Criminal Profiler Testimony: Not Reliable, Relevant, or Admissible
In State v. Huckabee, the S.C. Court of Appeals ruled that criminal profiler testimony is not relevant under Rule 401, its prejudicial impact outweighs its probative value under Rule 403, and, in this case, it was not harmless error as to most of the defendant’s convictions. The Court reversed the defendant’s convictions for first degree CSC with a minor, inflicting great bodily injury on a child, and homicide by child abuse. The Court did affirm the defendant’s conviction for unlawful conduct toward a child and held that the profiler’s testimony, although inadmissible, was harmless error as to the unlawful conduct conviction only.
What is a Criminal Profiler?
The SLED agent in this case was admitted by the Court as an expert in “Crime Analysis and Crime Scene Reconstruction.” As the prosecutor clarified at the trial of the case, “Crime analysis” means profiler. Profilers, made famous by television crime shows, can assist in the investigation of cases by identifying likely suspects based on patterns found in previous similar cases. They sometimes will actively participate in the investigation of a case by visiting the crime scene, conducting re-enactments, and participating in the interviews of suspects.
All of this is well and good, as long as they are following the rules and not violating a suspect’s rights in the process. The problem usually arises when the prosecutor does not have a strong case at trial and decides to call the profiler to testify in front of a jury. Often their testimony will consist of presenting a hypothetical scenario that is not based in actual factual observations or personal knowledge. For example, “in a crime like this, you would typically see . . .” followed by a detailed, blow by blow, often shocking, manufactured account of what might have happened. In other cases, such as Huckabee, the testimony includes the characteristics of a typical offender who would commit a crime similar to the one the defendant is charged with. Of course, the “typical offender” profile will also match the defendant’s characteristics.
Why Isn’t the Testimony Admissible?
First of all, prosecutors know that the testimony is not admissible and that is prejudicial. It is not relevant and it is based on speculation. Prosecutors tend to call the profiler as a witness when they know they don’t otherwise have enough evidence and they want to buttress their case. We can’t guess a person into the penitentiary, but that’s what is happening when a prosecutor puts a SLED agent on the stand to talk about how a crime “might have happened” or to talk about the likely characteristics of a typical offender. The relevant rules of evidence are Rules 401 and 403:
“‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 401, SCRE. Rule 403 states, in pertinent part, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .” “Unfair prejudice means an undue tendency to suggest a decision on an improper basis.”
Profiler testimony tends to be what is called “propensity evidence,” which is not permitted. In 2012, the S.C. Supreme Court held in State v. Tapp that the trial court erred by admitting profiler testimony without first determining its reliability. The Court in Tapp dodged the ultimate question and declined to say whether the testimony was sufficiently reliable (it was not), leaving the question for another case and another day.
We can expect some prosecutors to continue to attempt to use profiler testimony, because it is effective. Jurors love profilers who, with the help of television crime dramas that most people have seen, enjoy a sort of law enforcement rock-star status. Also, this case was decided by the Court of Appeals, which means that the S.C. Supreme Court may still weigh in on the issue.