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<\/p>\nWe profile people all the time \u2013 not necessarily in the pernicious way that is condemned for stops and searches, but in using a person\u2019s character or behavioral patterns as a proxy to estimate how they would conduct themselves in a particular situation. \u00a0It is a form of \u201cfast\u201d thinking, an intuitive response that leads to a snap judgment.<\/p>\n
<\/p>\n
Profile testimony in a criminal case, particularly against an accused, is much more problematic and consequential.\u00a0 In one recent case, it was determined that such evidence went too far.<\/p>\n
James Wells was prosecuted in federal court for murder.\u00a0 As the appellate court explained, a government witness was proffered to<\/p>\n
“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.”<\/p>\n
United States v. Wells<\/u>, Nos. 14-30146, 15-30036, 2017 U.S. App. LEXIS 25673, at *27 (9th Cir. Dec. 19, 2017).\u00a0 How did the appellate court respond?\u00a0 At length, vigorously rejecting such proof and ordering a new trial.<\/p>\n
The appellate decision beginning by turning to the general condemnation of character as proof of conduct:<\/p>\n
As Chief Justice Roberts recently confirmed: “Our law punishes people for what they do, not who they are.” Buck v. Davis<\/em>, 580 U.S. \u00a0\u00a0\u00a0, 137 S. Ct. 759, 778, 197 L. Ed. 2d 1 (2017)\u2026[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?”<\/p>\n The Ninth Circuit then reviewed profile testimony law:<\/p>\n This Court has “stated in dictum that testimony of criminal profiles<\/strong> is highly undesirable as substantive evidence because it is of low probativity and inherently prejudicial.” United States v. Gillespie<\/em>, 852 F.2d 475, 480 (9th Cir. 1988)\u2026 “Although “profile<\/strong>” evidence is not per se<\/em> inadmissible, it is only permitted in narrow and limited circumstances, such as: (1) background evidence, Gomez-Norena<\/em>, 908 F.2d at 501 (“[A]dmitting drug courier profile<\/strong> 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<\/em>, 901 F.2d 683, 684 (8th Cir. 1990) (drug courier profiles<\/strong> 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<\/em>, 878 F.2d at 1211-12 (profile<\/strong> evidence admissible in rebuttal where defendant initially “opened the door” by emphasizing that he did not fit the stereotype of a drug smuggler).<\/p>\n Finally, the Court of Appeals repudiated the Government claim that the evidence was responsive to the defendant\u2019s good character testimony.\u00a0 \u201cThis argument lacks merit. This Court has cautioned that the ‘opening the door’ doctrine is not so capacious as to allow the admission of any<\/em> evidence made relevant by the opposing party’s strategy, without regard to the Federal Rules of Evidence.\u201d<\/p>\n The message?\u00a0 Don\u2019t profile.<\/p>\n","protected":false},"excerpt":{"rendered":" We profile people all the time \u2013 not necessarily in the pernicious way that is condemned for stops and searches, but in using a person\u2019s character or behavioral patterns as a proxy to estimate how they would conduct themselves in a particular situation. \u00a0It is a form of \u201cfast\u201d thinking, an intuitive response that leads<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2,3,6,7,11],"tags":[],"coauthors":[238],"class_list":["post-2119","post","type-post","status-publish","format-standard","hentry","category-advocacy","category-advocacy-and-evidence-blog","category-criminal-law","category-evidence","category-trial-advocacy"],"yoast_head":"\n