We profile people all the time – not necessarily in the pernicious way that is condemned for stops and searches, but in using a person’s character or behavioral patterns as a proxy to estimate how they would conduct themselves in a particular situation. It is a form of “fast” thinking, an intuitive response that leads to a snap judgment.
Profile testimony in a criminal case, particularly against an accused, is much more problematic and consequential. In one recent case, it was determined that such evidence went too far.
James Wells was prosecuted in federal court for murder. As the appellate court explained, a government witness was proffered to
“elaborate on targeted and intended violence, workplace violence, multiple murders and the personality and other psychological characteristics of those who commit these types of crimes,” and specified that “Dr. Meloy will not be asked to give an opinion about how these characteristics apply to the known facts concerning Mr. Wells.”
United States v. Wells, Nos. 14-30146, 15-30036, 2017 U.S. App. LEXIS 25673, at *27 (9th Cir. Dec. 19, 2017). How did the appellate court respond? At length, vigorously rejecting such proof and ordering a new trial.
The appellate decision beginning by turning to the general condemnation of character as proof of conduct:
As Chief Justice Roberts recently confirmed: “Our law punishes people for what they do, not who they are.” Buck v. Davis, 580 U.S. , 137 S. Ct. 759, 778, 197 L. Ed. 2d 1 (2017)…[T]here is no question as to the Government’s purpose for offering this testimony. It explicitly stated that Dr. Meloy would testify as to the characteristics of those who commit “targeted individual multiple homicide workplace violences” in order to determine, given the lay witnesses’ testimony concerning Wells personally, “does it fit, does it not fit?”
The Ninth Circuit then reviewed profile testimony law:
This Court has “stated in dictum that testimony of criminal profiles is highly undesirable as substantive evidence because it is of low probativity and inherently prejudicial.” United States v. Gillespie, 852 F.2d 475, 480 (9th Cir. 1988)… “Although “profile” evidence is not per se inadmissible, it is only permitted in narrow and limited circumstances, such as: (1) background evidence, Gomez-Norena, 908 F.2d at 501 (“[A]dmitting drug courier profile testimony for [the] limited purpose [of providing background material] greatly reduces the potential for unfair prejudice and thus cannot amount to plain error.”); (2) investigative tools, United States v. Carter, 901 F.2d 683, 684 (8th Cir. 1990) (drug courier profiles are investigative tools, not to be admitted as evidence of guilt); or (3) rebuttal evidence, when a party “opens the door” by introducing potentially misleading testimony, Beltran-Rios, 878 F.2d at 1211-12 (profile evidence admissible in rebuttal where defendant initially “opened the door” by emphasizing that he did not fit the stereotype of a drug smuggler).
Finally, the Court of Appeals repudiated the Government claim that the evidence was responsive to the defendant’s good character testimony. “This argument lacks merit. This Court has cautioned that the ‘opening the door’ doctrine is not so capacious as to allow the admission of any evidence made relevant by the opposing party’s strategy, without regard to the Federal Rules of Evidence.”
The message? Don’t profile.