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State v. Fortin2/3/2004
, which this Court found not to have achieved an acceptable level of scientific reliability, and the uniqueness analysis that this Court permitted as a subject of expert testimony.
In Fortin I, this Court was concerned about providing some means by which to test the validity of Hazelwood's conclusions. The database was to serve as the means by which those conclusions would be subject to verification on cross examination. We cannot ignore the fact that Hazelwood's testimony 23af that he had never seen, read, or heard of two crimes with the same characteristics in common 23af came close to identifying defendant as the murderer without uttering the words. That powerful testimony was presented through the quasi science of uniqueness analysis. Hazelwood was offered as a respected authority. The danger that the Trooper Gardner assault could be used as propensity evidence, despite the best crafted limiting instruction, was a grave concern. In Fortin I, this Court also recognized the danger that a jury could be swept along by testimony that drew even a facile connection between the two gruesome crimes. Id. at 534 (citing State v. Stevens, 115 N.J. 289, 309 (1989)).
Although Hazelwood's uniqueness analysis may not sound strictly in scientific method, there are enough common elements to invoke the principles and, therefore, the protections of State v. Kelly, 97 N.J. 178 (1984). In Kelly, this Court cautioned that " he technique or mode of analysis used by the expert must have a sufficient scientific basis to produce uniform and reasonably reliable results so as to contribute materially to the ascertainment of the truth." Id. at 210; see also State v. Cavallo, 88 N.J. 508, 516 (1982) (" xpert testimony is admissible only if the expert has sufficient expertise to offer the intended testimony and the testimony itself is sufficiently reliable.").
The Rules of Evidence, contrary to the State's assertions, do provide the basis for the production of a database before an expert testifies. N.J.R.E. 705 states, "The expert may testify in terms of opinion or inference and give reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross examination." (Emphasis added). Fortin I, supra, unmistakably required prior disclosure of a reliable database to ensure the validity of Hazelwood's testimony and to allay this Court's concerns about its improper use. 162 N.J. at 533.
The Fortin I Court provided two examples of a reliable database to validate an expert's testimony. Id. at 532. In State v. Zola, the State sought to prove that the defendant had sexually assaulted the victim by presenting the testimony of a forensic chemist, who opined that his tests on a vaginal sample from the victim indicated the presence of saliva. 112 N.J. 384, 408-09 (1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed. 2d 205 (1989). To support his opinion, the expert referred to his logbook of test results from approximately 1,644 other vaginal samples. The Court held that the State's failure to make the database of those samples available to the defense before trial was harmless error. Id. at 410-12.
As a second example of a reliable database, this Court cited a table entitled "Incident Characteristics by Homicide Type, 1976-95 (in Percent)," in James Alan Fox and Jack Levin, Multiple Homicide: Patterns of Serial and Mass Murder, 23 Crime & Just. 407, 435 (1998). As the name suggests, that table tabulates thousands of homicides and displays incident characteristics 23af weapon used, victim-offender relationship, and circumstances 23af broken down by type
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