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Consider using 'profiler' testimony.

In premises liability cases involving inadequate security, it can be difficult to establish grounds for expert testimony that discusses the likelihood of security measures deterring crime. When the perpetrator has not been identified, plaintiffs have occasionally been able to establish the foundation for this kind of causation testimony by bringing in so-called profilers.

The term "profiler" originates with the Behavioral Sciences Unit of the FBI--a division developed to help identify and apprehend criminals by creating profiles of likely perpetrators based on the factual evidence taken from crime scenes.

Some former FBI profilers now regularly help lawyers prove causation in inadequate-security cases. They examine minute details of an incident and then develop a psychological profile of the perpetrator, which can be used to determine whether the person more likely than not would have been deterred by additional security measures. For example, if the perpetrator took great care to hide his or her identity from the victim--say, by wearing a mask or using gloves--a profiler may use those details to deduce that that the perpetrator was especially concerned about later identification and apprehension, making him or her more likely to be deterred by security measures.

Defendants have sometimes been successful in challenging the admissibility of profiler testimony, but to the extent that profiling techniques can address the question of deterrence--beyond mere speculation--the science has merit.

Corey Gordon

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Title Annotation:Good Counsel
Author:Gordon, Corey
Article Type:Letter to the editor
Date:May 1, 2007
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