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Brent E. Turvey, M.S.
"The Role of Criminal Profiling in the Development of Trial Strategy"
Turvey, B., "The Role of Criminal Profiling in the Development of Trial Strategy," Knowledge Solutions Library, November, 1997, Electronic Publication, URL: http://www.corpus-delicti.com/Trial_Strategy.html
Turvey, B., "The Role of Criminal Profiling in the Development of Trial Strategy," Forensic Medicine Sourcebook, (Omnigraphics, 1998)
Note: Brent E. Turvey, MS is a full partner of Knowledge
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In 1972, the FBI's newly formed Behavioral Science Unit developed and propagated some of the earliest psychological profiling techniques and training, which were first taught to students at the FBI National Academy by SA Howard Teten and SA Pat Mullany. They espoused the idea that constructing a criminal profile from the physical evidence in an unsolved case could effectively aid in the process of suspect development, and investigative strategy. The past three decades have been a continual exercise in demonstrating that they were right.
The Crime Classification Manual, developed by the FBI's National Center for the Analysis of Violent Crime, describes the ideal process of developing a criminal profile, which it terms criminal investigative analysis:
"The FBI defines criminal investigative analysis as an investigative process that identifies the major personality and behavioral characteristics of the offender based on the crimes he or she has committed
- Evaluation of the criminal act itself
- Comprehensive evaluation of the specifics of the crime scene(s)
- Comprehensive analysis of the victim
- Evaluation of preliminary police reports
- Evaluation of the medical examiner's autopsy protocol
- Development of the profile, with critical offender characteristics
- Investigative suggestions predicated on the construction of the profile"
As mentioned, this concept is an ideal, and one that most modern day profilers fall woefully short of in actual practice. In fact, most of those who call themselves criminal profilers have all but abandoned the above deductive tenants in favor of statistical databasing from which inductive profiles are generated. The reason behind this shift seems to be the reality that most modern day investigators are not adequately trained to evaluate forensic evidence of any kind, and therefore are not prepared to engage the above steps . It should be mentioned that this author does not advocate or even recommend the use of inductive profiles in criminal or non-criminal investigations for suspect development.
Work done by Hazelwood et al , takes the FBI's concept of criminal investigative analysis to the next logical level, in terms of applying the information developed in the profile to courtroom proceedings. Hazelwood et al  demonstrates how a criminal profile can be used to help develop trial strategy. They  defines a criminal profile as " the characteristics and traits of an unidentified offender that differentiate him from the general population. These characteristics are set forth in such a manner as to allow those who know and/or associate with the offender to readily recognize him." They further define trial strategy in a general fashion as " analyzing a case to provide attorneys with recommendations to the strengths and weaknesses of the opposition's case, cross-examination techniques, and expert witnesses."
There is some agreement in the literature regarding the types of cases which can benefit the most from the profiling process (, , ). The Crime Classification Manual  specifically addresses the crimes of murder, arson, and rape/sexual assault because they represent the most serious types of interpersonally violent criminal behavior. However, it has been demonstrated that cases which have benefited from the profiling process can include just about any case where the forensic evidence or crime scene presentation indicates mental, emotional, or personality aberrations (, ).
The purpose of this paper, then, is to discuss the profiling process, and how it directly lends itself to the development of trial strategy. Specifically, it will address how the criminal profiling process can help attorneys understand the nature and quality of the forensic evidence in a case, offender fantasy behavior and/or motivation, offender state of mind during the commission of the crime, and help link cases by illuminating offender patterns in terms of Modus Operandi (MO) and signature behavior.
Many agencies who request a criminal profile, whether they are law enforcement agencies, prosecutorial bodies, or defense attorneys of any kind, are unified by a misperception that the profiling process will somehow answer specific questions about criminal behavior while circumventing the work required to analyze the often complex physical evidence in a particular case (there are a number of people calling themselves profilers who think this way, too, just to add to the confusion). This is not surprising at all, given that most criminal cases do not involve the use of physical evidence of any kind, and, even when available, physical evidence is seldom seen by anyone involved as having any intrinsic value. In fact, a literature review conducted by Horvath and Meesig  determined that physical evidence is used in less than 25% of the cases prosecuted in the United States, with the percentage in some regions dipping to less than 5%.
As stated, the notion that physical evidence does not have intrinsic value is a popular misperception, but not one shared by the criminal profiler. For the competent profiler, physical evidence and its proper documentation in a given case are the very basis for any and all deductions about an offender's characteristics.
This points to the real issue that needs to be confronted in criminal investigations and subsequent judicial proceedings, which is that in crimes involving violent, aberrant, sexual and/or predatory behavior, the physical evidence has generally not been fully examined by qualified investigators or forensic experts. The necessary result of this nearly pathological failure to recognize the intrinsic value of physical evidence is a failure to recognize the importance of, and even gross misinterpretations of, the nature and intent of even the most basic criminal behaviors. The use of competent criminal profilers, who are trained to examine physical evidence and exploit it to its fullest natural conclusion, can be an effective after the fact solution to this problem, even years after the crime has been committed.
One of the largest issues that any forensic examiner faces is the question of objectivity. The objective forensic investigator's role is that of a neutral, disinterested participant, never degenerating into that of an advocate. As forensic investigators of fact, criminal profilers are no different from other forensic examiners and are bound by the same ethical standards.
In cases where the offender is unknown, it is less difficult to navigate objectivity than in cases where a suspect or a defendant is involved. To better maintain objectivity, a profiler should not conduct suspect interviews, and further should not have contact with case related defendants, at any time prior to the development of the final profile. This guideline helps to prevent the profiler from "tailoring" their conclusions to include or exclude a particular type of individual based on contact with a suspect or defendant. Adherence to this guideline keeps the final profile a product of crime scene behavior and victimological assessments deducted purely from forensic evidence and witness testimony, and truly enables a more objective rendering.
As Burgess et al  explicitly state in their treatise on the subject of sexual homicide analysis, regarding case material submissions by requesting agencies:
"Information the profiler does not want included in the case materials is that dealing with possible suspects. Such information may subconsciously prejudice the profiler and cause him or her to prepare a profile matching the suspect."
This author would go even further by stating that the influences of suspect or defendant information on subsequent profiles can be conscious as well as unconscious. Again, this is an ethical issue that each profiler must confront, but that can be avoided by adherence to the above guideline. However, a reality of the nature of profiling is that pure objectivity is an ideal and not always attainable. So whether the profiler is retained by the prosecution, the defense, or another interested party, the value of any interpretations or opinions rendered should ultimately be judged solely by how well they account for the facts of the case and nothing more.
The criminal profiling process offers many benefits to the trial attorney. This section will overview some of the more salient benefits with general examples.
As discussed, the most effective criminal profilers tend to be those who have first been trained as competent forensic investigators, with an appreciation for the value of forensic evidence, and the ability to perform at least some level of wound pattern analysis. In as much as this is true, a profiler should first go through the process of analyzing the physical evidence in the case presented to them, in an effort to determine the actual nature of the interaction between the victim and the offender from all available documented sources. This includes first responder's reports, investigators' reports, autopsy reports, results of sexual assault examination, witness interviews, victim statements (when available), and all available photos and videos. The net result of this equivocal forensic analysis is that the profiler becomes better informed about the larger picture of the investigation, and better able to illuminate areas in the first stages of the investigation where weaknesses in evidence collection or recognition may have occurred, as well as potential errors in forensic interpretation, and even complete omissions in evidence recognition.
This author has worked on several capital cases where crucial evidence was not recognized or collected by investigating detectives, coroners, and even highly trained medical examiners. Yet the same evidence was clearly visible in the crime scene and autopsy photos, waiting for someone to look for it.
The type of physical evidence most commonly missed in the case experience of this author includes such highly probative evidence as petechiae in the eyes and nasal mucosa, bloodstain patterns of varying nature and origin, bitemark evidence misinterpreted as blunt force trauma, blunt force trauma misinterpreted as stab wounds, lacerations misinterpreted as stab wounds, victims' gaping anal sphincters misinterpreted as anal rape, and pattern injuries of varying origins. The major tenets of wound pattern analysis as they can be applied to criminal cases are explored in Geberth  and DiMaio et al .
The profiler's role in these instances, where crucial physical evidence has been overlooked, is not necessarily to interpret it, but to direct counsel to the appropriate forensic expert- i.e. if a bitemark appears evident on a victim's breast, then the profiler would recommend that counsel seek out a forensic odontologist.
Fantasy and Motivation
A common misconception on any side of the courtroom is that there is such a thing as a motiveless crime. As Geberth  states in his definitive treatise on homicide investigation, "No one acts without motivation." What is also true, however, is that very often the specific motivation for a particular crime may only be known to the offender.
It is the job of the profiler, in concert with criminalists, to reconstruct behavior from the physical evidence, then look for patterns in that behavior, and illuminate that behavior's meaning within the context of a specific crime or series of crimes, to a specific criminal offender. That is, the profiler interprets the psychological value and meaning of each crime behavior committed by an offender. Behaviors either serve the MO, and are necessary to complete the crime, or they serve a fantasy constructed by the offender. For descriptions of this process in great detail, readers can reference a number of highly respected learned treatises on the subject (, , , , ).
State of Mind
One of the major contributions of a profiler to trial strategy is the interpretation of offender state of mind before, during, and after the commission of the crime. This is accomplished very effectively by the profiler because the only source of information used is the offender's crime scene behavior and interaction with the victim. Where forensic psychologists and other assessors may use post-apprehension interviews, polygraph examinations or personality measures which have been duped countless times by offenders over the years, the profiler carefully examines what the offender did, and has little use for what the offender has to say about what they did.
Examples of behaviors that can give insight into offender state of mind include, but are not limited to: bringing a rape-kit to the crime to facilitate a victim's torture (indicating some level of pre-planning), as opposed to using available materials (indicating some level of spontaneity); using the victim's shirt to cover their face during the commission of the crime (indicating some level of spontaneity), as opposed to bringing a blindfold or tape to cover the victim's eyes (indicating some level of pre-planning); the presence of violent, frenzied slashing injuries to the victim's face (indicating some level of rage and familiarity, or perhaps a need to depersonalize), in contrast to careful, methodical exploratory stab wounds (inflicted either to torture a conscious victim, or to satisfy the offender's curiosity with an unconscious victim).
MO Behavior and Signature Behavior
As previously mentioned, MO behaviors are those committed by the offender during the commission of the crime which are necessary to complete the crime. MO behaviors are unstable across offenses, and may alter as the offender gains confidence or experience. Fantasy behaviors are committed to serve the offender's fantasies, and psychological and/or emotional needs. Fantasy behaviors are also called signature behaviors, are thematic in nature, and tend to be more stable over time. These concepts are thoroughly explored by Geberth  and Turvey .
The profiler identifies signature behaviors and MO behaviors, and interprets their meaning for the purpose of linking two separate crimes together as having been potentially committed by the same offender, or for the purpose of demonstrating how two crimes may be psychologically different, indicating two separate offenders.
The objective, deductive process of criminal profiling as described in this paper, and the subsequent benefits as detailed, can directly lend themselves to the development of trial strategy. Specifically, the criminal profiling process can help attorneys understand the nature and quality of physical evidence, offender fantasy behavior and/or motivation, offender state of mind during the commission of the crime, and help link or exclude cases by illuminating offender patterns in terms of Modus Operandi (MO) and Signature behavior.
It is further important to note that profiling will not implicate a specific individual in a specific crime, but can be used to implicate a specific type of individual, with specific psychological and emotional characteristics. As with any such process, it is subject to abuses by those who do not adhere to requisite ethical standards in their zeal to either seek conviction, or seek an acquittal. In competent hands, it can be a constructive and useful tool.
It is also important to recognize that the results of the profiling process are only as competent as the original investigative efforts and processes which provide (or in many cases fail to provide) the physical evidence from which criminal behavior is reconstructed. This is due to the reality that not only is it possible for investigators to misinterpret the physical evidence which has been recognized and collected, but it is also possible for investigators to fail to recognize certain types of physical evidence which they are not trained to look for. This set of realities illuminates very clearly why profilers are best conceptualized as a single member of a larger investigative team, who depend on other team members to do their job competently. This set of realities also illuminates the reason why a good profiler should first conduct an equivocal forensic analysis before delving into the psychological aspects of a crime; they must be certain that the behavior they are profiling, and ascribing meaning to, is in fact the behavior that occurred.
The profiling process itself, which can begin after a thorough equivocal analysis has been performed, should not be based on inductive generalizations from statistical databases, such as with syndrome evidence, or be used to provide counsel with tailored expert testimony which serves one side of the courtroom in favor of the other, placing the profiler in the role of advocate. Rather, the profiling process at its best maximizes the potential of any existing physical evidence in seemingly motiveless cases involving criminal behavior of violent, aberrant, sexual and/or predatory nature. It further serves to illuminate physical evidence, and offender behavior, in a way that allows counsel to competently prepare for trial.
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