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Week 7 Discussion – D. Wessels
Dana Wessels 
If a criminal profile is meant to do more than narrow a potential suspect pool and be used as evidence against an individual, it needs to meet the same criteria as any other piece of evidence admitted. While there is some inherent subjectivity in the creation of a profile, the limitations must be acknowledged for the benefit to be realized.
Bosco et al. (2010) describes the general criteria for scientific evidence being presented in a courtroom according to the Daubert standard as it related to Daubert v. Merrell Dow Pharmaceuticals in 1993. In order for that evidence to be considered admissible, it needs to be reliable, be able to withstand critical peer review and publication (i.e. the most recent and reliable research), indicate the error rate in analyses, be generally accepted, reach the general standard for evidence given by an expert, and be clearly applicable to the case as hand. Criminal profiles have been presented by FBI agents, psychologists and psychiatrists and criminologists considered ‘experts’ to give their opinions and interpretations of an offender’s motivation, modus operandi specific to an individual, and linkage between multiple crimes potentially committed by the same offender.
Experts may not be allowed to testify in courts, or their opinions may be argued to be improperly admitted, if said expert is not considered qualified to speak on the topic. For example, in 2002 Angela Garcia was convicted of two counts of aggravated murder for the deaths of her two daughters who had died from smoke inhalation in a house fire, of which Garcia was the only survivor. It was determined that the fire had intentionally been set for the purpose of collecting insurance money while the daughters had been found under suspicious circumstances, and the state presented expert witnesses who spoke to the fire’s origin (State v. Garcia, 2002). A total of six cause of origin experts had concluded that that there were two separate fires intentionally started in the house, and the presence of the use of an accelerant indicated arson. However, Garcia’s first expert claimed that lit candles in the household had fallen over to start the fire, while another expert testified that the cause of the fire could not be determined. These two experts gave their opinions that there was no conclusive proof that the fires had been started intentionally due to the lack of proof that accelerants had been used.
Mark McCrary and Ronald Saunders were two of the expert witnesses presented by the State. McCrary, a crime-scene analyst, testified that the fire was characteristic of an “arson for profit” incident in his expert opinion (State v. Garcia, 2002, Tr. 2771-2772). Saunders, a forensic auditor, had similarly given testimony that Garcia had a financial motive for intentionally starting these fires. Garcia claimed the court should never have allowed their testimonies because they did not qualify as experts (although what would have been required to allow them to reach that expert status is not clear). While McCrary had worked within the FBI for 25 years, he admitted he was not an arson expert. Never the less, he had examined the totality of the evidence, to include witness testimony and insurance claims made by Garcia, and testified that the categorization of arson in this case was, in his opinion, most consistent with arson for profit. Saunders testified that he reviews crimes to determine if there is a financial motive; he also testified that he believed there was such a motive for Garcia. According to the appellate court transcript, their testimonies were considered highly improper because the conclusions they gave should have been for the jury to conclude. Additionally, they claimed their testimonies merely compounded the other evidence presented.
Yet, Garcia never disputed the evidence proving she had taken out a policy on the house and her two daughters just before this fire. She also never disputed inquiring about transferring custody of her two daughters to her sister, most likely because having them in her custody would have impeded her joining the Navy. Evidence also substantiated her neighbor’s eyewitness testimony that movers had moved furniture out of the house in the days preceding the fire. The two deceased daughters were also found deceased with cords tied around their limbs. These pieces of evidence were enough to collectively conclude that McCrary and Saunders’ testimonies had not improperly altered the outcome of the trial. The court ended up finding reasonable grounds for the appeal. Ultimately, Garcia accepted a plea deal many years later admitting to arson and involuntary manslaughter in order to obtain a reduced sentence.
There is a lot of controversy around this case, but it’s interesting to specifically examine the two expert witnesses who testified and were later considered improperly admitted. Despite years working in the FBI, McCrary’s testimony was appealed because he wasn’t an ‘arson’ expert.  Saunders was a forensic auditor, but it was also claimed that he could not be considered an expert.
It was still determined that these two expert witnesses’ testimony had not been enough to improperly invade the province of the jury because there was enough additional evidence against the defendant that couldn’t be denied or disproven. However, the fact that their contributions were considered improper due to their lack of qualifications as an expert is a completely predicable objection on the defendant’s part as their testimony refutes her claims that the fire was accidental. This makes one wonder who would have the credentials necessary to put forth expert testimony against the defendant; it seems completely foreseeable that any expert who testifies against the defendant will be rejected if their opinion implies guilt.
This was an example of a case where there was no shortage of eyewitness testimony. There was also sufficient forensic evidence for six expert witnesses to testify that the fire had two points of origin, although the use of an accelerant is contested (Stave v. Garcia, 2002). If an expert is called to testify in court, their backgrounds and work/research experience should be consistent with the questions they are going to be asked, such as was this fire started intentionally? Why were there two points of origin? Was there a financial motive for this fire? It is almost a foregone conclusion that the defense will reject their opinion, so the expert must also be able to justify why they are coming to those conclusions. No expert witness will, or should, be able to simply give their opinion to the jury; just as any evidence presented in court needs to be explained and defended, those testifying to any of the aspects determined with a criminal profile need to be prepared to do so according to the Daubert standard.  
I believe profiles in court should be admitted if they can be presented in a manner consistent with the Daubert standard; the background research, acknowledgement of potential error, description of standards and applicability to crime all need to be documented and prepared beforehand in case the testimony is called into question. Despite the fact that the defendant in a case will almost inevitably reject the opinion of a profiler, the reasoning provided beforehand should give that profiler’s opinion enough of a foundation upon which to stand (and if it doesn’t, this indicates that the conclusion may be too uncertain to hold much weight). Additionally, the profile needs to be consistent with the forensic evidence collected from the scene. The facts of the case are not to be interpreted to fit a narrative; they need to be the unbiased starting point upon which a profile is based.
REFERENCES
Bosco, D., Zappalà, A., & Santtila, P. (2010). The admissibility of offender profiling in courtroom: A review of legal issues and court opinions. International Journal of Law and Psychiatry, 33(3), 184–191. https://doi.org/10.1016/j.ijlp.2010.03.009
State v. Garcia (Court of Appeals Ohio 2002). Supreme Court of Ohio. Retrieved from https://www.bing.com/ck/a?!&&p=4c16b318b637fe65JmltdHM9MTcxODU4MjQwMCZpZ3VpZD0yNTRhY2ZlMS0wZDRiLTZmOWMtMTM3MC1kYjcxMGM5YjZlZjQmaW5zaWQ9NTE5OQ&ptn=3&ver=2&hsh=3&fclid=254acfe1-0d4b-6f9c-1370-db710c9b6ef4&psq=2002+garcia+ohio&u=a1aHR0cHM6Ly93d3cuc3VwcmVtZWNvdXJ0Lm9oaW8uZ292L3JvZC9kb2NzL3BkZi84LzIwMDIvMjAwMi1PaGlvLTQxNzkucGRm&ntb=1.