Science and Syndromes, Profiles, and Indicators
| Author | Alan D. Gold |
| Pages | 177-221 |
[177]
Chapter 7
Science and Syndromes, Profiles,
and Indicators
expert opinion evidence share a misleading logic and are
unacceptable from a scientic point of view: syndromes, proles, and indica-
tors. Proles have already been described in chapter and their unscientic
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: arming 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 oen than they are right. Because the
characteristics that make up the syndrome, prole, or indicators are invariably
present in other than the target group, these types of evidence invariably en-
At note .
At note .
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gage the base rate fal lacy described in chapter and generate many more false
positives than true positives. ey simply lack sucient reliability to qualify as
admissible evidence.
Finally, in almost all ca ses even the characteristics on which the syndrome,
prole, or group of indicators are based are unreliable. Oen 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 prole or
condition ind icated.
SYNDROMES
Battered Woman Syndrome
in the area of expert evidence, which highlights
the questionable scientic 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 dicu lties
which might arise in the context of a criminal tria l . . . [regarding] the accused’s
motivations.”
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, ).
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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 -scientic
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 petried 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 eort 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 scientic
validity. Instead, it involves politics a nd reects a normative judgment typical-
ly associated with changes i n criminal liability rather tha n evidentiary admis-
sibility.
It is one thing to enunciate a new, normative, criminal law rule regarding
self-defence, to the eect 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 . Hoeel, “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 Reections” ()
Ohio St. J. Crim. L . , abstract on line: http://papers.ssrn.com/sol/papers.
cfm?abstract _id=.
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