A qualitative analysis of mock jurors' deliberations of linkage

Journal of Investigative Psychology and Offender Profi ling

J. Investig. Psych. Offender Profi l.

7 : 165–183 (2010)

Published online 29 March 2010 in Wiley InterScience (www.interscience.wiley.com). DOI : 10.1002/jip.119

A Qualitative Analysis of Mock Jurors’ Deliberations of

Linkage Analysis Evidence

ANGELINA CHARRON 1 and JESSICA WOODHAMS 2, *

1 School of Psychology, University of Leicester, Leicester, UK

2 School of Psychology, University of Birmingham, Birmingham, UK

Abstract

Evidence about a suspect’s behavioural similarity across a series of crimes has been presented in legal proceedings in at least three different countries. Its admission as expert evidence, whilst still rare, is becoming more common thus it is important for us to understand how such evidence is received by jurors and legal professionals. This article reports on a qualitative analysis of mock jurors’ deliberations about expert linkage analysis evidence. Three groups of mock jurors (N

=

20) were presented with the prosecution’s linkage analysis evidence from the USA State v. Fortin I murder trial and expert evidence for the defence constructed for the purposes of the study. Each group was asked to deliberate and reach a verdict. Deliberations were video-recorded and subject to thematic content analysis. The themes that emerged were varied. Analysis suggested that the mock jurors were cautious of the expert evidence of behavioural similarity. In some cases they were sceptical of the expert. They articulated a preference that expert opinion be supported using statistics. Additional themes included jurors having misconceptions concerning what is typical offender behaviour during rape which suggests there is a need for expert linkage analysis evidence regarding behavioural similarities and the relative frequencies of crime scene behaviours. Copyright © 2010 John Wiley & Sons, Ltd.

Key words: expert witness testimony; case linkage; comparative case analysis; jury

INTRODUCTION

Linkage analysis (also referred to as case linkage analysis and comparative case analysis) is a process by which behaviourally similar crimes are identifi ed that are suggested to have been committed by a common offender (Bennell & Canter, 2002; Turvey, 2002; Woodhams & Grant, 2006). It can be used to link unsolved crimes with solved crimes, for which there is an identifi ed suspect (Bekerian & Jackson, 1997; Grubin, Kelly, & Brunsdon,

2001; Hazelwood & Warren, 2003). It tends to be utilised when there is an absence of

*Correspondence to: Jessica Woodhams, School of Psychology, University of Birmingham, Edgbaston,

Birmingham, B15 2TT, UK.

E-mail: j.woodhams@bham.ac.uk

Copyright © 2010 John Wiley & Sons, Ltd.

166 A. Charron and J. Woodhams physical evidence, such as DNA (Grubin et al ., 2001; Hazelwood & Warren, 2003).

Whilst, its underlying assumptions and the processes involved have been described elsewhere (Hazelwood & Warren, 2003; Woodhams, Bull, & Hollin, 2007; Woodhams,

Hollin, & Bull, 2007), a brief description is included here.

The fi ner procedures when linking crimes through behavioural similarity can differ between jurisdictions in terms of varying degrees of reliance on databases of crimes and/ or investigative and analytical experience. However, broadly speaking, it involves collating detailed information about the offender’s behaviour in the crimes being analysed and the circumstances of the crime. Using this detailed information, the person compiling the linkage analysis identifi es similarities and dissimilarities in offender behaviour between the offences. Where similarities are identifi ed their uniqueness and possible weight is considered. For example, where two crimes share less common behaviours this would be stronger evidence that the offences in question were committed by the same person compared to where the shared behaviours are relatively common in a population of a particular crime type. It should also be noted that whilst separate offender behaviours might be common in the population of crimes, they could be rare when observed in combination

(Hazelwood & Warren, 2003).

The primary use of this form of behavioural analysis is to inform investigative decision making, however, some recent publications have reported the use of behavioural similarity in offending behaviour in legal proceedings in the United Kingdom, the United States, and South Africa (Hazelwood & Warren, 2003; Labuschagne, 2006; Meyer, 2007; Woodhams & Toye, 2007). Whilst the presentation of expert evidence of behavioural similarity is relatively rare, there are now several examples of its use in legal proceedings, one of which dates back 50 years.

As described in Woodhams and Toye (2007), evidence of similarity in the modus

oper andi of the murders of three girls was admitted in the English case of R v. Straffen in 1952. The defendant was in custody in a secure hospital for the murder of two young girls in Bath, England, however he absconded and during his time at large, another young girl was murdered. The modus operandi for this murder was similar to those previously comm itted by the defendant and thus the prosecution introduced evidence of this similarity to establish the identity of the perpetrator. The defendant was subsequently convicted of this third murder. On appeal, the decision to admit the evidence of behavioural similarity was upheld.

More recently, evidence of behavioural similarity was presented by Robert Hazelwood in the trial of Steven Fortin (State v. Fortin I, 2000). Steven Fortin was arrested for the attempted murder of a state trooper (Offi cer Gardner) in Maine and was later extradited for the alleged murder of a woman (Padilla) in New Jersey. Hazelwood was allowed to testify as to the behavioural similarity between the two crimes but not as to whether the defendant was responsible for both. At the time, the Supreme Court of New Jersey also ruled that Hazelwood’s testimony should be supported with a reliable database, which would be accessible to the defence, and that a limiting instruction should be given by the judge to the jury in the subsequent trial to explain to the jury the purpose of the other crimes evidence being presented (State v. Fortin I, 2000). Steven Fortin was convicted of capital murder and was sentenced to death by lethal injection in 2001, however on appeal his conviction was reversed because Hazelwood’s testimony had been given without the support of a ‘reliable database’ and because the voir dire process was deemed to have been inappropriate (State v. Fortin, 2004). The Supreme Court of New Jersey considered

Steven Fortin’s case again in 2006 (State v. Fortin II, 2007). On this occasion the prosecu-

Copyright © 2010 John Wiley & Sons, Ltd. J. Investig. Psych. Offender Profi l.

7 : 165–183 (2010)

DOI : 10.1002/jip

Deliberations of Linkage Analysis Evidence 167 tion were not seeking to present Hazelwood’s linkage analysis expert testimony. Instead, they attempted to present evidence from the Federal Bureau of Investigation’s (FBI) Violent

Criminal Apprehension Program (ViCAP) database which had identifi ed similarities between the Padilla and Gardner crimes. The motion judge ruled that this evidence was inadmissible because Hazelwood had not relied on this database in forming his opinions, because the details of the Maine case were only inserted into the database to form an ‘inexorable link between the Gardner and Padilla cases’ and thus not through routine pro cedures, and because ViCAP was not a complete record of all violent sexual assaults committed since 1984. In addition, the motion judge forbade all testimony about behavi oural similarities other than that relating to bite-marks on the victims’ bodies because the other behaviours ‘were common to violent sexual assaults and added little to the showing of a signature crime’. The Supreme Court considered these rulings and upheld most. However, the Supreme Court argued that the bite-mark evidence needed to be presented in the context of the crimes and thus the behavioural details about the sexual assault on Offi cer Gardner could not be kept from the jury. They ruled that to ensure the jury appropri ately considered the bite mark evidence, that a limiting instruction be used that cautioned the jury that the similar behaviours (other than the bite marks) were not being presented by the prosecution as signature evidence and thus should not be considered in this way. Steven

Fortin was re-tried for the New Jersey murder and was convicted of murder in November 2007. However, leave for appeal was granted in 2008 (State v. Fortin, 2008).

More recently, evidence of behavioural similarity has also been admitted in the case of the State of California v. Prince (2007, as cited in Turvey, 2008) which relates to a series of murders.

Labuschagne (2006) reported on the use of linkage analysis evidence in the case of the

Newcastle serial murderer in South Africa (South Africa has an adversarial system where the State and Defence can both present a case and cross-examine witnesses, however, there is not a jury.). This evidence was presented to assist the presiding offi cer of the court to decide whether the same individual was responsible for the series of murders. The suspect had admitted to a member of the public that he was responsible for the murders and he had been identifi ed for the fi rst two crimes in the alleged series through eyewitness identifi cations. For the latter two crimes in the series there was no such evidence. However, the linkage analysis evidence was used to charge the suspect with these two additional murders. The accused was subsequently found guilty of all four murders. Linkage analysis evidence has more recently been presented in the prosecution of the Quarry Murder Series in South Africa which relates to the murders of 16 women. Labuschagne (G. Labuschagne, personal communication, 12 September 2009) provided a linkage analysis report regarding the behavioural similarities and distinctiveness of the crimes (including victimology, geographical location and offence behaviours). This evidence was used to convict Richard

Jabulani Nyauza of all 16 murders. In eight of the sixteen offences there was no direct evidence linking the accused to the crimes. He was sentenced to 16 life terms and a further

140 years imprisonment in November 2007. A linkage analysis report authored by Labuschagne was also admitted in the case of Tommy Williams. It was alleged the defendant had committed three murders. The report highlighted three unique similarities between the three murders which were; that all three were vulnerable victims, that in all three cases the bodies had been tampered with after death, and that all three victims had been killed through strangulation (G. Labuschagne, personal communication, 19 November 2009).

Tommy Williams was convicted of all three murders and was sentenced in November

2009.


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168 A. Charron and J. Woodhams

The admissibility of linkage analysis evidence

Despite such evidence being presented in legal proceedings, questions have been raised as to whether this will become common practice. Ormerod and Sturman (2005) discuss such comparative crime scene analysis evidence and note that the acceptance of such evidence will depend on a number of issues. The court would need to judge the evidence as relevant, that the method arriving at the evidence is reliable, that the evidence is not too prejudicial, and that it is outside the knowledge of the juror. When discussing profi ling evidence, Ormerod and Sturman (2005, p. 185) state “Profi le evidence is very prejudicial when it is being used to draw links between the offender and the accused”. They go on to explain that profi ling evidence would need to go beyond identifying a type of person from crime scene behaviour for it to be admissible. Similar reasoning can be applied to linkage analysis evidence. Ormerod and Sturman’s quote would suggest that a relatively high degree of behavioural similarity and distinctiveness would need to be demonstrated in a linkage analysis report for its probative value to outweigh its potential prejudicial effect. Ormerod and Sturman (2005) also note that any evidence which includes presenting previous convictions of the defendant can prejudice jurors towards him/her with the implication being that he/she is more likely to have committed the given offence because he/ she is a bad person (State v. Fortin I, 2000). Such a scenario can occur when the prosecution attempt to link an offence(s) that is unsolved to an offence or a series of offences for which the defendant has already been identifi ed. Just such evidence was presented in the case of Steven Fortin and concerns regarding its prejudicial effect prompted direction from the Supreme Court of New Jersey that a judge’s limiting instruction should be used. The intention of this was to explain to the jury that the evidence of behavioural similarity was being presented to convince them that the same person was responsible for the two crimes in question (i.e., to prove the identity of the perpetrator) and that they were not to infer that the accused was a bad person with a propensity for crime (State v. Fortin I, 2000).

Ormerod and Sturman (2005) explain that it is quite possible that linkage analysis evidence would be deemed relevant but for such evidence to be admissible it would have to demonstrate that not only was the offender behaviour in the two offences very similar but also suffi ciently ‘bizarre’ for it to be characteristic of one person. They raise the question of whether a psychologist is needed to point out the bizarreness of behaviour to a jury.

However, they go on to state ‘The real possibility is that there are some bizarre signaturelike traits that can be identifi ed by a profi ler in his analysis of the crime scenes but not by others lacking psychological expertise’ (p. 188). This suggests expert evidence of linkage analysis would be needed in some cases.

How jurors might receive expert linkage analysis evidence

As we have seen, despite concerns about the potential admissibility of linkage analysis evidence, it is being presented in legal proceedings and the rate at which it is appearing seems to be increasing, at least in some jurisdictions. Whether juries understand such evidence and how they might use it in their decision-making has yet to be investigated.

As noted at the start of this article, the fi ner procedures in the linkage analysis process can vary between jurisdictions and thus we might expect to see variation in the content of such expert reports. It is therefore important to examine how jurors receive such evidence and identify any characteristics of reports with which they might experience diffi culty.

Devine, Clayton, Dunford, Seyring and Pryce’s (2001) review of studies, conducted between 1955 and 1999, that used experimental manipulation to investigate how jurors


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Deliberations of Linkage Analysis Evidence 169 receive expert evidence, provides some indication of what we might expect to fi nd. They concluded from their review that expert evidence has little or no effect on jury decisionmaking. Looking at investigative psychology expert evidence specifi cally, a study was conducted of mock jurors’ decision making with regards to profi ling evidence (which included an element of linkage analysis as well as testimony that the defendant fi t the profi le of a sexual predator) (Paclebar, Myers, & Brineman, 2007). This too found that the profi ling evidence contributed little to the verdicts given.

Based on these past studies, we might therefore expect jurors to make little use of linkage analysis expert testimony in their decision-making. One reason why this could occur is due to stereotypes about crimes and how they unfold. As noted above, linkage analysis reports pertain to shared similarities between two or more crimes and also the relative frequency of crime scene behaviour in a given population of crimes (e.g. rapes, burglaries). As described by Norton and Grant (2008), in terms of rape, the media’s focus on sensational and violent sexual offences may result in the general public (and jurors) possessing rape stereotypes leading to expectations that all sexual offences will be very violent. If this hypothesis is correct, jurors may dismiss expert linkage analysis evidence

(such as that prepared by Hazelwood for State v. Fortin) which claims that two crimes are behaviourally similar based on evidence of shared extreme violent behaviour by the offender. The prevalence of rape stereotypes in society might mean that jurors will disregard expert testimony that is not congruent with their lay knowledge of how a rape typically unfolds or how common particular crime scene behaviours are.

If jurors do consider linkage analysis evidence in their deliberations, there exists the additional question of how they will use it. In cases where the defendant has been previously charged with or convicted of a crime in the proposed series do jurors use the linkage analysis evidence as intended, to infer that the same offender might be responsible for two or more crimes, rather than inferring that the offender is a bad person due to knowledge that he/she has committed previous offences. As was the case with the Fortin trials, judge’s limiting instructions could be used to remind a jury of the purpose of the evidence and how it should be used. However, previous research suggests that judges’ instructions are not always heeded by jurors (Devine et al ., 2001; Fein, McCloskey, &

Tomlinson, 1997; Lieberman & Arndt, 2000; Steblay, Hosch, Culhane, & McWethy,

2006) or they might not be understood (Jackson, 1996; Sullivan & Amar, 1996). Such concerns about whether jurors could abide by a limiting instruction were raised by Justice

Long in the case of Steven Fortin (State v. Fortin I, 2000). The current study is a qualitative study and thus, it did not intend to investigate the effect of any experimental manipulation on the presentation of judges’ instructions. However, in light of the decision in the

Fortin trials to mitigate the potential prejudicial effect of the linkage analysis evidence with limiting instructions, the current study did investigate whether any differences in the themes identifi ed from the jurors’ deliberations emerged in the presence or absence of limiting instructions.

How linkage analysis evidence is received by a jury may in part depend on their perception of the expert witness. For example, jurors are reported to be cynical of experts they perceive to be ‘hired guns’ (Boccaccini & Brodsky, 2002; Devine et al ., 2001). In the

United Kingdom, linkage analysis is conducted by Behavioural Investigative Advisors who are employed by the National Policing Improvement Agency (Almond, Alison, &

Porter, 2007). Similarly in the Fortin trial, Robert Hazelwood, the author of the linkage analysis report, was a retired FBI profi ler. In the case of California v. Prince (2007, as cited by Turvey, 2008), the expert testifying was an FBI agent. Professor Labuschagne,


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170 A. Charron and J. Woodhams who has authored several linkage analysis reports for the South African courts, is employed by the South African Police Service. It is possible that the employer of such experts might affect how they are perceived by jurors.

In contrast to the research which suggests jurors can be sceptical of expert evidence, other research cautions that jurors might accept it unquestioningly (Vidmar, 2005), or that they might struggle to differentiate reliable from unreliable expert evidence particularly if it relates to research fi ndings (Kovera, Russano, & McAuliff, 2002). As noted above, a body of research investigating the underlying assumptions of linkage analysis has been growing; therefore, it is not implausible that expert witness reports regarding linkage analysis might refer to such research regarding its reliability and validity.

Rationale

Since linkage analysis has been presented in legal proceedings and is being considered by jurors, although, at present, only on rare occasions, it is important to investigate how jurors understand and use expert evidence of linkage analysis. Whilst research on linkage analysis and its underlying assumptions has been growing (for a review see Woodhams, Hollin,

& Bull, 2007), there exists only one study of mock jurors’ decision-making in terms of linkage analysis (Paclebar et al ., 2007), and this was not able to investigate how expert linkage analysis evidence might be understood, used and received by a jury. Using the linkage analysis expert testimony from the Fortin I trial and a mock jury paradigm, the current study investigated this. Since the purpose of qualitative research is to understand how ‘people make sense of the world and how they experience events’ and because it is particularly appropriate when asking questions about processes (Willig, 2001, p. 9), a qualitative design was adopted.

METHOD

Participants

Three groups of participants took part in the study in 2005. Participants were sought from a social network consisting of professional adults by the fi rst author who was also a member of the same social network. Whilst some participants were previously acquainted, others were strangers to one another. An initial pilot study was conducted with fi ve participants to identify if there were any problems with the materials used in the study. No problems were identifi ed therefore the deliberations from the pilot study are also included in the analysis presented below. The mean age of the participants in the pilot study was

48 years (SD

=

10.3 years). The two men and three women were all of British nationality.

All fi ve participants in the pilot study were employed in skilled occupations.

The remaining 15 participants were divided into two groups of participants. Nine of the participants were female and six were male. The participants’ nationalities were American

( n

=

4), Canadian ( n

=

5), British ( n

=

4), French ( n

=

1), and Irish ( n

=

1). Their occupations were teachers ( n

=

4), corporate executives ( n

=

5), engineer ( n

=

1), commercial banker ( n

=

1), and homemakers ( n

=

4). Participants’ ages ranged from 29–54 years (M

=

39.8 years, SD

=

5.8 years). Participants were allocated to the two groups depending on their availability. Group one, who received the judge’s instructions, consisted of seven females and two males. Group two consisted of two females and four males.


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Deliberations of Linkage Analysis Evidence 171

Design

A qualitative methodology was employed to identify themes from the mock jurors’ deliberations. By employing a more representative participant group (professional adults), more realistic courtroom methodology (delivery of the case material via video presentation by a mock judge, oral delivery of the expert reports) and by observing the mock juries’ deliberations (via videotape), the current study represents what has been called stage two jury research (Diamond, 1997, as cited in Bornstein, 1999). In line with active jury recommendations, oral presentation of the expert testimonies and judge’s instructions was accompanied by written copies to aid recall during deliberations. To refl ect procedures in

England and Wales (Her Majesty’s Court Services, 2008), note taking and the asking of questions during trial presentation and deliberations were also permitted. As noted above, the intention of the study was not to conduct an experimental manipulation of variables.

However, to explore whether the use of judges’ limiting instructions might affect the themes that were identifi ed across the three groups, two groups were given judge’s limiting instructions (the pilot group and group one) and one was not (group two). The instructions were delivered orally by a mock judge and were followed up with a written copy for the deliberation stage.

Materials

The case (State v. Fortin I, 2000) chosen for the study was a well-publicised murder trial in the United States. The case materials were developed using key information gathered from published papers (Booth, 2000; Hazelwood & Warren, 2003; Risinger & Loop,

2002). Some minor amendments were made to the murder and rape case details to ensure they were appropriate to the country where the study was held. The jurors were informed that the case was based on a past crime, but that certain aspects had been changed. The case details were presented to the participants by video by a male African- American actor, performing as the judge, dressed in appropriate legal clothing. The judge’s instructions were developed from the original Supreme Court recommendations in the real trial

(reported in State v. Fortin I, 2000) and were modifi ed by a University Law tutor for the study, in order to ensure that the wording was consistent with a British court. The judge’s instructions were delivered to the participants in the pilot group and group one by video presentation. They stated:

“The prosecution is going to present testimony to you regarding a crime committed in another city that the defendant, in this case, was convicted upon. The prosecution is being allowed to introduce this testimony to you, not in order to show the defendant in a bad light, nor to attack the character of the defendant, but rather for a much more specifi c and restricted purpose . . . But I must warn you that if you, as a jury, decide that the similarities between the two crimes are not so great as to entitle you to infer that they were committed by the same person, then you must afterwards disregard the evidence that is now going to be put to you. In particular, you must not adversely judge the character of the defendant based on the evidence that you are about to hear. Neither must you conclude that, because the defendant committed a crime in another city, this means he is more likely to have committed the crime with which he has been charged in this Court. That is not the purpose of putting the evidence to you, and if you were, wrongfully, to use it in that way, to reach such conclusions, then that would be both illogical and legally unsound”.


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All groups received a reasonable doubt caution, which was again delivered by video presentation. This stated:

“You have now reviewed the relevant facts of this case and I will ask you to now go and deliberate together in order to reach a decision as to the defendant’s guilt.

Please elect a spokesperson that should feed back to the researcher your unanimous decision. You must bear in mind reasonable doubt in reviewing the evidence of this case. If after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if having a conviction, it is one which is not stable . . . then the charge is not proved beyond every reasonable doubt and you must fi nd the defendant not guilty, because the doubt is reasonable. It is to the evidence introduced upon this trial, and to it alone, that you are to look for that proof. Please now retire to reach a verdict; if in one hour you have not reached a unanimous decision, the spokesperson should contact the researcher for direction.

Thank you.”

The aim of the study was to investigate how jurors understand and use linkage analysis evidence through qualitative analysis of their deliberations. Therefore, certain circumstantial and scientifi c evidence (e.g. proximity of the suspect to the murder victim on the night in question; suspect DNA on a cigarette butt found near the murdered victim’s body; and most importantly, testimony of a forensic odontologist, concluding that the bite marks on the victim’s body were probably made by the suspect), were removed from the case materials. This forced participants to rely solely on the linkage analysis evidence. This was done to ensure the participants discussed the linkage analysis suffi ciently in their deliberations for their understanding and use of it to be assessed, however it is important to note that in reality linkage analysis would be presented alongside other forms of evidence.

The expert report for the prosecution was taken from Hazelwood and Warren’s (Copyright: Hazelwood & Warren, 2003) published paper on the linkage analysis of the original case. The report focused on Hazelwood’s identifi cation of a unique signature that included modus operandi and ritual behaviours that were present in both crimes. The signature consisted of fi ve behaviours. These were brutal facial beating, manual strangulation from the front, injurious anal penetration, a bite to the chin, and a bite to the outer aspect of the left breast. Permission to reproduce aspects of the publication was agreed by Hazelwood and Warren beforehand. The rationale for using Hazelwood’s wording was to enhance the validity of the expert testimony.

The fi rst and second author of the current paper produced a mock expert witness report for the defence solely for the purpose of the study. The main points of this were (1) that there was limited supporting scientifi c evidence for the assumptions underlying linkage analysis, particularly for the crime of homicide, (2) that the limited studies that had found a degree of consistency in offending behaviour did not report perfect consistency across crime series, and (3) that the prosecution expert’s testimony did not include base rates of behaviours which would allow for a more objective measure of behavioural rarity.

Both expert witness reports were presented to the jurors by overhead projector. Written copies of the reports were provided during their presentation and for the later deliberations.

A fl ip chart was displayed which contained a glossary of terms relevant to linkage analysis to assist with the jurors’ comprehension.


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Procedure

Pilot study and group one

The following procedure was used for both the participants in the pilot study and Group one. Participants were presented with the murder case by way of video presentation, delivered by the mock judge. This was followed by the researcher stating ‘You are now going to receive judge’s instructions as to how to interpret the prosecution case of case linkage material that will be presented after’. Following this, participants received explicit judge’s instructions, cautioning them as to the linkage testimony being introduced and how the expert testimony should be considered. They heard details of a previous rape case, where the defendant had been found guilty and was convicted. The researcher went through key terms used in the expert’s reports on a fl ip chart. The glossary was left in the room for later reference. Expert testimony for the prosecution, regarding linkage analysis was then heard, followed by defence arguments against its use. These were presented orally and via overheads and written copies were left with the participants.

Group two

The same procedure was followed for Group two, however this group were not given the judge’s instructions and caution before the linkage analysis evidence was presented.

Finally, both groups viewed another short video input from the judge, asking them to deliberate as to the innocence or guilt of the perpetrator, to be aware of the principles of reasonable doubt, to elect a jury spokesperson and to deliver a unanimous verdict to the researcher. After a short break jurors started deliberating. Once a verdict had been reached, the spokesperson contacted the researcher who debriefed the group. All groups reached a verdict of not guilty. The deliberations for all groups (pilot, group one and group two) lasted between 40–45 minutes. The debriefi ng sessions with the fi rst author lasted from

30 minutes to 1 hour.

The video recordings of the deliberations for the three groups were transcribed and thematic content analysis was performed by the fi rst author. Dual coding was conducted by experienced, professional coders to assess the reliability of the coding. The second coder for the pilot study data was a professional video analyst. The second coder for the remaining two groups was an editor experienced in identifying relevant themes. The coders were fi rst given the case material to read. Following this, they were given segments of transcript to code against the coding scheme. The transcript segments that were chosen for inter-rater reliability analysis were those that had a large amount of discussion on linkage analysis, similarities and dissimilarities, and where debates took place between participants. The rationale behind this selection was that these scripts were those most at risk for error of theme misinterpretation. Following dual coding, the two coders discussed their coding with one another. Differences in coding were mainly due to the absence of codes in the coding scheme, as opposed to disagreements about the existing codes’ meanings. Levels of agreement were assessed post-discussion using percentage agreement and

Cohen’s Kappa.

For the pilot study, 16% of the deliberations were analysed by the independent coder.

The percentage agreement was 86% post-discussion. Following the pilot, new codes were introduced while others were refi ned. For the main study, 18% of the deliberations were analysed. Post-discussion percentage agreement was 93%. The post-discussion kappa value was 0.9, which represents an almost perfect level of agreement (Landis & Koch,


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1977). The difference between the pilot and main study rates of agreement can be explained by the refi nement of codes following the pilot study.

Ethics

Initial contact with participants was made by the fi rst author via informal social meetings.

At this stage, owing to the sensitive nature of the study, only general information was supplied. Where participants volunteered to take part in the study, additional information was provided to them which informed them that the study was of a sensitive nature, involving a rape and murder case. This information was sent via email and participants were asked to acknowledge receipt of this information. Participants were informed that if at any stage they wished to withdraw from the study, they could do so. The researcher asked that if they did wish to withdraw they inform the researcher to ensure that no person left without support. Help-line telephone numbers were provided to participants in case the material had distressed them. The video recordings of deliberations were destroyed after transcription to protect the participants’ identities. Only the fi rst author knew the identities of the participants. The independent coders knew the participants only as a number (for example,

P1 ). Participants were debriefed after the deliberations and were offered research summaries.

RESULTS AND DISCUSSION

The themes identifi ed from the thematic content analysis are reported in the following section alongside illustrative quotations. No differences were identifi ed in the themes across the different groups of participants therefore they are presented together. Each quotation is labelled by the participant number, the group from which they came, e.g. group one being [1], and the time during the deliberations at which the quotation was uttered.

Theme 1: The similarities between the two crimes

Unsurprisingly, since the expert evidence pertains to similarities between the two crimes in question, the jurors spent some time discussing the similarities in behaviour between the two offences. For example:

What bothers me is that I keep going back to the linkage analysis and it is so incredibly detailed and similar; it is almost like a dance in a way, what he did. (P9[1]17:30)

The most frequent argument used to highlight uniqueness and similarities was where the suspect had chosen to bite the victims as indicated by the bite marks left on their bodies:

The thing that is unique to me is again the bite marks, and exactly where they are.

(P8[1]28:30)

. . . to bite a person in those particular places . . . in exactly the same way . . . it is certainly leaning towards a signature. (P4[2]20:00)

Some jurors seemed to give greater weight to behavioural consistencies where the behaviour was perceived by them to be unplanned and more spontaneous. This is an interesting


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Deliberations of Linkage Analysis Evidence 175 observation in light of some fi ndings in Personality Psychology that, for non-criminal behaviour, more automatic behaviours show greater consistency across situations (Furr &

Funder, 2004).

The one small element is that it is not planned, in either case . . . they just presented himself, you don’t have time to think about it, boom you fall into the same pattern maybe there is something there. (P2[1]7:30)

I would certainly feel more comfortable about (linkage) in cases of planned crimes.

(P6[2]24:00)

I would say the opposite . . . because you are under pressure you are going to do things by instinct . . . I think it is pretty revealing. (P4[2]24:00)

. . . it’s quite instinctive in both cases, and obviously the body marks were very similar, so that would link the two crimes really. (P1[1]9:00)

Theme 2: The differences between the two crimes

Hazelwood’s testimony also highlighted differences between the two crimes under examination and unsurprisingly the jurors also discussed these. Those jurors who stated that they thought the suspect was guilty tended to minimise dissimilarities between crimes giving greater weight to the similarities:

The differences weren’t very dissimilar in fact, they weren’t enormous differences.

(P5[2]5:20)

To me it doesn’t matter about these dissimilar features, he just went after a woman,

I don’t care what they look like, . . . so this dissimilar feature of the crimes, to me doesn’t play any importance. (P5[1]20:00)

That the jurors discuss both the similarities and differences in suspect behaviour indicates that they understood the purpose of linkage analysis evidence. However, the following three themes illustrate their caution with regards to accepting the expert’s testimony that the combination of shared modus operandi behaviours was very rare.

Theme 3: Reasonable doubt and the guilt dilemma (feelings versus facts)

A recurring theme throughout the groups was the dilemma of feeling the defendant was possibly guilty, but not believing there were suffi cient facts or proof to convict. This led to a moral dilemma as many of the mock jurors wanted to fi nd the defendant guilty but felt the evidential facts were not there.

I think the guy is probably guilty looking at the amount of evidence within those similarities all added up together, there is a very good chance that he would have committed both crimes. But a very good chance is not good enough for me to say that: yes, the guy is guilty. (P3[2]9:30)

. . . if . . . we didn’t convict him, I really in my heart of hearts know that he did it, I feel that anyway . . . but I would be really bothered at night . . . and it’s a problem cos we don’t have the scientifi c evidence. (P9[1]18:00)


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The fi nal verdict given by the spokesperson of group two illustrates the guilt dilemma of feelings versus the facts:

We are going with not guilty . . . we may feel that he is guilty but there is not enough evidence to certainly pinpoint an individual and convict him.

The groups often highlighted the need for physical forensic evidence, to complement the evidence of behavioural similarity, which would link the suspect to the scene.

. . . there is a lot of circumstantial evidence that says that this guy’s probably guilty, but we don’t have facts, data or physical evidence to support it. (P4(2)15:30)

In the trial of Steven Fortin, additional physical evidence was presented by other experts, however, it is not always the case that behavioural evidence is accompanied with physical evidence. That linkage analysis evidence is presented in legal proceedings with or without accompanying physical evidence, and that the mock jurors in the current study expressed their discomfort when relying on linkage analysis evidence in the absence of physical evidence suggests an important area for future research. It would be advisable for studies to compare the deliberations of (mock) jurors when presented with linkage analysis evidence and various forms of accompanying evidence (types of circumstantial evidence, different forms of physical evidence).

Theme 4: Questioning the reliability of linkage analysis and profi ling

As participants had only expert testimony as evidence, the reliability of linkage analysis evidence became a recurring theme for all groups. Whilst offender profi ling can be seen as distinct from linkage analysis, within the deliberations participants considered them interchangeably. What participants missed was that the case was not a profi le drawn up of an unknown suspect, but that a suspect had actually been identifi ed in the linked crime.

This link was predominantly missed, although the Spokesperson (Group one) repeatedly tried to highlight this within the fi rst 5 minutes of the deliberations in an attempt to steer the discussion on course:

We . . . have to talk about the fact that there is this linkage going on.

However, profi ling and linkage analysis became intertwined with the jurors questioning the reliability of both as a determinant of guilt.

We don’t have enough data to know how defi nitive the profi ling is

(Spokesperson, Group 2).

As noted above, the jurors were uncomfortable giving a guilty verdict solely on the basis of behavioural evidence, however, there was support for linkage analysis evidence to be used if supplementing physical evidence.

It just doesn’t go far enough, I mean I can see that supplementing something that is in the case, where you have some physical evidence; but not overwhelming physical evidence and you put the profi ling with it, that would enhance it, but just alone profi ling. As already suggested, it is important for future studies to assess how jurors feel about using linkage analysis evidence when deciding guilt in the presence of other types of evidence. (P1[1]22:00)


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The jurors also positively commented on the use of profi ling and linkage analysis to support criminal investigations.

I don’t think that there is much objection to using profi ling for fi nding possible suspects, but to use in a court case is (it) enough to say now . . . we can convict this man? And all we’ve got is this profi ling . . . that just seems too strong a step for me to take. But to use profi ling as a tool to say ‘alright’ this is a suspect. (P1[1]13:30:24:00)

In addition to potentially accepting the use of behavioural evidence in legal proceedings if it were to supplement other forms of evidence, the qualitative analysis of the deliberations also suggested other conditions under which the jurors might more readily accept linkage analysis expert opinion.

Theme 5: Supporting expert opinion with evidence

Qualitative analysis of the jurors’ deliberations also revealed a theme relating to expert opinion being supported by some type of evidence. Firstly, the jurors discussed the need for statistics to support the prosecution witness’s claim that the offender’s behaviours were rare.

How rare are these combinations, how rare are these elements that were stated as unique? What combination’s unique? How rare are these characteristics? I am disappointed that there weren’t statistics provided with these that told me how to weight them. (P3[1]10:30)

. . . if you had certain elements: the amount of rapes that involved anal penetration

2%, okay—the amount of bite marks always on the right breast 1 in 10,000, okay.

Then you start to say ‘woahh hang on a minute’ . . . we just don’t have those fi gures.

(P3[2]10:30)

Such remarks by the jurors are perhaps not surprising since the defence’s expert highlighted the lack of base rates to support claims of behavioural rarity. Questions have been raised in psychological research as to whether opposing experts can alert jurors to methodological limitations in expert evidence (Kovera et al ., 2002). To determine if the provision of supporting statistics is a factor that jurors would identify without prompting from an opposing expert, a replication study is needed which excludes such counter testimony.

In addition to discussing the use of supporting statistics, the jurors also independently voiced the opinion that they would have liked the oral testimony of similarity to have been accompanied by photographs of the bite locations and teeth marks so they could see them for themselves.

Theme 6: Rarity versus uniqueness

With regards to accepting linkage analysis as expert evidence, some jurors also seemed to consider a rare combination of modus operandi behaviours to be insuffi cient in establishing guilt. It was suggested that a combination of behaviours would have to be unique for such evidence to be accepted:

Basically . . . the sexual acts . . . or rituals, are they unique? Or are they very rare?

Very rare is not good enough. (P3[2]2:30)


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Theme 7: The perceived objectivity of the prosecution expert witness

As noted in the introduction to this article, linkage analysis is often carried out by current or retired law enforcement employees. A theme emerged from the deliberations which suggested that the current or past employment of a linkage analysis expert might affect how his/her testimony is received. Both Groups one and two commented on the objectivity of the expert witness.

The fact that he works for a law enforcement agency, he is out to get a conviction.

I cannot see why he would present objective evidence, his evidence has to be subjective, . . . it doesn’t devalue it completely, but it discounts, what he says. (P6[2]3:30)

Such comments suggest that a more ‘independent’ witness might be better received. This fi nding is similar to one observed by Boccaccini and Brodsky (2002) who found that members of the public were more likely to believe an expert who was perceived to be impartial (in their case, someone who had worked previously for both the defence and the prosecution, compared to an expert who had solely worked for the defence or for the prosecution).

Theme 8: Reliance on lay knowledge

As discussed by Ormerod and Sturman (2005), for expert evidence of linkage analysis to be admissible in Court one condition that it would have to meet is that it goes beyond the knowledge of the average juror. Ormerod and Sturman argue that it is quite possible that some ‘bizarre signature-like traits’ might be missed by jurors but identifi ed by psychologists and thus, this condition might be satisfi ed. Indeed for a behaviour (or a combination of behaviours) to be deemed bizarre, rare or unique, requires some knowledge of what behaviours are common or rare in the type of crime under consideration. Hazelwood’s testimony in the Fortin trial directly speaks to this issue. Hazelwood’s report highlighted that he had never before seen the combination of manual strangulation, anal penetration, and biting in the thousands of cases with which he had had professional involvement.

Whilst themes 1–3 indicate that the jurors in the current study understood and used the experts’ testimony in forming their opinions about the case, this theme also suggested that they used their lay knowledge about rape behaviour in making their decisions. Some quotes suggested the jurors dismissed the prosecution expert’s evidence because it was incongruent with their own lay knowledge. In addition, despite Hazelwood’s report highlighting that he had never before seen the combination of manual strangulation, anal penetration or biting in thousands of cases, participants missed the fact that he was referring to a combination of behaviours, expressing beliefs that such acts (per se) were fairly common in rape cases.

. . . how rare are these combinations? . . . Because some of them I think were fairly common for the category of crime committed. (P3[1]10:00)

I’m no expert on rape, but each individual action seems to be fairly what one would expect to fi nd . . . (P6[2])

I would have thought biting and aggressive behaviour in aggressive sexual assault or rape would be relatively common. (P5[Pilot]15:00)


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A similar assertion was made by the motion judge in the Fortin II trial. In State v. Fortin

II (2007) it is recorded ‘The motion judge also forbade testimony about other aspects of the Gardner assault, including the anal penetration, strangulation, and facial beatings, because they were common to violent sexual assaults and added little to the showing of a signature crime’.

One participant did acknowledge that the expert testimony offered more than they knew themselves, but their argument was dismissed. The discussion is outlined below:

We have Hazelwood’s opinion; he said the combination was unique. (P1[2]11:00)

. . . don’t trust a copper to form an opinion. (P6[2]11:00)

He is more expert than we are. (P1[2]11:00)

I really do have a problem with falling into the trap of just because he said something’s ritualistic that we go and then say, yes it is ritualistic (P6[2]3:30).

Where the assertions about the commonness and rarity of offence behaviour made by some of the mock jurors under this theme are problematic is when they are inaccurate.

Theme 9: Rape misconceptions and myths

The use of behavioural similarity between crimes for the identifi cation of a suspect requires the two crimes to share behaviours that are relatively distinctive. This represents the two fundamental assumptions underpinning linkage analysis. For one to argue that expert linkage analysis evidence is inadmissible because it is not beyond the ken of the average juror, requires jurors to have accurate knowledge of the frequency with which modus operandi behaviours are displayed in crimes individually and in combination. Through qualitative analysis, an additional theme was identifi ed which illustrated misconceptions that the jurors held about how a sexual assault unfolds and the relative rarity of offender behaviours. Example quotes are presented alongside statistics from empirical research regarding the reported occurrence of the behaviours discussed.

I think that vaginal tears occur in 99.9% of rapes generally speaking . . . the point they are trying to make is the anal one. (P3[2]34:00)

In relation to injuries to the victim, Slaughter, Brown, Crowley, and Peck (1997) found

68% of women sustained genital injury following rape.

I would have thought . . . ripping off someone’s lower clothing and underwear was going to happen. (P3[Pilot]12:00).

Only 2% of sexually violent youths (Almond & Canter, 2007), and 11% of sexual homicide offenders and 14% of rapists (Salfati & Taylor, 2006) ripped the victim’s clothing.

. . . manual strangulation could happen in almost any (rape). (P5[Pilot]12:30)

In contrast to this quote, Greenall and West (2007) found 22% of their stranger rapists held the victim by the throat, and in only 4% of Finnish serial homicides were the victims strangled (Häkkänen, 2008).

These comparisons clearly indicate that there is potential confl ict between the perceptions of (mock) jurors’ in terms of sexual assault and homicide behaviour and the evidence that might be given by experts. Studies investigating other types of expert evidence have found considerable discrepancy between the beliefs of jurors and the beliefs of experts.


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For example, jurors disagreed with experts on 87% of the statements put to them about eyewitness accuracy (Benton, Ross, Bradshaw, Thomas, & Bradshaw, 2006).

Why the mock jurors rejected the experts’ testimony and relied on their own lay knowledge can be explained by past research. Levett and Kovera (2008) found that when mock jurors were presented with opposing expert evidence they became sceptical of all expert evidence. Similarly, Brekke and Borgida (1988) found that when two confl icting expert testimonies were given in simulated rape trials, mock jurors rejected both and relied on their own theories. In the current study the jurors were presented with evidence from the prosecution expert witness and the defence expert witness and thus this might explain why they relied on their lay knowledge.

Clearly, this study would need replication before any conclusions could be drawn regarding the misconceptions of jurors. If similar discrepancies between the beliefs of mock jurors and the fi ndings of the empirical research are uncovered in subsequent research, this would suggest that expert linkage analysis evidence is needed. However, the other themes described above suggest that if such evidence is to be accepted by jurors, the expert may need to provide hard statistics to combat the misconceptions that jurors might already possess.

Limitations

This study used a mock jury paradigm and thus suffers from the limitations of such research which have been outlined elsewhere (Breau & Brook, 2007). It should be noted that several participants in the current study held higher levels of education and world experience than the norm. Since previous research has suggested that jurors with a high need for cognition are better able to critically evaluate expert evidence (McAuliff &

Kovera, 2008) and that need for cognition is related to educational level (Butler & Moran,

2007), by sampling educated professionals our fi ndings may not refl ect the deliberations of all jurors. The small sample size in the current study also necessitates replication with different samples. Nonetheless, one of the strengths of this study was that validity was improved through the use of community dwelling adults, rather than undergraduates, cross-represented by age and occupation, and through the use of a more realistic simulation and the presence of deliberation (Diamond, 1997, as cited in Bornstein, 1999). It should be noted that the fi rst author was acquainted with the participants. This might have affected their deliberations. That being said, analysis of the transcripts suggests that participants were still happy to express views that could be considered controversial.

The aim of the study was to obtain an understanding of how mock jurors perceived and used linkage analysis evidence specifi cally. To achieve this it was necessary to present the jurors with the linkage analysis evidence in isolation. However, this clearly affects the ecological validity of the study since, as indicated at the start of this paper, linkage analysis evidence is typically presented in legal proceedings alongside other types of evidence, whether this be circumstantial evidence or physical evidence.

As noted previously, in this study the groups of mock jurors were presented with evidence from the prosecution and the defence regarding linkage analysis. Previous research suggests that when jurors are presented with opposing testimony they may reject all expert evidence and/or rely on their own lay knowledge (Brekke & Borgida, 1988; Levett &

Kovera, 2008). Some of the themes identifi ed in this study suggest that (mock) jurors will reject the testimony of experts and rely, instead, on their own lay knowledge, however that this might be an artefact of the study’s design cannot be ruled out.


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By adopting a different design or by using a quantitative methodology, future research can investigate the effect of these limitations. For example, studies could adopt an experimental design and manipulate the presence or absence of opposing expert testimony or corroborating physical evidence and observe the effects on jurors’ decision making.

Alternatively, a qualitative design could be used again with the themes emerging from deliberations under different conditions being contrasted. This type of focused analysis of how jurors receive and use a specifi c type of expert evidence contrasts with the dominant model of using quantitative methods to determine in a more general manner how expert opinion affects juror decision-making. It is a method that could be extended to other types of psychological evidence. As noted in the current study, the mock jurors appeared to have misconceptions about rapes and the behaviour of involved parties. The existence of rape myths in our society has been long recognised (Anderson, Cooper, & Okamura, 1997;

Gray, 2006; Krahe, Temkin, & Bieneck, 2007) and there has been recent discussion in the academic literature as to the admission of general expert testimony about rape (e.g. Ellison,

2005). The type of design used in the current study could be applied to such testimony.

Equally it could be applied to expert psychological testimony regarding eyewitness testimony and detecting deception.

Conclusions

Whilst still relatively rare, linkage analysis evidence has been admitted in legal proceedings in at least three countries. If we assume that the frequency of its admittance will increase, it follows that it is important to understand how jurors might receive such evidence. This study was the fi rst to consider how mock jurors understand and use linkage analysis evidence in their deliberations. The themes identifi ed suggest that jurors can understand the nature of the evidence, however in this study they were not comfortable relying solely on behavioural evidence to establish guilt. They did, however, seem to endorse the use of linkage analysis in guiding police investigations. This study has also suggested some important jury dynamics which might impact on the effectiveness of such expert testimony. It suggests that jurors will not always accept the testimony of experts.

The perceived independence of the expert appears to be important. In addition, whilst the minority of jurors accepted the greater knowledge of the expert relative to their own, other jurors dismissed the expert’s testimony, instead relying on their own lay knowledge about the rarity of types of rapist behaviour. Whether this was a result of the study’s design warrants further investigation. However, regardless of why the jurors relied on their own lay knowledge of the frequency of rapist behaviours in evaluating the linkage analysis evidence, that this was inaccurate suggests that to combat such misconceptions, linkage analysis experts would be wise to accompany their opinions about behavioural rarity with supporting statistics.

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A qualitative analysis of mock jurors' deliberations of linkage

A Qualitative Analysis of Mock Jurors’ Deliberations of

Linkage Analysis Evidence

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