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State v. Fortin2/3/2004
its admissibility. The trial court emphasized that defense counsel could cross-examine Hazelwood about the number of cases he had reviewed that involved strangulation and bite marks.
In his trial testimony, Hazelwood identified seventeen similarities in the modus operandi and five ritualistic behaviors similar between the Gardner and Padilla crimes. See supra Part I. In his trial testimony Hazelwood defined modus operandi as "the behaviors necessary to commit the crime and the consequences of those behaviors." Modus operandi is a "learned behavior" that develops based on the criminal 's ongoing "experience," "education," "maturity," and "the demands of the crime." Hazelwood claimed that he had never "seen all 17 of these [modus operandi] characteristics together" other than in the Gardner and Padilla crimes.
According to Hazelwood, ritualistic behaviors are "static" and "repeated patterns of behaviors... designed for one single purpose, psychosexual gratification." Hazelwood found "five ritualistic behaviors that were similar between the two crimes." See supra Part I. Hazelwood had never encountered that combination of ritualistic behaviors before or a bite mark to the chin "in all of the 7,000 cases that [he had] worked on over more than 30 years." Hazelwood had never seen, read, or heard of such similarities in modus operandi and ritualistic behaviors in any other crime.
Although that conclusion came perilously close to a prohibited ultimate-issue opinion 23af an opinion as to the guilt of defendant 23af Fortin I permitted such testimony provided that Hazelwood was able "from a reliable database" to say that the combination of factors were "unique in his experience of investigating sexual assault crimes." See Fortin I, supra, 162 N.J. at 532. The missing link here was the failure of Hazelwood to produce any database before or during his testimony.
This Court clearly stated in Fortin I that a "database of cases" would permit Hazelwood's assumptions to be "fairly tested." Id. at 533. We cannot accept the State's argument that Hazelwood provided a "reliable database" to support his opinion by reference to his expert report, his curriculum vitae, his publications, and his pretrial testimony, all of which were known to this Court at the time of Fortin I. See id. at 521 (discussing Hazelwood's credentials). Had any of those items qualified as the "reliable database," this Court undoubtedly would have said so. Defendant was not required, as suggested by the State, to assemble Hazelwood's database by researching his publications and tracking down all or some portion of the relevant 7,000 cases that he investigated over the course of his law enforcement career. Surely, Hazelwood 23af an author of five books and scores of articles, a university adjunct faculty member, a frequent lecturer, a former FBI agent, and former member of the FBI Behavioral Science Unit 23af could have compiled some manner of database of cases on which he had based his conclusions. We cannot agree with the trial court that Hazelwood's reference to his experience, training, and education was a substitute for a "database of cases" or that the failure to provide such case information only went to the weight to be given to his opinion, rather than its admissibility.
Hazelwood's testimony, although presented as the application of criminal investigative techniques, was couched in the aura of science, more particularly, behavioral science. He was permitted to testify to his understanding of the state of mind of the perpetrator, who he described as impulsive, motivated by anger, and driven by the need for "psychosexual gratification." A very thin line demarcated the boundary between linkage analysis
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