The Estate of Sam Sheppard v. State of Ohio
Case No. 312322


The Estate of Sam Sheppard v. State of Ohio
Case No. 312322

The following is the full text of 11-page affidavit prepared by Brent E. Turvey, MS dated March 25, 2000. The full affidavit was filed in this case on Wednesday, March 29, 2000 and used to help successfully limit the testimony of Gregg McCrary in this case:

Brent E. Turvey, MS
Knowledge Solutions LLC
1961 Main St., PMB 221
Watsonville, CA 95076
(831) 786-9238
bturvey@corpus-delicti.com

March 25, 2000

Mr. Terry Gilbert
1700 Standard Building
1370 Ontario Street
Cleveland, OH 44113
(216) 241-1430

Re: The Estate of Sam Sheppard v. State of Ohio, Case No. 312322

This examiner, Brent E. Turvey of Knowledge Solutions LLC of Watsonville, California was asked by Terry Gilbert, an attorney representing the Estate of Sam Sheppard, to provide opinions on issues relating to the probative nature of criminal profiling as it relates to Daubert criteria (Daubert, 1993) and the more recent Kumho Tire (Kumho Tire, 1999) decision. This examiner was also asked to evaluate the nature, methodology and content relating to conclusions provided in a so-called Criminal Investigative Analysis report dated December 1st, 1999 prepared by Gregg O. McCrary of Behavioral Criminology International of Fredericksburg, Virginia.

In order to complete this task, I was provided with the following case material:

  1. Various crime scene and autopsy photos;
  2. Marilyn Sheppard autopsy and trace evidence report;
  3. Formal statement of Samuel H. Sheppard dated July 10, 1954;
  4. Summarized testimony of Samuel H. Sheppard at trial, 1954;
  5. Affidavit of Paul Leland Kirk - dated April 26, 1955;
  6. Michael Sobel, DMD - Report undated;
  7. Barton Epstein - Report dated June 18, 1999;
  8. William Fallon, MD - Report dated July 29, 1999;
  9. Cyril H. Wecht, MD, JD - Report dated July 29, 1999 & Supplemental report dated January 14, 2000;
  10. Emanuel Tanay, MD - Report dated July 30, 1999;
  11. Gregg O. McCrary CV; Report dated December 1, 1999 and deposition taken January 24, 2000;
  12. Ranajit Chakraborty, PhD. - Report dated January , 2000

Discussion
Professionals engaged in the practice criminal profiling have included a broad spectrum of investigators, behavioral scientists, social scientists, and forensic scientists. Their involvement in casework has traditionally been concerned with criminal investigative efforts. In that capacity, criminal profiling has been sought out as a tool to help achieve investigative ends which include the reduction of suspect pools, assistance with case linkage efforts, and the development of investigatively relevant leads and strategies (Burgess et al, 1988; Burgess & Hazelwood, 1995; & Turvey, 1999).

However, it is becoming more common for criminal profilers to find themselves asked to give expert forensic opinions on criminal and civil matters in courts of law. Criminal profiler testimony has been sought out relating to areas of specialized knowledge (i.e. - victimology, offense planning, common scheme or plan, motive, etc.) as well as on issues relating to offender identity. These identity issues encompass such things as likely offender characteristics and determinations relating to unique patterns and characteristics of crimes linked back to specific individuals. Having been originally developed primarily for investigative use, there is legitimacy to the question of whether or not criminal profiles can be probative.

The purpose of this paper is to discuss the forensic and scientific issues related to the employment of criminal profiles as a means of forensic identification in courts of law, and whether or not criminal profiles (the identification of offender characteristics) have a legitimate role to play in that regard. In order to do this in an informed manner, we will discuss what constitutes a criminal profile, and then whether or not it should or can satisfy Daubert (1993) criteria. This will be concluded with a brief discussion regarding the relationship between science, forensic identification, and criminal profiles.

Definitions: What Constitutes a Criminal Profile?
The generic term criminal profiling (a.k.a. offender profiling, psychological profiling, criminal personality profiling, behavioral profiling, crime scene profiling and criminal investigative analysis) has been defined in a roughly consistent fashion throughout the published literature on the subject. A review of these definitions is prudent for our purposes:

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. (Burgess et al, 1992)

Furthermore:

Previously termed "psychological profiling" and "criminal personality profiling", the term "criminal investigative analysis" was coined to differentiate the procedure from that used by mental health professionals… (Depue et al, 1995)

Other sources use roughly the same language, with the inference of different kinds of offender characteristics being the discriminating and defining trait of a criminal profile:

Offender profiling is the process of inferring the characteristics of an offender from the way that offender acted when committing the crime. (Canter, 1995)

A criminal personality profile is an educated attempt to provide investigative agencies with specific information as to the type of individual who would have committed a certain crime. (Geberth, 1996)

The process of inferring distinctive personality characteristics of individuals responsible for committing criminal acts has commonly been referred to as criminal profiling. (Turvey, 1999)

A Criminal Profile is a report that describes the investigatively relevant and/ or probative characteristics of the offender responsible for a particular crime, or a series of related crimes…

Offender characteristics include any attributes that the examiner ascribes specifically to the unknown person or persons responsible for the commission of particular criminal acts, including those that are physical, psychological, social, geographical, or relational. (Baeza et al, 2000)

Given these definitions, it is reasonable to conclude that any analysis, report or opinion offering conclusions about likely, probable, or inferable offender characteristics (i.e. - that an offender possesses a given trait), could be considered a form of, or a portion of, a criminal profile. Subsequently, any analysis, report or opinion that offers conclusions which fall short of attributing characteristics to an offender is not a form of, or a portion of, a criminal profile. As may be implied, this holds true irrespective of the means used to determine those offender characteristics, whether they be statistical/ inductive and descriptive of general offender types, or rational/ deductive and descriptive of one offender in specific as delineated in Knight & Prentky (1990) and Turvey (1999).

Is Criminal Profiling a Science?

This is a question to which there can be only one answer: No, criminal profiling is not a science. The literature that has bothered to address this question directly contends that a criminal profile is an educated surmise and/ or a non-scientific opinion (Geberth, 1996; McCann, 1992; Holmes & Holmes, 1996; Turvey, 1999). However, this cannot be the limit of our inquiry into the matter without doing some injustice.

According to Thornton (1997):

The classical definition of a science is "an orderly body of knowledge with principles that are clearly enunciated." While this definition will suffice for most purposes, it is generally conceded that a few other qualifiers may be necessary. For example, additional requirements commonly added specify that the subject be susceptible of testing, and that it be reality-oriented.

It can be reasonably argued that there does exist a body of knowledge related to the field of criminal profiling, however nascent and divergent (see Burgess et al, 1988; Hickey, 1991; Burgess et al, 1992; Burgess & Hazelwood, 1995; Holmes & Holmes, 1996; Turvey, 1999; Baeza et al, 2000). However, it must be conceded that the many and varied principles upon which this body of knowledge is built are not always clearly enunciated by the authors of these works, and they are certainly not shared uniformly across practitioners. That is to say, criminal profilers do not always agree on methodology, definitions, or the application of either to individual cases. Further still, some of the concepts discussed in these works are theoretical, being inductive hypotheses awaiting testing as opposed to deductive conclusions that have been shown to be valid and reliable.

The remaining issues can be covered by a discussion of the Daubert standard (Daubert, 1993) as it relates to the process of inferring offender characteristics.

The Issue of Identity
The purpose of a criminal profile is to assist in the process of establishing the characteristics of an offender that separate them from the general population, that being the initial suspect pool in a criminal investigation. It is, by its nature, a tool for use in the process of offender identification. However, it is not a tool suited for the task of individuating offenders (for a discussion on the subject of identification v. individuation, see Thornton (1997)).

There is a general consensus in the literature that behavioral evidence and criminal profiling alone should not be used to suggest the specific identity of a particular individual in relation to a particular crime or series of crimes (Burgess et al, 1992; Burgess & Hazelwood, 1995; Holmes & Holmes, 1996; Turvey, 1999). They may be used suggest the type of person most likely to have committed the offense, but not the specific person. U.S. courts of law have routinely agreed that such testimony is more prejudicial than helpful, and have ultimately ruled to keep that kind of testimony out of the courtroom (Ingram, 1998; Grezlak, 1999; Roy, 1999; Siegal, 2000)

Furthermore, the Academy of Behavioral Profiling, an independent professional organization dedicated to the professionalization of evidence based criminal profiling (of which this author is founding member), precludes the use of profiling for the purposes of forensic individuation. Their ethical guidelines provide that its members "Not use a profile or crime analysis (the inference of Offender or Crime Scene Characteristics) for the purposes of suggesting the guilt or innocence of a particular individual for a particular crime."

Criminal Profiling & Daubert
One way to assess the probative value of criminal profiles in courts of law would be to apply the Daubert standard (Daubert, 1993). The first question would seem to be whether Daubert should even be applied to this nascent forensic discipline. Since it is not a science, it may legitimately fall under the guise of an area of specialized knowledge. As such the opinions and testimony of criminal profilers, to be probative, may need only to be helpful when the subject matter would otherwise be incomprehensible to the trier of fact (Thornton, 1994). However, some have made the argument that Daubert applies to all testimony, including profile testimony (Jonakait, 1994), not just that which is labeled scientific (Saks, 1994). This argument has been held by the U.S. Supreme Court's ruling in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999):

The Daubert "gatekeeping" obligation applies not only to "scientific" testimony, but to all expert testimony. Rule 702 does not distinguish between "scientific" knowledge and "technical" or "other specialized" knowledge…

If we are able to presume that a reasonable argument can be made that profiling testimony (opinions related to offender characteristics) will assist the trier of fact on a material issue, the following Daubert criteria may still need to be addressed: testability, peer review, error rates, and general acceptance.

Criteria 1: Testing & Falsifiability
According to Thornton (1997), "The foundation of the scientific method, the most fundamental aspect, is the formulation and testing of hypotheses." He then further states that:

Forensic scientists have, for the most part, treated induction and deduction rather casually. They have failed to recognize that induction, not deduction, is the counterpart of hypothesis testing and theory revision. They have tended to equate a hypothesis with a deduction, which it is not. As a consequence, too often a hypothesis is declared as a deductive conclusion, when in fact it is a statement awaiting verification through testing.

The field of criminal profiling has behaved no differently. It is the experience of this examiner that many criminal profiles involve the development of surmises, hypotheses, or preconceived theories (Gross, 1924) which are accepted or assumed to be infallible without any attempt to falsify them.

For example, FBI profilers have testified before the United States Senate Armed Service Committee that they do not make a habit of investigating the soundness of investigative assumptions, premises and opinions in case materials provided by requesting agencies. According to FBI Special Agent Robert Hazelwood, "Whenever we are requested to do a case for an investigative agency, we make the assumption that we are dealing with professionals. They provide us with materials for review, and that's what we review," (The U.S.S. Iowa, 1990).

Furthermore, FBI profilers have been criticized in independent peer review for the following practices (Darkes et al, 1993; Homant & Kennedy, 1998; Turvey, 1999):

This includes the as of yet untested theoretical offender classifications and theoretical individuating concepts such as offender signature developed by FBI profilers through the National Center for the Analysis of Violent Crime (NCAVC) and subsequently published in the Crime Classification Manual (Burgess et al, 1992).

It is this examiner's view that unless there can be some qualification as to how inferences and theories regarding offender characteristics have been developed and tested against the case facts or alternate theories (through attempts to falsify, essentially), those inferences and theories should be treated with derision.

Criteria 2: Peer Review and Publication
Given the untested nature and varying quality of the material published in the area of criminal profiling, it cannot be said that peer review and publication have routinely played a significant role in determining whether or not the methodologies espoused in that material are valid and relevant. This is not unique to the field of criminal profiling. Thornton (1994) gives an even view in stating, "…it cannot be supposed that publication alone will suffice to prove the validity of a particular method."

Having said that, it must be stated that FBI profiling methods have failed detailed peer reviews of their casework and publications (Darkes et al, 1993; Turvey, 1999). This also includes a peer review of the FBI's Criminal Profiling Project involving the study of 36 incarcerated offenders and their 118 victims. According to Nobile (1989), "the Justice Department rejected the study for government publication after outside reviewers flayed its statistics and methodology." Despite the failure of their methodology in this study, FBI agents sought publication elsewhere (Burgess et al, 1988). This study remains as foundational knowledge for many FBI profiling concepts, methods, and research models.

It is this examiner's view that when studies are conducted and subsequently published, the scientific method should be employed. Failing that, profiling opinions, hypotheses, and theories should be sufficiently qualified as such.

Criteria 3: Error Rates
At first blush, this sounds like a straightforward and reasonable request to make. All methods of forensic identification should be tested and their error rates known to determine their reliability. However, according to Saks (1994):

Identification science consists largely of speculation, impression, and intuition. It is a field of assertedly scientific endeavor that, ironically, cannot offer sufficient research data in its own behalf simply because its basic theoretical notions have been subjected to virtually no empirical testing.

Forensic identification scientists, no doubt due in large part to their instructional role and function, tend to claim a most unscientific sort of infallibility, and have a history of exaggerating their wares. Within such a culture, ironically for one that calls itself a science, empirical research is viewed as a threat rather than a help or a defining part of its essence.

Thornton (1994) appears to concur with this sentiment, at least to some degree. The point being that error rates of even the hard forensic sciences are unknown. As such, it seems to this examiner inappropriate to hold an area of specialized knowledge such as criminal profiling to a higher standard than is being met by the identification sciences.

In any event, the error rates for criminal profiles are also unknown. As stated by Homant & Kennedy (1998):

As far as we can determine, no one has attempted to assess the validity of crime scene profiling in real life situations. Such a study would present some unique problems. The main problem is the lack of objective criterion against which to test a sample of actual profiles… Even when the identity of the offender is unambiguously determined, there is still a large subjective element in deciding how well the person fits the profile.

I find myself agreeing with the concerns expressed in this passage, as well as the notion that a conviction is not evidence of actual guilt, and that an acquittal is not evidence of actual innocence. As such it is frequently impossible to make a reliable, unambiguous determination as to he precise identity of the offender in a given case. Without this information, reliability studies themselves cannot be meaningful.

Criteria 4: General Acceptance
It may be said without significant debate that criminal profiles are generally accepted as legitimate investigative tools by law enforcement and other investigative agencies. This investigative acceptance, however, is not necessarily related to the validity of criminal profiles (nor could it be, since this has not been demonstrated empirically or in practice, as described previously). This is not a professional community that necessarily rewards reliability and punishes inaccuracy. Consider that many criminal investigators also generally accept the investigative use of imprecise and unreliable investigative tools such as polygraphy, voice stress analysis and psychic intuition (Geberth, 1996). Consider also that this acceptance may have something to do with the tendency of profilers in major investigative agencies to overstate the confidence and certainty of their conclusions to less knowledgeable investigators that may be overwhelmed or seduced by an authoritative sounding federal acronym (Darkes et al, 1993).

Conclusions

1. Criminal profiling is generally accepted as a tool used in the investigative process for the identification of suspects, not specific offenders. There is furthermore a consensus in the published literature and in recent U.S. court decisions that it is neither a science, nor a valid tool for courtroom identification purposes, being more prejudicial than probative. This is true whether Daubert criteria are at issue or not. As a practicing forensic scientist who also engages in investigative profiling, I concur with this view.

2. While the Crime Classification Manual (Burgess et al, 1992) is an investigative text considered useful by some, its foundational premises are based on the flawed research data and methodologies previously described in this report, as well as being largely untested with respect to validity.

3. The so-called Criminal Investigative Analysis report by Greg O. McCrary dated December 1st, 1999 is a criminal profile. I base this on the fact that Depue et al (1995) states explicitly that the term Criminal Investigative Analysis is merely an FBI replacement term for the term criminal profile. I also base this on the fact that the conclusion of the report identifies ALL of the characteristics of the offender responsible for this crime by naming that person.

4. Mr. McCrary has apparently uncritically accepted the initial investigation conducted by law enforcement as competent and thorough. He has not addressed the weaknesses or limitations of their efforts in his opinions. This is not a legitimate forensic practice.

5. Mr. McCrary admits that he has no experience investigating domestic homicides. As such, it would appear that he operating outside of his area of knowledge and/ or expertise when rendering opinions on related issues in his report. This is not a legitimate forensic practice.

6. Mr. McCrary, by his own admission, is not a criminalist or an expert in the area of blood pattern analysis. As such, it would appear that he is operating outside of his area of knowledge and/ or expertise when rendering opinions on related issues in his report. This is not a legitimate forensic practice.

7. Mr. McCrary has ignored and/ or dismissed the examinations and opinions provided by experts in the area of blood pattern analysis retained by both the plaintiff and the defendant in this case. As this is, again, outside of his area of expertise, I cannot conceive of a rational argument in support of this as a legitimate forensic practice.

8. Mr. McCrary has, in his report, inferred the authoritative reliability of the literature, opined outside of his areas of expertise, and presumed to name the offender in this case based on behavioral information alone. This is an overstatement of the confidence of his theories by a wide margin. A rational argument could be made that he has presented opinion and theory as though they were fact. This has been done without addressing the expert opinions of others on critical forensic issues, without discussing the limitations of his opinions, and without discussing alternate possibilities. This is not a legitimate forensic practice.

I swear and affirm to the best of my knowledge that the above statements are true under penalty of perjury.

 

 

______________________________

Brent E. Turvey
Forensic Scientist


References

Baeza, J., Chisum, W.J., Chamberlin, T.M., McGrath, M., & Turvey, B., "Academy of Behavioral Profiling: Criminal Profiling Guidelines," Journal of Behavioral Profiling, January, 2000, Vol. 1, No. 1

Burgess, A. G., Burgess A. W., Douglas, J. & Ressler, R., Crime Classification Manual, (Lexington Books, 1992)

Burgess, A., Douglas, J., Ressler, R., (Eds.) Sexual Homicide: Patterns and Motives, (Lexington Books, 1988)

Burgess, A., Hazelwood, R. (Eds.), Practical Aspects of Rape Investigation, 2nd Ed., (CRC Press, 1995)

Canter, D., "The Psychology of Profiling," in Bull, R., & Carson, D., (Eds.) Handbook of Psychology in Legal Contexts, (John Wiley & Sons, Ltd., 1995)

Darkes, J., Otto, R. K., Poythress, N., & Starr, L., "APA's Expert Panel in the Congressional Review of the USS Iowa Incident," American Psychologist, January 1993, pp.8-15

Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993)

Depue, R., Douglas, J., Hazelwood, R., & Ressler, R., "Criminal Investigative Analysis: An Overview," in Burgess, A., Hazelwood, R. (Eds.), Practical Aspects of Rape Investigation, 2nd Ed., (CRC Press, 1995)

Geberth, V., Practical Homicide Investigation, 3rd Ed., (CRC Press, 1996)

Grezlak, H., "'Profiling' Testimony Inadmissible in Murder Trial," Pennsylvania Law Weekly, April 12, 1999

Gross, H., Criminal Investigation, (Sweet & Maxwell, 1924)

Hickey, E.W., Serial Murderers and Their Victims, (Brooks/Cole Publishing Co., 1991)

Holmes, R., & Holmes, S., Profiling Violent Crimes: An Investigative Tool, 2nd Ed., (Sage Publications, 1996)

Homant, R. J., & Kennedy, D.B., "Psychological Aspects of Crime Scene Profiling: Validity Research," Criminal Justice and Behavior, Vol. 25, No.3, September, 1998, pp.319-343

Ingram, S., "If the Profile Fits: Criminal Psychological Profiles Into Evidence in Criminal Trials," Journal of Urban and Contemporary Law, 1998, Vol. 54, pp. 239-266

Jonakait, Randolph N., "Real Science and Forensic Science," Shepard's Expert and Scientific Evidence Quarterly, Winter 1994, Vol. 1, No. 3, pp. 435-455

Knight, R. & Prentky, R., "Classifying Sexual Offenders: The Development and Corroboration of Taxonomic Models," in Barbaree, H., Laws, D. & Marshall, W., Handbook of Sexual Assault: Issues, Theories, and Treatment of the Offender, (Plenum Press, 1990)

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)

McCann, J.T., "Criminal Personality Profiling in the Investigation of Violent Crime: Recent Advances and Future Directions," Behavioral Sciences and the Law, Vol. 10, pp.475-481

Lee, H., (Ed.), Crime Scene Investigation, (Taoyuan, Taiwan, R.O.C: Central Police University Press, 1994)

Nobile, P., "The Making of a Monster," Playboy, July, 1989

Omerod, David C., "The Evidential Implications of Psychological Profiling," Criminal Law Review, 1996, pp. 863-877

Roy, Y., "New York Judges Rebut County Prosecutors' Mateo Thesis," Rochester Democrat and Chronicle, March 24th, 1999

Saks, Michael J., "Implications of the Daubert Test for Forensic Identification Science," Shepard's Expert and Scientific Evidence Quarterly, Winter 1994, Vol. 1, No. 3, pp. 427-434

Siegal, R., "Court rules 'profiler' testimony can't be used to pinpoint suspect," Associated Press, February 24, 2000

Thornton, John I., "Courts of Law v. Courts of Science: A Forensic Scientist's Reaction to Daubert," Shepard's Expert and Scientific Evidence Quarterly, Winter 1994, Vol. 1, No. 3, pp. 475-485

Thornton, John I., "The General Assumptions And Rationale Of Forensic Identification," for David L. Faigman, David H. Kaye, Michael J. Saks, & Joseph Sanders, Editors, Modern Scientific Evidence: The Law And Science Of Expert Testimony, Volume 2, (St. Paul: West Publishing Co., 1997)

Turvey B., Criminal Profiling: An Introduction to Behavioral Evidence Analysis, (Academic Press, 1999)

"The U.S.S. Iowa: Guilt by Gestalt," Congressional Testimony, Harper's Magazine, March, 1990