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State v. Fortin2/3/2004
of the opportunity to discover which jurors would be unwilling or unable to remain impartial and follow the court's limiting instructions after hearing the highly inflammatory evidence about defendant's crime against Trooper Gardner. We, therefore, vacate defendant's convictions and remand to the Law Division for a new trial consistent with this opinion.
III. Expert Testimony of Robert Hazelwood
Robert Hazelwood testified as the State's expert witness on the subject of "violent sexual crimes" to aid the prosecution in identifying defendant as the murderer of Melissa Padilla. Hazelwood presented impressive credentials. He served thirty three years in law enforcement, including twenty-three years at the Federal Bureau of Investigation. During his tenure with the FBI, Hazelwood was a member of the Behavioral Science Unit, where he studied serial sex offenders and killers. By his own account, Hazelwood had participated in more than 7,000 violent crime investigations, the majority of which were sex-related. He had authored forty articles in peer-reviewed journals on violent crime and five books on criminal and sexually-deviant behavior, and had lectured on such subjects to law enforcement agencies and as an adjunct faculty member at several universities. Upon being qualified as an expert, Hazelwood compared what he claimed were the unique and distinctive characteristics of defendant's sexual assault on Trooper Gardner to those of Padilla's murder for the purpose of allowing the jury to infer that only one person committed both crimes. Hazelwood stated that he had never seen, heard, or read of "this combination of behaviors in any other crime."
Relying on Fortin I, supra, 162 N.J. 517, defendant contends that Hazelwood never produced a database of cases from which he made his comparisons and derived his conclusions, as ordered by this Court as a pre-condition to his testimony. Accordingly, defendant argues that the trial court should not have permitted Hazelwood to testify in light of his failure to comply with this Court's discovery order. Without the database, defendant concludes that he was denied, in essence, his constitutional right to confront Hazelwood on the terms required by this Court and, therefore, his right to a fair trial.
In assessing defendant's claim, our review begins with Fortin I. In State v. Fortin, supra, the Appellate Division held that the sexual assault of Trooper Gardner was admissible to prove identity under N.J.R.E. 404(b) and that Hazelwood was not qualified to give expert testimony through the use of linkage analysis. 318 N.J. Super. at 580. This Court agreed with the Appellate Division that the "proposed expert testimony of Hazelwood concerning linkage analysis lack sufficient scientific reliability to establish that the same perpetrator committed the Maine and New Jersey crimes." Fortin I, supra, 162 N.J. at 525. "Linkage analysis" is the comparison of two or more crimes for common characteristics of a unique or distinctive nature that permits a trained investigator to conclude that the same perpetrator committed the crimes. Id. at 522-23. This Court concluded that linkage analysis had not attained a sufficient level of scientific reliability to warrant its admissibility at trial. Id. at 525. This Court found that it "is a field in which only Hazelwood and a few of his close associates are involved." Id. at 527. As such, "there are no peers to test his theories and no way in which to duplicate his results." Ibid.
On the other hand, this Court concluded that Hazelwood, based on his experience, could testify as an expert in criminal investigative techniques and, as such, could discuss similarities between the crimes, provided he did
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