Montgomery County prosecutors say the controversial testimony from two mental-health experts in the murder case of Economics professor Rafael Robb should not be subjected to a hearing about its admissibility.
But legal experts say a Frye hearing - which is used to determine if novel scientific evidence is reliable enough to be permitted in court - can apply to testimony from psychologists and psychiatrists.
If Montgomery Co. Common Pleas Judge Paul Tressler agrees and allows the hearing, Montgomery Co. District Attorney Bruce Castor has said he will appeal the decision.
An appeal could delay the trial for Robb - who is accused of bludgeoning his wife, Ellen, to death last December - by more than two years.
A Frye hearing is traditionally used in situations in which the scientific community's acceptance of new evidence such as DNA testing needs to be proven before the evidence can be admitted in court.
In Robb's case, the prosecution wants to have mental-health experts testify that Robb's wife, Ellen, was killed by someone who likely knew her and wanted to see her suffer. The testimony would refute the defense's theory that Ellen Robb was killed by a random burglar.
Legal experts say that, despite Castor's contentions to the contrary, testimony about a killer's psychological profile fits the profile of evidence that is appropriate for a Frye hearing - that it has a scientific basis and that the jurisdiction's high court has not previously ruled on it.
Villanova University Law professor Richard Redding said a judge would only deny a Frye hearing if he thought the evidence wasn't grounded in science, but "that's pretty difficult to imagine because most mental-health testimony has some foundation of science."
Castor also argued that similar testimony has already been accepted in the scientific community as valid evidence, thus making a Frye hearing unnecessary. However, the issue has not been resolved in Pennsylvania courts, defense attorneys and independent experts both say.
And even without a Frye hearing, Temple University Law professor Edward Ohlbaum said testimony that depicts a killer's psychological profile is already on shaky legal ground.
"Profiling evidence in and of itself is inadmissible because it tends to tell the jury what to do," he said.
If Tressler eventually rejects the testimony, it could prove to be a huge blow to the prosecution, which is relying mostly on circumstantial evidence to link Robb, 57, to the murder of his wife.
Robb is currently being held without bail at the Montgomery Co. Correctional Facility. His trial for first-degree murder is slated to begin Nov. 26.
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