CRIMINAL PROFILING: THE NEXT FRONTIER?

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Criminal Profiling: The Next Frontier?

Student: Mark Swarek
AU ID: 3219889
Athabasca University
PSYC395 (Forensic Psychology)
Tutor: M. Hendry
Date: May 28, 2017
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Criminal Profiling: The Next Frontier?

There have been more than enough articles written already that argue in favor or against

criminal profiling, also known as behavioral analysis. Frankly, I think they all overlook the real

issue and fall short of evidence-based research, as they are all based on subjective opinion and

the facts used to support those opinions could be used to argue in favor or argue against criminal

profiling, depending on multiple other variables and how those facts are interpreted. A more

appropriate and discerning question would be What advances are needed in order for criminal

profiling to be sufficiently accurate and reliable in this specific situation?

Part I Purposes & Applications

Behavioral Analysis as Investigative Measures

Behavioral analysis is most commonly utilized as an investigative measure, and is

generally accepted by experts and the judiciary for this purpose (with some exceptions). It was

noted in the article Offender Profiling and Expert Testimony, The goal of the profile is to

narrow a pool of suspects, sift through thousands of leads, or provide new leads (J.A. George,

pg. 227, from Homant & Kennedy, Psychological Aspects of Crime Scene Profiling- Validity

Research). While behavioral analysis has since progressed and expanded in some ways, the

practice was developed for these purposes and this remains the primary application. Some of the

other purposes that have developed that are, however, still within this category include to

provide interrogation strategies to law enforcement, to assist prosecutors in developing cross-

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examination strategies, to determine the seriousness of threatening letters, or to set traps in the

media to flush out offenders. (Id.).

Behavioral Analysis as Evidence for Prosecution

Attempts to utilize behavioral analysis as evidence for the prosecution have had mixed

results. Serious questions about behavioral analysis meeting the criteria of scientific method have

been raised and only partially countered, perhaps most notably that behavioral analysis is not a

practice of an objective formula but rather relies heavily on the subjective reasoning of the

behavioral analyst, which cannot be tested by the criteria of scientific methodology. As is noted

in the next part, this has translated to a common finding that behavioral analysis as evidence is

severely limited and must avoid the suggestion that it has the capacity to identify an individual.

Behavioral Analysis as Evidence for Defence

Attempts to utilize behavioral analysis as evidence for the defence have been,

predominantly, unsuccessful. There are many possible reasons for this trend further to the

accusation of bias for the prosecution, such as expert behavioral analysis may be more accessible

to the prosecution than to the defence, the prosecution may be more successful in its strategies of

presenting behavioral analysis evidence than the defence ex. unsuccessful defence attorneys

resort to blunt assertions that a defendant does not fit a profile, while successful prosecutors

produce well stages performances- using a subtle inference that allows the jury to conclude on its

own that the defendant fits (Id.), there is a higher incidence of appeal for prosecution or defence
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and this influences the results, there is pressure from within the field against supporting the

defence, etc.

Behavioral Analysis in Civil Litigation

No references pertaining to behavioral analysis as an investigative technique or as

evidence in civil litigation could be found; this could mean, simply, that this application has not

yet been researched or specifically mentioned in references. As such, the utilization of behavioral

analysis techniques for civil litigation can only be examined theoretically and comparatively.

Theoretically, behavioral analysis might be valuable in certain civil matters in which it

would be relevant to the cause of action. It would, however, have a limited application to a very

small number of proceedings, and further exploration of its utilization in this context is

necessary.

Behavioral Analysis for Prevention & Protective Measures

Again, no references pertaining to behavioral analysis as prevention and/or protective

measures could be found; this could mean, simply, that this application has not yet been

researched or specifically mentioned in references. As such, the utilization of behavioral analysis

techniques for prevention and/or protective measures can only be examined theoretically and

comparatively.

Theoretically, behavioral analysis could be utilized as a tool for prevention and protective

measures- one such usage is mentioned in the next category (needs assessment in determining
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and planning community services). As these usages would be primarily about collective behavior

rather than individual behavior, the question arises if this would still be behavioral analysis.

Behavioral Analysis for Other Purposes

In addition, no references pertaining to behavioral analysis for other purposes could be

found; this could mean, simply, that this application has not yet been researched or specifically

mentioned in references. As such, the utilization of behavioral analysis techniques for other

purposes can only be examined theoretically and comparatively.

Other purposes could include such applications as insurance adjusting, needs assessment

in determining and planning community services, etc. Indeed, techniques in many ways similar

to behavioral analysis are already utilized for these other purposes, although they are, almost

entirely, about collective behavior rather than individual behavior (statistics), likely because

collecting or using individual behavior information approaches greater implications.

Part II Principles & Implications

Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms, s. 2, mandates fundamental freedoms,

such as freedom of conscience, freedom of religion, freedom of thought, freedom of belief,

freedom of expression, freedom of the press, freedom of peaceful assembly, freedom of

association, etc. It is conceivable, in my opinion, that behavioral analysis based on a factor that
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relates to conscience, religious affiliation or doctrine, thought, belief, expression, the press,

peaceful assembly, association, etc. could be found to have violated the persons Charter rights.

The Canadian Charter of Rights and Freedoms, s. 7, mandates the right to life, liberty

and security of the person, which includes rights such as freedom to act without physical

restraint, the power to make important personal choices, rights to privacy of the body and its

health, the right protecting the psychological integrity of the individual, etc. It is conceivable, in

my opinion, that behavioral analysis in general and especially in circumstances that directly

approach the rights specified in section 7 could be found to have violated the persons Charter

rights.

The Canadian Charter of Rights and Freedoms, s. 8-14, mandates legal rights, such as

the right against unreasonable search and seizure, the right against arbitrary detention or

imprisonment, the right to legal counsel and the guarantee of habeas corpus, rights in criminal

and penal matters such as the right to be presumed innocent until proven guilty, the right not to

be subject to cruel and unusual punishment, the right against self-incrimination, the right to an

interpreter in a court proceeding, etc. It is conceivable, in my opinion, that behavioral analysis in

general and especially in circumstances that directly approach the rights specified in sections 8-

14 could be found to have violated the persons Charter rights.

The Canadian Charter of Rights and Freedoms, s. 15, mandates equality rights, or the

right to equal treatment and equal protection/benefit of the law, without discrimination. It is
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conceivable, in my opinion, that behavioral analysis based on a factor that relates to the protected

grounds specified in section 15 or grounds deemed corollary in case law could be found to have

violated the persons Charter rights.

Exceptions (1): The Canadian Charter of Rights and Freedoms, s. 1, allows for justifying

certain infringements of Charter rights (such as those outlined above) in certain scenarios, such

as an urgent or important objective that can be demonstrably justified. It may be arguable that

s. 1 could apply, in certain circumstances, to behavior analysis for some purposes. I would

submit, though, that the circumstances in which s. 1 could be argued successfully would be

significantly limited and would require strenuous reasoning and demonstrated rationalization.

Exceptions (2): The Canadian Charter of Rights and Freedoms, s. 33, allows for laws to

be enacted by Parliament or provincial legislatures excepting the rights found within the Charter

via a notwithstanding clause. This has never been invoked by the federal Parliament, and rarely

by provincial Legislatures. In any instance where this is invoked, it must be re-enacted every five

years to remain in force. It could, however, theoretically apply to some usages of behavioral

analysis, if legislators were convinced they could withstand any political fallout that might result

(if public opinion supported invoking the notwithstanding clause).

Human Rights
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Federal and provincial human rights law prohibits discrimination on protected

grounds, which often include characteristics such as age, race, sex, etc. It is conceivable, in my

opinion, that behavioral analysis based on a factor that relates to the protected grounds or

grounds deemed corollary in case law could be found to have violated the persons human rights.

Access to Information & Privacy Law

Federal and provincial access to information and privacy law establishes legal

obligations with respect to the collection, use and disclosure of information, as well as rights

pertaining to accessing and/or correcting personal information kept by a public or private

organization. This legislation is particularly applicable to behavioral analysis, as the practice of

profiling is intrinsically and inherently reliant on information. Information that is collected, used

or disclosed without either the consent of the individual(s) to which it relates or expressly

authorized by legislation is, quite likely, in breach of access to information and privacy law.

Admissibility in Court

Admissibility, to date, has only been tested in cases where behavioral analysis has been

presented as an investigative technique (without being presented as evidence), as evidence on

behalf of the prosecution in a criminal trial, and as evidence on behalf of the defence in a

criminal trial. Other purposes, such as civil litigation, prevention and protective measures, etc.,

have not yet been tested. Judicial decisions in relation to the admissibility of behavioral analysis

as evidence seem to favor the prosecution, while attempts by the defence have met rigorous

opposition by the courts.

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Generally, courts have held that this type of analysis, developed as a means of

investigation, relies on the experts subjective judgment to draw conclusions as to the type of

individual (State v. Stevens). Admissibility has, in most cases, considered this view (and

avoided the conclusion that behavioral profiling isolates an identifiable individual rather than a

class or type of individuals that share a characteristic, however small the group). This principle

seems to be the single most significant standard in relation to behavioral analysis.

Part III Concluding Comments

Probabilities Not Certainties

One of the most significant factors that has been explored in previous parts is that

behavioral analysis was developed as a means of investigation and relies on the experts

subjective logic and reasoning to form a conclusion. There is no scientific formula. As such, it is

imperative to frame the conclusions of behavioral analysis as probabilities not certainties- in an

investigative context, failure to do so could mean improperly excluding a subject and thereby

reaching false results; in an evidentiary context, failure to do so could mean the wrongful

conviction of an accused, or another unjust outcome; in other contexts, failure to do so could

have similarly severe repercussions. This does not, however, dismiss that behavioral analysis can

be useful and beneficial, if applied correctly and in accordance with the right

principles/safeguards.
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Discharging Legal Obligations

It is essential that behavioral analysis, in any context or application, discharges legal

obligations, such as respecting the rights of any subject as mandated by the Canadian Charter of

Rights and Freedoms, human rights law, access to information and protection of privacy law,

admissibility rules of any court that may have competent jurisdiction in the matter, etc. Any

exception to such compliance brings the practice into disrepute, providing cause for

conscientious objectors to raise valid debate about the application and context of behavioral

analysis. There can be no variance on these principles.

Therefore, a practitioner in behavioral analysis, and their colleagues, staff, etc., must also

become experts in these other areas (Charter rights, human rights, access to information and

protection of privacy law, court admissibility rules and principles, etc.), and discharge those

corollary obligations in perfection.

Further Development

It is my view that the field requires further development in the area of ethics, particularly

critical analysis of the appropriate applications of behavioral analysis and the necessary

principles/safeguards that must be strictly observed in those applications. There must be a

balance between accessing the usefulness and benefit of behavioral analysis with protecting

against the intolerable repercussions of improper practice.

Another opportunity for further development is for the practice of behavioral analysis to

become more objective and to rely less heavily on the subjective judgement of the practitioner. It

could be argued, however, that the value of behavioral analysis rests in the experience,
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knowledge and skill of the practitioner, and I cannot dispute this argument. A balance must be

found where the benefit of the practitioners experience, knowledge and skill can be accessed,

while measuring the results in a more objective and demonstrable conclusion which can be

subjected to the criteria of scientific method, and vigorously tested. This is, no doubt, a high

order.

Appropriate Applications

I respectfully submit that behavioral analysis is most appropriate in a non-judicial

context- that is, as an investigative tool, for preventative and protective measures, and other

purposes outside of a court room. I am not convinced that behavioral analysis has sufficiently

developed to be sufficiently reliable as evidence, and the potential harm far outweighs the

potential benefit, in my opinion. The courts, generally, seem to agree, often limiting the scope of

evidence pertaining to behavioral analysis to an explanation of how a group of persons was

narrowed, and in most cases prohibiting any suggestion that behavioral analysis has identified or

otherwise recognized an individual. Accordingly, any further development should be focused, in

my opinion, on behavioral analysis as a tool for non-judicial applications and the limitations on

behavioral analysis as evidence should remain until such time as the practice can be more

objectively performed (when it no longer relies so heavily on the subjective judgement of the

expert).

Part IV Synopsis (Response to Assigned Inquiry)

The specific inquiry that was designated was Is criminal profiling sufficiently

developed to be helpful in investigations or to be accepted in courts? As established in the

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preceding information, I believe it has been sufficiently developed to be helpful in investigations

and, possibly, in other non-evidentiary applications. I do not believe, however, that is has been

sufficiently developed to be accepted as evidence in court, and I question the benefit of the

incidents where the courts have permitted it to be presented, even with the caveats that have

regularly accompanied such decisions, particularly in trials in which a jury is seated. The feasible

prejudice that could result if the evidence/testimony pertaining to behavioral analysis is given

more weight than it should be given is substantial, while the benefit is questionable and could (or

should) be acquired through other means/evidence. At the very least, the benefit to the

prosecution over the benefit to the defence should be equalized.

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