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Description
Criminal profiling and its investigative utility for policing have been examined at some length despite there being only an embryonic body of robust empirical research. The use of profiling knowledge in assisting the curial process in Australian courts, however, has had much less attention, although a few academics and legal commentators have debated its probative value. At present, profiling evidence is generally not accepted in this country, although some limited aspects have been introduced into court settings. Yet no empirical work has investigated the opinions of lawyers regarding its probative versus prejudicial nature. This preliminary study of lawyers in two states suggests that barristers and solicitors possess little knowledge about profiling; maintain that profiling is not accurate or valid and is of little value in adjudications; and subscribe to the view that the discipline of psychology is the most likely area of expertise to proffer profiling opinions. The following issues are considered: the need for greater training within the legal profession; the elements of profiling processes that might yield utility; and the necessity for further development of the field to generate the greater confidence that will be required if it is ever to be widely accepted in Australian courtrooms.
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Traditionally, criminal profiling is used by police to assist with directing inquiries when other resources have been exhausted or proved unsuccessful (Wilson, Lincoln, & Kocsis, 1997). However, the steps involved in some profiling methods specify that they can be used for adjunct purposes such as guiding interviews with suspects or in assisting the courts during adjudication (Owen, 2004). Internationally there are now many instances where profiling evidence has been presented at both the 'trial and sentencing phases' (Petherick, Field, Lowe, & Fry, 2005, 67). This is not yet the situation in Australia where more caution has been exercised over its admissibility especially regarding the expertise of its practitioners. Similarly, in the United Kingdom and Canada criminal profiling evidence has been rejected in a number of well-canvassed suicide and sexual assault cases (see Freckelton, 2005; Petherick et al., 2005).
However, the application of profiling is being extended with information offered (often by police) to aid in the prosecution and defence of alleged offenders in terms of signature behaviours, modus-operandi behaviours, motivational analysis and case-linkage analysis (Ingram, 1998). These discrete elements of profiling knowledge are demonstrated in three Australian cases: motivational analysis in the sworn evidence of Illingsworth (2003) during a coronial inquiry; behavioural analysis in R v Hiller;, and analysis of modus-operandi behaviours in R v Renton--an alleged miscarriage of justice case.
As indicated above, there are aspects or elements of the practice of profiling which differ from the offering of a complete and static psychological or behavioural profile that could be used in courts. In one Canadian case (R v Ranger) crime scene elements have been distinguished from criminal profiling, where the former is an attempt to describe 'what happened' whereas the latter attempts to describe 'who may be culpable'. The evidence was nevertheless rejected at appeal because it was 'guesswork' and went to the ultimate issue (Freckelton, 2005). Thus some crime scene analysis or reconstruction (i.e., is this crime scene staged?) may be permissible but not when it ventures further into purporting to prove who might have committed the offence based on extraneous information.
It is not the purpose here to present details of the limited but growing body of empirical work that has been conducted on criminal profiling. First, there are eminent texts that describe various profiling approaches in detail or cover the field as a whole (Ainsworth, 2001; Canter, 2003; Kocsis, 2006b; Owen, 2004; Turvey, 2002). Second, there is a small band of studies that have explored the investigative relevance of profiling following on from the work of Pinizzoto and Finkel (1990) or Gudjonsson and Copson (1997) which have found a reasonable level of investigative utility. Finally, there is a more recent collection of empirical works that have endeavoured to evaluate various aspects of profiling. For example, Kocsis and colleagues have now amassed a body of work that tests 16 professional profilers and found that they 'can predict the characteristics of an unknown offender, to varying degrees, more proficiently than many of the compared participants', such as students, psychologists and police (Kocsis, 2006a, 460).
The problem is that achieving an objective measure of reliability for profiling is difficult (Ormerod, 1999; Risinger & Loop, 2002; Pinizzotto & Finkel, 1990; Kocsis, 2003; Kocsis, Hayes, & Irwin, 2002; Kocsis, Irwin, Hayes, & Nunn, 2000). Given the very nature of profiling, controlled experiments and hypothesis testing becomes an improbable task. Consequently, profilers have relied upon their experience and the utility principle as justification of reliability for proffered opinions (Wilson, Lincoln, & Kocsis, 1997). For example, Hazelwood and colleagues (1995, 119) opine that 'no amount of education can replace the experience of having investigated crimes'. They suggest that an understanding of the criminal mind, investigative experience, intuition, objective and logical analysis are key elements... |
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