Science and Syndromes, Profiles, and Indicators

AuthorAlan D. Gold
Chapter 7
Science and Syndromes, Profiles,
and Indicators
   expert opinion evidence share a misleading logic and are
unacceptable from a scientic point of view: syndromes, proles, and indica-
tors. Proles have already been described in chapter  and their unscientic
nature al luded to in chapter ; thi s chapter explores all th ree types of evidence
in greater detail. What they have in common is their attempt to establish a
diagnosis from a description. For example, if an examination of known child
molesters establishes that most or all possess child pornography, the diagnosis
is that a person found with child pornography is a child molester. Or if a person
proven to be a drug courier is found to have paid for his plane ticket with cash,
boarded the plane last, and looked around constantly when deplaning, that in-
formation is turned around to claim that a person who buys his ticket with
cash, boards last, and looks around a lot is in fact a drug courier. is reasoni ng
makes use of a well-known logical fallacy: arming the consequent. Clearly,
the view that if a person is a child molester then he will have child pornography
cannot logically be reversed to claim that if a person has child pornography
then he is a child molester.
Besides the basic problem of awed logic, all three categories share an addi-
tional weakness. ey are wrong more oen than they are right. Because the
characteristics that make up the syndrome, prole, or indicators are invariably
present in other than the target group, these types of evidence invariably en-
At note .
At note .
    
gage the base rate fal lacy described in chapter  and generate many more false
positives than true positives. ey simply lack sucient reliability to qualify as
admissible evidence.
Finally, in almost all ca ses even the characteristics on which the syndrome,
prole, or group of indicators are based are unreliable. Oen they are fuzzy and
ambiguous, based on subjective interpretation. Or they may be tautological,
where anything and everythi ng is “consistent with” the syndrome or prole or
condition ind icated.
Battered Woman Syndrome
   in the area of expert evidence, which highlights
the questionable scientic nature of many psychological pronouncements, is
the leading authority on battered woman syndrome. is became a recognized
area of expert evidence when the concept was accepted by the Supreme Court
of Canada in  in R. v. Lavallee. It was not the Court’s nest hour, as far as
expert evidence is concerned. Since then, some steps towards limiting the judi-
cial acceptance of this material have taken place. However, Canadia n courts
have yet to admit the intellectual error made in admitting this evidence. Else-
where, one judge has described the concept as an “advocacy driven construct
designed to ‘medicalise’ the evidence in a particular case to avoid the dicu lties
which might arise in the context of a criminal tria l . . . [regarding] the accused’s
Faigman and Wright have elsewhere said all that can and should be said on
this topic. ey begin with an appropriately scathing denunciation of Lenore
Walker’s book, e Battered Woman, which was so uncritically accepted and
gured so prominently in Justice Wilson’s judgment in Lavallee:
e battered woman syndrome illustrates a ll that is wrong with the law’s use
of science. e working hypothesis of the battered woman syndrome was
rst introduced in Lenore Walker’s  book, e Battered Woman. When
[]  S.C.R .  [Lavallee].
R. v. Malott, []  S.C.R. ; R . v. F.(D.S.) (),  C.R . (th)  (Ont. C.A.); R. v.
Tro mbl ey (),  C.C.C. (d)  (Ont. C.A.), a’ d []  S.C.R . .
Osland v. e Queen (),  A.L.R.  at para.  (H.C. A.).
David L. Faig man & Amy J. Wright, “e Battered Woman Syndrome i n the Age of Sci-
ence” ()  Ari z. L. Rev.  at .
(New York: HarperCollin s, ).
Chapter : Science an d Syndromes, Profiles , and Indicators
it made its debut, this hypothesis had little more to support it beyond the
clinical impressions of a sing le researcher. Five years later, Walker published a
second book that promised a more thorough investigation of the hypothesis.
However, this bo ok contains little more t han a patchwork of pseudo -scientic
methods employed to con rm a hypothesis that its author and participating
researchers never seriously doubted. Indeed, the  book would provide an
excellent case study for psycholog y graduate students on how not to conduct
empirical research. Yet, largely based upon the same political ideolog y driving
the researcher s, judges have welcome d the battered woman syndrome into thei r
courts. Because the law is d riven by precedent, it quickly petried around the
original conception of the defense. Increasingly, observers are realizing that
the evidence pur portedly suppor ting the battered wom an syndrome is w ithout
empirical foundation, and, perhaps more troubling , that the syndrome itself is
inimical to the pol itical ideology original ly supporting it. In short, in the law’s
hasty eort to use science to fur ther good policy, it is now obvious that the bat-
tered woman syndrome is not good science nor does it generate good policy.
Another author put it more dispassionately:
[T]he largely unrestrained admissibil ity of BWS [battered woman syndrome]
cannot be explained solely on the basis of evidentiary doctrine and scientic
validity. Instead, it involves politics a nd reects a normative judgment typical-
ly associated with changes i n criminal liability rather tha n evidentiary admis-
It is one thing to enunciate a new, normative, criminal law rule regarding
self-defence, to the eect that a woman in an abusive relationship may kill a
sleeping, despicable partner in self-defence, even absent the “immediacy of
threat” requirement generally required by the law of self-defence. But such
change, for example, by a statutory amendment would be fully debated (and
I hope easily defeated). However, it is quite another thing to justify such an
amendment by judicial pronouncement as a “common law” change, based al-
legedly on “psychological science,” especially when the science is bogus.
Faigman & Wright, above note  at .
Robert P. Mosteller, “Syndromes and Politics in Crim inal Trials and Evidence Law”
()  Duke L.J. ; see also Janet C . Hoeel, “e Gender Gap: Re vealing Inequitie s
in Admission of Soc ial Science Evidence in Crimi nal Cases ()  U. Ark. Little Rock
L. Rev. .
 Joshua Dressler, “Battered Women and Sleeping Abu sers: Some Reections” ()
 Ohio St. J. Crim. L . , abstract on line:/papers.
cfm?abstract _id=.

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