'Profiling' Testimony Inadmissible in Murder Trial
Too speculative, prejudicial, judge says

Hank Grezlak
Pennsylvania Law Weekly
April 12, 1999

Most people are familiar with the idea of "profiling"-- attempting to link general characteristics of killers to specific characteristics of a single killer-- from movies like "The Silence of the Lambs" and from documentaries about the FBI's Behavioral Science Unit.

While the concept might make sense to the general public, a Common Pleas Court judge has ruled that profiling testimony isn't admissible in Pennsylvania in an apparent case of first impression.

The reason? Profiling isn't generally accepted in the scientific community, Lackawanna County Common Pleas Court Judge Carlon O'Malley said in Commonwealth v. Distefano, PICS Case No. 99-0640.

The defense attorney called profiling "voodoo," and said if the judge had allowed testimony about it at trial, then the defense would have to be allowed to introduce its own profiling expert to rebut the prosecution's witnesses.

O'Malley said Dr. Richard Walter, a prison psychologist from Michigan, could not testify at Christopher Distefano's murder trial, and Robert Hazelwood, who worked for 16 years in the Behavioral Science Unit, could only testify about his analysis of the crime scene -- not profiling.

Profiling just doesn't meet the standard for admissibility under Frye v. U.S., O'Malley said.

According to the opinion, the prosecution was taking "great pains to disassociate Mr. Hazelwood's testimony and opinions [related to an exhibit] from that of a profiler."

But O'Malley said, no matter what the prosecution called it, Hazelwood's testimony dealt directly with profiling.

"What the Commonwealth seeks to establish through using Mr. Hazelwood's testimony is that the defendant exhibited the characteristics and behaviors of how a murderer may act," O'Malley said. "Not only is the testimony profiling, but it is also speculative and expressed in terms of probabilities.

"This court finds that the Commonwealth has failed under Frye to establish that profiling testimony has gained general acceptance in the scientific community to form the basis of Mr. Hazelwood's expert testimony.

"Furthermore, Mr. Hazelwood's report and related testimony evidences little probative value and is extremely prejudicial to the defendant. Such testimony is akin to an expert eyewitness account that the defendant committed the murder. This court will not allow such an account."

In addition, O'Malley said he had a problem with the lack of certainty in Hazelwood's testimony. He said Hazelwood used the terms "not unique" and "may" frequently in his expert report.

"The language 'not unique' in Mr. Hazelwood's report and 'may' expressed in his testimony is deficient and not supportive of admissibility," O'Malley said.

O'Malley ruled Walter's testimony inadmissible for much the same reason. Although the prosecution and Walter tried to claim he wasn't going to talk about profiling, O'Malley said, "It is quite clear to this court that it is."

The prosecution couldn't establish that Walter's testimony was "sufficiently reliable," he said.

"Even Mr. Walter explained to the court that he didn't think an authoritative book or article on the subject upon which he was testifying had yet been written," O'Malley said. "Mr. Walter's opinions and testimony appear to this court to be based too much on probabilities and speculation."

PROSECUTION WINS ON ONE COUNT

The news wasn't all bad for the prosecution. O'Malley said that Hazelwood could testify about his analysis of the crime scene, because he "clearly has specialized knowledge" concerning the subject.

"Based upon Mr. Hazelwood's vast experience in analyzing sexual and homicide crime scenes, Mr. Hazelwood formulated his opinions and drew conclusions related to the physical evidence or lack of physical evidence of the crime scenes," he said. "This court feels this testimony would be helpful to the jury, to the extent that Mr. Hazelwood's report and opinions do not seek to profile, Mr. Hazelwood's testimony will be allowed."

But O'Malley said he would prohibit any attempt to get Hazelwood to discuss "the establishment of a link between assessed behavioral traits of a murderer, specific characteristics and behavior of the defendant and direct or indirect assertions of the defendant's guilt."

"[T]his court will not allow Mr. Hazelwood to expand into profiling or areas of probabilities," he said. "We remain mindful that an opinion couched in terms of probabilities and/or possibilities is to be excluded as lacking the requisite certainty to be admissible as an expert witness."

However, O'Malley said in his order that he would allow Distephano's attorneys to appeal his decision to admit Hazelwood's crime scene analysis testimony immediately.

DEFENSE ATTORNEY

One of Distephano's lawyers, Robert Mazzoni, said he had no knowledge of any Pennsylvania cases on the subject. He said he was worried about the decision.

"I thought it was going to be a close call because the DA stayed away from the term profiling," he said.

Mazzoni said he was hoping to bar Hazelwood from testifying about his crime scene analysis because in his mind it is so similar to his profiling testimony.

"It's really a different suit on the same animal," Mazzoni said. "It's a distinction without a difference."

He said he didn't anticipate the appellate courts allowing profiling testimony because it would lead to a battle of experts that, in the courts' view, would only confuse jurors. Mazzoni said he retained a former member of the Behavioral Science Unit as an expert in the event the prosecution was successful in getting Hazelwood's and Walter's testimony admitted.

"It's voodoo," he said. "They [profilers] are just glorified mystics."

According to Mazzoni, Distephano is accused of killing an old girlfriend, who happened to be a prostitute. The case, he said, has received a lot of media coverage in Lackawanna County.

The prosecution could not be reached for comment.

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