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ADMISSIBILITY OF CRIMINAL PROFILING IN INDIAN COURTS
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ADMISSIBILITY OF CRIMINAL PROFILING IN INDIAN COURTS
AUHORED BY
- AABHA
JAIN
INTRODUCTION
In June 1973, a girl was kidnapped from a Montana campsite. Taking note
of the circumstances, the two agents of FBI’s behavioural science unit- Agent
Howard and agent Patrick made a criminal profile of the perpetrator. This led
the investigators to predict that the kidnapper was a young, white male who
killed for sexual gratification and also may have kept body parts of his
victims as “souvenirs”. They also concluded that the killer might have been
arrested for other crimes. This led the investigators to the perpetrator David
Meirhofer who had killed four people in rural Montana. Also the “souvenirs”
were found at his residence.
This was the first case to be solved
by FBI by using criminal profiling and David Meirhofer became the first serial
killer to be captured by criminal profiling method.
It comes to no surprise that number
of crimes committed is increasing at a rapid rate,[1]
along with the rapidly changing and constantly evolving society. Many
scientific, technical, and other advances are being made. New techniques have
often ensured the conviction of the guilty and the acquittal of the innocent
and cast light on crimes, the truth of which might otherwise have remained
undiscovered. The researcher in this paper will focus on one such technique
called criminal profiling.
Under criminal law, before the trial
begins, it is necessary that the perpetrator is arrested. This process requires
identification of the criminal first. This identification is done by police or
other appropriate authorities by a method called investigation. Investigation
is a systematic inquiry into a criminal act. Investigation plays a crucial role
in the administration of criminal justice system. The term investigation has
been defined is the section 2(h) of the Criminal Procedure Code.[2] It
starts with the reporting of the crime. It is concluded as a successful
investigation when the inquiry has been brought to its logical conclusion. In
order to do this, all facts and physical evidence must be considered and put in
their logical arrangement.[3]
Criminal profiling is one such tool
to narrow down the field of investigation. Profiling does not provide the
specific identity of the offender. Rather, it indicates the kind of person most
likely to have committed a crime by focusing on certain behavioural and
personality characteristics. Criminal profiling not only helps in investigation
of crimes already committed but the process can also be used determine the
nexus between the data collected from the crime and characteristics of the offender.
It is a multi-disciplinary practice that cuts across many disciplines.
I.1 What is criminal profiling?
Criminal profiling can be understood
as a process through which behaviours and/or actions exhibited in a crime are
assessed and interpreted to form predictions concerning the characteristics of
the probable perpetrator(s) of that crime. It is known by various names such as
psychological profiling, offender profiling, criminal investigative analysis,
crime scene analysis, behavioural profiling, criminal personality profiling,
socio-psychological profiling and criminological profiling.
Criminal profiling has been defined
in many ways by various scholars based on their backgrounds. Ainsworth defined
offender profiling as “the process of using all the available information about
a crime, a crime scene, and a victim, in order to compose a profile of the (as
yet) unknown perpetrator.”[4]
For Davies, “offender profiling (more
technically known as Criminal Investigative Analysis) is the name given to a
variety of techniques whereby information gathered at a crime scene, including
reports of an offender's behaviour is used both to infer motivation for an
offence and to produce a description of the type of person likely to be
responsible.”[5]
Geberth sees a criminal personality
profile as “an educated attempt to provide investigative agencies with specific
information as to the type of individual who may have committed a certain crime.”[6]
Thus, criminal profiling is the
process of using available information about a crime and crime scene to compose
a psychological portrait of the unknown perpetrator of the crime.[7]
The information that the criminal profiler uses is often taken from the scene
of the crime, and takes into account factors such as the state of the crime
scene, what weapons (if any) were used in the crime, and what was done and said
to the victim. Other information used in criminal profiling can include the
geographic pattern of the crimes, how the offender got to and from the crime
scene, and where the offender lives. The actual process of profiling differs
from one profiler to another (depending on the training of the profiler), but
the aim remains the same: to deduce enough about the behavioural, personality,
and physical characteristics of the perpetrator to catch him.
Criminal profiling represents a
method for identifying general but distinguishing personal characteristics and
psychological personality traits of a yet unknown perpetrator from prior
victim–offender interactions, crime scene analysis, geographical analysis,
physical evidence, and victimology in an ongoing or closed investigation to
help law enforcement direct their investigation and allocate their resources
efficiently.[8]
I.2 Rationale for profiling
There are two operating words in criminal
profiling: modus operandi (method of
operation) and behaviour.[9]
The modus operandi could lead to clues about the offender. There is the idea
that an offender is likely to commit a particular type of crime in a particular
or similar pattern. Thus offender profiling is based on the premise that the
modus operandi may lead to clues about the perpetrator and that the crime scene
characteristics may point to the personality of the perpetrator.
Behaviour helps to predict the
personality type or the motives for the crime. Therefore, the single most
important thing that a profiler looks for at a scene of crime is anything that
may point to the personality of the offender. The rationale behind this
approach is that behaviour reflects personality, and by examining behaviour the
investigator may be able to determine what type of person is responsible for
the offense.[10] When
profiling, the profiler notes the physical description, individual traits, any
odd behaviour and remarks or records of anything that the offender said or did
during the attack. Also to be noted are information about the steps the
offender used to avoid being detected, method of killing, or the way he
approaches his victims, as well as notes about the offender's gender, age
group, race, occupation and criminal records.[11]
Psychiatrists and psychologists made
significant contributions to the early development of criminal profiling. The
profiles created by these practitioners were based largely on clinical judgment
and prevailing theories of personality and psychopathology.[12]
Even then there are issues with regard to the scientific backing and accuracy
of such Profiles.
II ACCURACY OF CRIMINAL PROFILING
The use of criminal profiling in
criminal investigations has continued, and attempts have been made, at times
successfully, to adduce profiling evidence in criminal trials.[13]
However, this has prompted calls for caution and given rise to strong
criticism, mostly on the ground that very little empirical research exists that
decisively supports profiling as a valid science.[14]
The investigators have time and again
turned to psychologists and psychiatrists to assist in complex criminal
investigations. The method of criminal profiling has evolved from the last few
decades from what was once a mere educated guesswork. Scholarly attention has
increased and seemingly scientific methodologies have been developed but still
is not totally scientific and accurate. The discipline is underpinned by an
undeveloped theoretical framework that is yet to be scientifically validated.
Also, there are inherent conceptual complexities in defining an appropriate
measurement of validity.[15]
According to Brent Snook and others,
the blunt reality is that most of the typologies used to create criminal
profiles are in fact false typologies and the majority of CP approaches are
based on an outdated theory of personality that lacks empirical support.[16]
Even the professional profilers cannot make accurate predictions.
Douglas stated that “The process used
by an investigative profiler in developing a criminal profile is quite similar
to that used by clinicians to make a diagnosis and treatment plan . . .
Investigators traditionally have learned profiling through brainstorming,
intuition, and educated guesswork.”[17] This
process is reminiscent of psychoanalytic approaches where mental health
professionals diagnose their clients through subjective interpretations and
unsupported methods. Empirical research shows that clinical experience has a limited
effect on the accuracy of psychologists’ and psychiatrists’ judgments across a
range of tasks. In addition, when clinicians’ predictions are compared against
objectively determinable hard data their error rate often exceeds their
accuracy rate.[18]
Richard Kocsis has discussed in his
book a systematic and empirically based investigation of the skills and
accuracy inherent to the proficient construction of criminal profiles.19
Some evidence suggests that criminal profiles constructed by expert profilers
are likely to possess a comparatively higher degree of accuracy in their
predictions. Additionally, contrary to rhetoric, it appears the constituent
skills most likely to be associated with the accurate construction of a
criminal profile are not aligned necessarily with popular conceptions
concerning the pre-eminence of investigative experience.[19]
There is no compelling scientific
evidence to support the positive view of CP that dominates popular opinion. CP
approaches are based on typologies that lack empirical support and are often
based on an outdated understanding of human behaviour. In addition,
professional profilers often produce predictions that are not significantly
more accurate than non-profilers. Given this state of affairs, one might wonder
why police officers continue to request the assistance of profilers.
III ADMISSIBILITY IN INDIAN COURTS
The method of criminal profiling does
help in investigation and finding the perpetrator but the question with regard
to the admissibility of these criminal profiles remains. The researcher in this
chapter would analyse whether criminal profiles can be admitted in the court of
law in the light of Indian legislations and cases.
Criminal profiles can be brought
under expert evidence which has been incorporated in the Indian Evidence Act,
1872 under Sec 45. Section 45 makes opinion of specially skilled persons
relevant. In Bal Krishna Das v. Radha Devi,[20]
“an expert was defined as a person who by his training and experience has
acquired the ability to express an opinion”. The purpose of an expert opinion
is primarily to assist the court in arriving at a final conclusion.[21]
But expert opinion cannot form the sole basis of conviction of accused,[22]
unless something inherently defective appears, court cannot substitute opinion
of an expert.[23]
In general, it may be said that there
are two distinct classes of cases in which expert testimony is admissible. In
one class of cases, the facts are to be stated by the experts and the
conclusion is to be drawn by the courts. In the other group of case the experts
states the facts and gives his conclusion in the form of an opinion which may
be accepted or rejected by the courts.[24]
Criminal profiling falls in the latter group as the experts correlate the facts
and form an opinion on the characteristics of the perpetrator.
Originally, when this section was
enacted words ‘finger impressions’ was not a part of the section. However, they
were inserted in the year, 1899 and this insertion is sufficient to indicate
that the expression science or art therein is of wide import. It is presumed
that parliament intends the court to apply to an ongoing Act, a construction
that continuously updates its working to allow for changes since the Act was
initially framed. While it remains law, it is to be treated as always speaking.
This means that in its application on any date, the language of the Act, though
necessarily embedded in its own time, is nevertheless to be construed in
accordance with the need to treat it a current law.[25]
The researcher is of the view that
despite the probability of inaccuracies, criminal profiling should be given a
shot because half a loaf is better than no bread. In D.K. Basu v. State of West
Bengal29 in the year 1997 Supreme Court expressed that there is a
need to develop scientific techniques and methods for investigation and
interrogation of accused as custodial deaths and torture is nothing else but a
blow at rule of law.
Right to speedy and fair trail is
also a fundamental right available to both accused and victim. In fact, if
trial is not quick it cannot be regarded as reasonable, just or fair and it
would fall foul of article 21[26]
and criminal profiling may help in speedy and fair trial. The concept of fair
trial and fair investigation is not only to be considered from the point of
view of liberty or right of accused only, the victim and the society also
suffers where investigation becomes a casualty.[27]
It is quite unfortunate that many
scholars confuse criminal profiling with other forms of profiling and then
claim it to be self-incriminating. Criminal Profiles are often confused with
racial profiles, intelligence profiles, DNA profiles and personality or
psychological profiles.
The use of criminal profiling
commonly arises in the context of an on-going criminal investigation into a
crime or crime series. Racial profiles, on the other hand, represent aggregated
demographic templates of the typical type of individual who is believed to
commit certain forms of crime.[28]
Intelligence profiles contain demographic
information pertaining to a particular individual, it should be recognized that
these profiles frequently represent a compilation of known and suspected
particulars regarding a specific individual who may have been previously
apprehended, wanted, or strongly suspected of having committed an offense or
offenses.[29]
DNA profiles represent the DNA coding
for some item of organic matter. The use of DNA profiles relates to the
discipline of forensic science and involves the matching of DNA samples taken
from a suspect with those found at the scene of a crime to establish whether
they are likely to originate from the offender.[30]
Criminal profiles are distinct from
personality or psychological profiles.[31]
Although criminal profiling is sourced in the disciplinary knowledge of
psychology and is still frequently referred to as psychological profiling in
some quarters, it must be understood that psychological or personality profiles
within the clinical practice of psychology often refers to the evaluation and diagnosis
of a presenting patient.[32]
In contrast, criminal profiling does not relate to the examination of a
presenting patient. Rather, it is the examination of a crime to interpret the
behaviours evident in the commission of that crime and from an analysis of
those behaviours generate a description of the individual likely to have
exhibited those behaviours.[33]
Also, the perfunctory practice of
producing documents which may throw light on any of the controversial points
does not amount to self-incrimination.38 Therefore, admissibility of
criminal profile is not violative of 20(3) and hence can be admitted by courts
of law in India.
IV CONCLUSION AND SUGGESTIONS
Criminal profiling is not as
straightforward and definite as one might expect. Despite the media glamorization
of this method, this method lacks a strong scientific backing and works on the
assumption that all the acts done were intended, overlooking the fact of other
mitigating factors can also be present. Criminal profiling has various
shortcomings and one of them being its inaccuracy. A simple mistake in the
profile can make the investigator lose track of the perpetrator totally and
therefore cannot be always relied upon.
Nonetheless, it can be worked upon to
create an efficient method ease the investigation process.
Criminal profiles can be admissible
in Indian courts under section 45 of Indian Evidence Act, 1872 as expert
evidence. Section 45 does not require complete reliability on the profile
rather it depends on the discretion of the court.
Criminal Profiling is not
self-incriminating as it is a process to identify a perpetrator and the logic
of it is being made admissible in the court. Unlike the common notion, criminal
profiling is not congruent to other scientific techniques like brain mapping,
narco-analysis and DNA profiling which require the presence of accused
beforehand.
In fact, the researcher is of the
view that criminal profiles have always been accepted in the Indian Courts of
law by the way of considering it to be circumstantial evidence. All that is
required now is proper specialisation and knowledge of criminal profiling to be
admissible in court under the banner of criminal profile itself.
[1] Statistics- Crime in India 2015,
National Crime Records Bureau, Ministry of Home Affairs. Available at- http://ncrb.nic.in/StatPublications/CII/CII2015/FILES/Table%201.2.pdf.
[2] "investigation includes all the proceedings under this Code
for the collection of evidence conducted by a police officer or by any person
(other than a Magistrate) who is authorized by a Magistrate in this behalf”
[3] Gibbons, Redmond P. “Criminal
Investigations.” Journal of Criminal Law
and Criminology (1931-1951), vol. 33, no. 1, 1942, pp. 84–94.,
www.jstor.org/stable/1136621.
[4] Peter .B. Ainsworth, Offender
Profiling and Crime Analysis, 7 (2001).
[5] Anne Davies, Rapists Behaviour: A
three Aspect Model as a Basis for Analysis and Identification of a Serial
Crime, Forensic Science International, 173 (1992).
[6] Vernon J. Geberth, Practical
Homicide Investigations: Tactics, Procedures, and Forensic Techniques, 4th
edition, 46 (1996).
[7] Damon Muller, “Criminal Profiling
Real Science or Just Wishful Thinking?”, HOMICIDE STUDIES, Vol. 4 No. 3, August
2000 234-264, 2000 Sage Publications, Inc.
[8] Id.
[9] Ebisike, Norbert, "The Use of
Offender Profiling Evidence in Criminal Cases" (2007).Theses and
Dissertations. Paper 23.
[10] John. E. Douglas., Ressler, R.K.,
Burgess, AW., and Hartman, C.R., Criminal Profiling from Crime Scene Analysis.
Behavioral Sciences and the Law, 403 (1986).
[11] Norbert Ebisike, An Appraisal of
Forensic Science Evidence in Criminal Proceedings, 44 (2001).
[12] Marcus T. Boccaccini, “Perceptions
of the Validity and Utility of Criminal Profiling Among Forensic
Psychologists and Psychiatrists,” Professional
Psychology: Research and Practice, 2006, Vol. 37, No. 1, 51–58
[13] Pascale Chifflet, “Questioning the
validity of criminal profiling: An evidence-based approach,” Australian &
New Zealand Journal of Criminology, 2015, Vol. 48(2) 238–255.
[14] Id.
[15] Id.
[16] Brent Snook & others, “The
criminal profiling illusion- What’s Behind the Smoke and Mirrors?” Criminal
Justice and Behavior, Vol. 35 No. 10, October 2008, 1257-1276, DOI:
10.1177/0093854808321528
[17] Id.
[18] Id.
[19] Id.
[20] AIR 1989 All 133
[21] Dayal Singh v. State of
Uttaranchal, 2012(3) RCR (Criminal) 949
[22] S. Rajendran v. State 2011(4)
Madras Law Journal (Criminal) 537
[23] Mahalakshmi v. State of TN,
2012(6) RCR (Criminal) 100
[24] C.d. Field, “Expert Evidence”,
Delhi: Delhi Law House, 4th edition, 2012, p. 1
[25] Statutory interpretation by
Francis Bennion, quoted in State v. S.J. Choudhary 1996 (2) RCR (Criminal) 721
[26] Mohan Lal v. State of Punjab AIR
2013 SC 2408
[27] Gurbax Singh Bains v. State of
Punjab 2013(1) Law Herald 652
[28] Tyler, T.R. and Wakslak, C.J.
(2004). Profiling and police legitimacy: Procedural justice attributions of
motive, and acceptance of police authority. Criminology, 42(2), 253–281.
[29] Bullock J.A., Haddow, G.D.,
Coppola, D., Ergin, E., Westerman, L., and Yeletaysi, S. (2005). Introduction
to homeland security. London, UK: Elsevier.
[30] Lazer, D., ed. (2004). DNA and the
criminal justice system: The technology of justice. Boston: MIT Press.
[31] Anastasi, A. (1976). Psychological
testing, 4th ed. New York: Macmillan.
[32] Morrison, J. (1995). DSM-IV made
easy: The clinician’s guide to diagnosis. New York: Guilford.
[33] Richard N. Kocsis, “Criminal
Profiling Principles and Practice,” Humana Press, 2006. 38 State of
Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808.
Article Information
ADMISSIBILITY OF CRIMINAL PROFILING IN INDIAN COURTS
Authors: AABHA JAIN
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/14
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International Journal for Legal Research and Analysis
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