The assessment of victim risk by an expert witness in a premises liability case may become critical to the successful outcome of the case. This article provides a Daubert style methodology for determining whether the victim was at low, moderate, or high risk for a crime of violence.
In 1978, the Behavioral Science Unit (BSU) at the FBI Academy, Quantico, Virginia established a Psychological Profiling Program to assist local, state, and federal agencies in the investigation of violent crimes. Research by the BSU determined that there was a lack of credible and experienced forensic experts who could assist agencies confronted with bizarre, repetitive violent crime by attempting to determine the thought patterns and motivation of the offenders. In 1984, the National Center for the Analysis of Violent Crime (NCAVC) was funded by the National Institute of Justice and is currently operated by the FBI.
The FBI's Psychological Profiling Program eventually evolved into the Criminal Investigative Analysis Program which is defined by the FBI as "an investigative process that identifies the major personality and behavioral characteristics of the offender based on the crimes he or she has committed." The CIA involves a behavioral approach from a law enforcement perspective which focuses on the identification and apprehension of the offender rather than the mental health view of diagnosis and treatment.
The process of a CIA involves the following steps:
One of the most important aspects of the CIA process is the evaluation of the victim also known as victimology. The purpose of this step is to determine why the victim was attacked and if there was any relationship between the victim and the offender. Also, attempts are made to determine the victim's risk level or how the victim's life style may have contributed to his or her assault or death.
To determine the victim's risk level, the authors have developed a Daubert style (Daubert v. Merrell Dow Pharmaceuticals, Inc. 43F. 3d 9th Circuit, 1995) methodology for evaluating the risk level for a specific victim. This evaluation is in the form of a questionnaire which can be completed through an interview of the victim or a person who is familiar with the victim's lifestyle and personality. Yes answers to the questionnaire receive a point value of 5, no answers a 1, and Unknown or Not Applicable a 0. The points are then tabulated and can be used to indicate whether the victim was at low, moderate, or high risk for a crime of violence. For example, total points in the range of 80 to 100 would indicate a high risk victim and points in the range 0-20 would indicate low risk.
Example: a young female who is sexually assaulted in her apartment complex sues the landowner over premises liability issues (substandard security). An expert is retained by the plaintiff to provide opinions regarding foreseeability, victim risk, and security at the complex. Through the use of the above questionnaire, the expert is able to determine that the victim was at low risk for a crime of violence and, therefore, did not contribute to her own victimization. The expert could then formulate a conclusion that would be very persuasive for the plaintiff and also meet the methodology requirements of Daubert.
In premises liability cases in which a person is the victim of a violent crime, an accurate assessment of the victim's risk level becomes very important in determining liability. The victim Risk Assessment Questionnaire can be utilized by an expert to determine risk at the time of the crime and also meet the methodology requirements of Daubert.
Dan L. Vogel is a retired FBI Special Agent with 25 years of service. During his last 15 years with the FBI, he served as Coordinator, National Center for the Analysis of Violent Crime in the Oklahoma City office. 405-615-6877 firstname.lastname@example.org
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