidden inference."

Rule 404(a)(1) declares that "[e]vidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait." If one defines fitting a profile or possessing a syndrome (11) as "character" or a "character trait," (12) the Rule should operate to exclude the evidence, unless an exception to Rule 404 applies.

When dealing with profile and syndrome evidence, the majority of jurisdictions attempt to mitigate Rule 404 concerns by restricting the admissibility of such evidence as proof of substantive guilt, while generally allowing it for other purposes, such as explaining conduct. (13) That is, courts focus exclusively on the purpose of the evidence, rather than generally prohibiting it because of the forbidden inference it invites. Under the majority view, the "Convicted Murderer Profile" would probably be excluded to prove the defendant's guilt. (14) However, expert testimony regarding other forms of profile and syndrome evidence which invite an inference about an alleged victim's behavior are routinely admitted in trial courts. For instance, Rape Trauma Syndrome (15) evidence--suggesting that, because many rape victims delay reporting an assault, the alleged victim in this case probably delayed--is often found admissible. By ignoring the forbidden inference and focusing solely on the purpose for which the evidence is offered, courts admit disguised character evidence through expert witnesses.

This Note argues that the prohibition against character evidence should be promoted from the background of the trial court's analysis of profiles and syndromes to the forefront. The better approach is to acknowledge that such evidence invites the forbidden inference, and determine its admissibility accordingly. Doing so requires the trial court to consider Rule 404 and its exceptions. Such analysis may well lead to admission of the evidence. I do not seek to argue normatively whether profile and syndrome evidence is valuable or unduly prejudicial. (16) I do maintain, however, that such evidence raises an inference which is generally prohibited under the Federal Rules of Evidence, (17) and should be analyzed accordingly.

That said, the existing framework of the Federal Rules is ill-equipped to handle profile and syndrome evidence. Rule 405 provides the acceptable methods of proving character when an exception to the general prohibition applies. It directs that in the rare instances when character evidence is admissible, "it may be proved by testimony about the person's reputation or by testimony in the form of an opinion." (18) Rule 405 seems to envision character evidence in the form of opinion and reputation testimony provided by a lay character witness. However, profile and syndrome evidence is presented by expert witnesses. (19) I have termed this anomaly the "Rule 405 problem."

The Rule 405 problem can be summarized as follows:

(1) Profile and syndrome evidence is presented by expert witnesses.

(2) Profile and syndrome evidence raises a character inference.

(3) Character evidence must be presented by lay witnesses.

Thus, while profile and syndrome evidence may be authorized by the exceptions of Rule 404, such as when a criminal defendant offers evidence of his own character trait, there is no proper method to introduce it under Rule 405.

In Part I of this Note, I discuss some common and controversial profiles and syndromes introduced in trial courts across the country. (20) After briefly outlining the standards governing the prohibition of character evidence in Part II, I then introduce the Rule 405 problem. Part III examines the various approaches among federal and state courts in analyzing profile and syndrome evidence. Finally, in Part IV, I offer some potential solutions to the vexing problem of how to properly introduce profile and syndrome evidence under the existing framework of the Federal Rules.

Disguised character evidence should not be admissible simply because it is presented by an expert. By ignoring the character inference that profile and syndrome evidence invites, courts are able to bypass the general restrictions of Rule 404 and the methodology problems of Rule 405. While perhaps convenient, this Note argues that the prevailing practice diminishes the prohibition against character evidence. Ideally, a new rule would directly address profile and syndrome evidence and provide acceptable methods of presenting it. At the very least, courts should reexamine their approach to profile and syndrome evidence under the current Rules to ensure that character evidence is presented only when truly authorized.

1. PROFILES AND SYNDROMES

   Psychologists and other experts have developed numerous profiles and syndromes varying considerably in subject matter. Each profile presupposes, first, that a profile of characteristics or traits can be constructed based on a collection of data, and secondly, that the profile can be used to predict behavior. (21) The use of some syndrome evidence, such as the Battered Woman Syndrome, has become commonplace at trial. (22) Such evidence is often used to explain a defendant, victim, or witness's behavior. (23) More problematic, at least in a majority of jurisdictions, are profiles and syndromes that focus on the probable guilt or innocence of a criminal defendant. This evidence "consists of a compilation of otherwise innocent characteristics, coupled with an implicit invitation to infer criminal conduct from those characteristics." (24) For many courts, evidence offered for this purpose is too prejudicial to admit against the defendant. (25)

   A full examination of every profile and syndrome that has been introduced in American courts is not feasible. Instead, five of the most common or controversial forms of such evidence are briefly summarized below.

   A. Battered Woman Syndrome

   Battered Woman Syndrome evidence is generally offered by female criminal defendants to explain violent acts, often in conjunction with a self-defense argument. (26) Women who kill their husbands or partners maintain they have been driven to such dire acts by extended periods--even years and decades--of physical and psychological abuse. (27) Furthermore, defendants use Battered Woman Syndrome evidence to explain their failure to leave an abusive relationship or other behavior which otherwise may seem irrational to a jury. (28) Such evidence is not typically used to suggest the guilt or innocence of the woman. Instead, it is used to bolster a self-defense argument or explain otherwise irrational behavior. (29)

   According to Battered Woman Syndrome studies, a pattern can be seen throughout abusive relationships. (30) The relationships between female victims and their...