(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).
Argued September 28, 1999 -- Decided February 23, 2000
O'HERN, J., writing for a majority of the Court.
This is an interlocutory appeal from pretrial rulings in a capital murder case. There are two issues raised.
The first is whether the prosecution can introduce evidence of a similar crime in Maine on the issue of identity under
N.J.R.E. 404(b). The second is whether the State's proposed witness can be qualified as an expert on the ritualistic
and signature aspects of crime under N.J.R.E. 702, and testify through the use of “linkage analysis” that the same
person who committed the Maine crime committed the murder in New Jersey.
On August 11, 1994, Melissa Padilla was murdered in the Avenel section of Woodbridge Township. Her
boyfriend found her body lying half inside a large-diameter concrete sewer or drainage pipe along the roadway.
Padilla's body was naked from the waist down. She was wearing a shirt, but no bra. Her shorts, with her underwear
still inside them, were found on a nearby shrub. The assailant had brutally beaten Padilla about her face and head,
and her nose was broken. She had been killed by manual strangulation. The autopsy revealed rectal tearing and bite
marks on Padilla's left breast, left nipple, and the left side of her chin.
On April 3, 1995, Maine State Trooper Vicki Gardner came upon a vehicle stopped on the shoulder of the
road. She question the driver, defendant Fortin, who told her he was having mechanical trouble. After noticing the
smell of alcohol, Gardner summoned another trooper for assistance and administered a series of sobriety tests.
While Gardner was administering the tests, Fortin grabbed her by the throat and strangled her until she almost lost
consciousness. Gardner later realized that her pants and underpants had been removed and that Fortin was sexually
assaulting her. When the back-up trooper arrived, Fortin sped away with Gardner in the car. Fortin cursed and
punched Gardner in the face as he drove. Gardner was able to jump out of the moving car. Farther down the
highway, Fortin lost control of the car and crashed. Fortin fled and was later apprehended at a rest area a mile away.
Gardner's face had been severely beaten and her nose was broken. She had been manually strangled. In
addition, she had been bitten on the left chin, left nipple, and left breast, and she suffered injuries from vaginal and
anal penetration. Gardner's pants, underpants, and bra had been removed, and her underpants were still inside her
pants. Fortin pled guilty to the assault of Gardner.
Maine State Police contacted officers in New Jersey to inform them of Fortin's arrest. The police learned
that Fortin had lived in Avenel at the time of the Padilla murder. They also learned that Fortin had argued, fought,
and separated from his girlfriend earlier on the evening of the murder. When later seen by his girlfriend, Fortin had
scratches on his head, neck, and chest. A dentist who examined the bite marks on Padilla and wax bites of Fortin
concluded that the bite marks on Padilla's breast had been caused by Fortin, and that the remaining bite marks
“could” have been caused by him.
At a pre-trial hearing under N.J.R.E. 104, the State sought to introduce a trial report and testimony of
Robert R. Hazelwood as an expert in the analysis of modus operandi (M.O.) and ritualistic crimes. Hazelwood had
been an F.B.I. agent, working for the last sixteen years of his service in the Behavioral Science Unit, where he
conducted research into the motivations and characteristics of the perpetrators of violent crimes. At the time of trial,
Hazelwood was employed by the Academy Group, an association of retired FBI and secret service agents who
formerly worked for the Behavioral Science Unit. Defense counsel objected to the introduction of any evidence
related to the Maine crime or Hazelwood's proposed testimony.
Hazelwood determined that the M.O. of the crimes demonstrated fifteen aspects that were consistent, and
that he had never seen this cluster of M.O. characteristics in any other crime. He then described the ritualistic
aspects of the crimes, i.e., the way in which the perpetrator sought sexual gratification. He identified five ritualistic
behaviors common to these two crimes, including the bites and their location, injurious anal penetration, and frontal,
manual strangulation. Hazelwood testified he had never before seen that precise combination of ritualistic behaviors.
Using “linkage analysis,” Hazelwood determined that the likelihood of different offenders committing two such
extremely unique crimes was highly improbable. Hazelwood explained that linkage analysis, which is based on a
consideration of the concentration of M.O. and ritualistic characteristics, is used by criminal investigators to
determine whether multiple crimes were committed by the same person.
The Law Division held that the evidence of the Maine crime was admissible under N.J.R.E. 404(b). The
court found that evidence of the Maine crime was relevant on the issue of identity and that its probative value
outweighed its probable prejudice. The Law Division also held that Hazelwood's testimony was admissible under
N.J.R.E. 702, finding linkage analysis to be beyond the knowledge of the average juror and sufficiently relied on in
the law enforcement community.
The Appellate Division granted leave to appeal and affirmed the 404(b) ruling but required that the
evidence had to be sanitized, or limited to those facts necessary to prove identity. State v. Fortin,
318 N.J. Super. 577 (1999). The Appellate Division reversed on the admissibility of Hazelwood's testimony. It found that linkage
analysis was not at a state of art such that the testimony would be sufficiently reliable. The Appellate Division
observed that Hazelwood's testimony was essentially “ultimate issue” evidence _ an “expert” opinion that Fortin had
committed the New Jersey crime. It also reasoned that linkage analysis involved an application of behavioral
science, and as such, should be evaluated under the test for admission of scientific evidence.
Fortin sought leave to appeal the Appellate Division's holding that evidence of his involvement in the
Maine crime was admissible. The State sought review of the holding in respect of Hazelwood's expert testimony.
The Supreme Court granted both motions.
HELD: The proposed expert testimony concerning linkage analysis lacks sufficient scientific reliability and is
therefore inadmissible; evidence of the Maine crime is admissible on the issue of identity with an appropriate
limiting instruction.
1. The three requirements for the admission of expert testimony are: (1) the testimony must concern a subject
beyond the ken of the average juror; (2) the field must be at a state of the art such that an expert's testimony would
be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the testimony. The Court finds that
the second prong is not satisfied, since linkage analysis has not attained such a state of the art as to have sufficient
scientific reliability. A witness like Hazelwood, however, would be qualified to testify as an expert on criminal
investigative techniques without drawing conclusions about the guilt or innocence of the defendant. (Pp. 11-16)
2. New Jersey accepts the common-law rule that evidence of another crime may be relevant to prove identity.
N.J.R.E. 404(b). The criminal activity must involve conduct that is unusual and distinctive so that it is like a
signature, and there must be proof of sufficient facts in both crimes to establish an unusual pattern. It is initially for
the court, and ultimately for the jury, however, to determine whether the inference concerning the ultimate issue of
guilt may be drawn. In this regard, the trial court found persuasive Hazelwood's testimony that he had not seen a
similar combination of characteristics in reviewing 4,000 cases. His premise can be fairly tested at trial. The Court
emphasizes the importance of a carefully crafted limiting instruction that will explain to the jury the limited purpose
for which the other-crimes evidence is being offered. (Pp. 16-26)
The judgment of the Appellate Division is AFFIRMED, and the matter is REMANDED to the Law
Division for further proceedings in accordance with this opinion.
JUSTICE LONG, concurring in part and dissenting in part, agrees with the holding that Hazelwood
cannot testify as an expert in linkage analysis. She would reverse, however, on the admissibility of the Maine crime
under N.J.R.E. 404(b), concluding that the jury would not be able to abide by a limiting instruction.
CHIEF JUSTICE PORITZ and JUSTICES GARIBALDI, STEIN, COLEMAN, and VERNIERO
join in JUSTICE O'HERN's opinion. JUSTICE LONG has filed a separate opinion concurring in part and
dissenting in part.
SUPREME COURT OF NEW JERSEY
A-95/
96 September Term 1998
STATE OF NEW JERSEY,
Plaintiff-Respondent
and Cross-Appellant,
v.
STEVEN R. FORTIN,
Defendant-Appellant
and Cross-Respondent.
Argued September 28, 1999 -- Decided February 23, 2000
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 318
N.J. Super. 577 (1999).
Matthew Astore, Deputy Public Defender II,
argued the cause for appellant and cross
respondent (Ivelisse Torres, Public Defender,
attorney; Mr. Astore, Anderson D. Harkov,
Assistant Deputy Public Defender and Robert
A. Obler, Designated Counsel, of counsel and
on the briefs).
Nicholas Ruggiero and Thomas J. Kapsak,
Assistant Prosecutors, argued the cause for
respondent and cross-appellant (Glenn Berman,
Middlesex County Prosecutor, attorney).
The opinion of the Court was delivered by
O'HERN, J.
This is a capital murder case. The State has charged the
defendant with killing a woman in a savage sexual assault. There
are two issues in this interlocutory appeal. The first issue is
whether the Law Division erred in ruling that the prosecution
could introduce evidence of a similar crime in Maine on the issue
of identity under N.J.R.E. 404(b). The State offered the
evidence to show similarities between an incident in which
defendant sexually assaulted and strangled a state trooper in
Maine and the sexual assault and murder for which he is charged
in New Jersey. The second issue concerns whether the State's
proposed expert witness, Robert R. Hazelwood, can be qualified as
an expert on the ritualistic and signature aspects of crime under
N.J.R.E. 702, and whether he can testify through the use of
“linkage analysis” that the same person who committed the Maine
crime committed the murder in New Jersey.
Inside the concrete pipe was a large blood stain. The assailant had brutally beaten Padilla about her face and head. Her face was swollen and bruised, and her nose was broken. She had been killed by manual strangulation. The autopsy revealed rectal tearing, and bite marks on Padilla's left breast, left nipple, and the left side of her chin.
On April 3, 1995, Maine State Trooper Vicki Gardner came upon a vehicle stopped on the shoulder of a road. She stopped to question and assist the driver. Defendant Steven Fortin, the occupant of the vehicle, told her that he was having mechanical trouble. After noticing the smell of alcohol, Gardner administered a series of sobriety tests. She summoned another trooper by radio to complete the testing and paperwork associated with the stop. As she was sealing the results of one of the sobriety tests, defendant grabbed her by the throat and strangled her until she almost lost consciousness. Gardner later said that she realized at one point that her pants and underpants had been removed and that Fortin was sexually assaulting her. As the back-up drew near, defendant sped away with Gardner in the car. As he drove, Fortin cursed and punched her in the face. Gardner tried to jump out of the moving car. However, she did not roll free of the car and was dragged along the pavement for a short time before she was freed from the vehicle. Farther down the highway, defendant lost control of the car, turned it over and fled from the scene on foot. He was later apprehended at a rest area about a mile from the accident.
Gardner's face had been severely beaten and her nose was broken. She had been manually strangled. In addition, she had been bitten on the left chin, left nipple, and left breast, and she suffered injuries from vaginal and anal penetration. Gardner's pants, underpants, and bra had been removed. When her nylon running pants were found in her patrol car, her underpants were still inside them.
Maine State Police contacted officers in New Jersey to inform them of the charges pending against Fortin. During the New Jersey investigation, the police learned that Fortin had lived in Avenel at the time of the Padilla murder. Moreover, they learned that Fortin had argued, fought, and separated from his girlfriend earlier on the evening of the murder. When later seen by his girlfriend, he had scratches on his head, neck, and chest. Police employed a dentist to examine dental models and wax bites of defendant and the bite marks on Padilla. He concluded that the bite marks on Padilla's breast had been caused by defendant, but that the remaining bite marks “could” have been caused by defendant.
At a pre-trial hearing under Evidence Rule 104, the State sought to establish a foundation to introduce at trial a report and testimony of Robert R. Hazelwood, as an expert in the analysis of modus operandi (a criminal's customary manner of operation referred to as an “M.O.”) and ritualistic crimes. Hazelwood had served in the military police for eleven years before becoming an F.B.I. agent. During his last sixteen years of FBI service, he had worked in its Behavioral Science Unit, conducting research into the motivations and characteristics of the perpetrators of violent crimes, supervising the training of other officers in the unit's methodology, and consulting with law enforcement agencies around the country on unsolved crimes. In all, Hazelwood had personally investigated over 7000 crimes in his 35 years in law enforcement. At the time of the trial, he was employed by the Academy Group, an association of retired FBI and secret service agents who formerly worked for the Behavioral Science Unit. Defense counsel objected to any evidence related to defendant's plea bargain in Maine or Hazelwood's proposed testimony.
Based on Hazelwood's review of the Maine and New Jersey crimes, he first determined that the modus operandi of the crimes demonstrated fifteen aspects that were consistent in the Padilla and Gardner attacks: (1) both crimes were “high risk” (2) committed impulsively (3) against female victims (4) who were both fully mature in age; (5) both crimes were committed against victims who crossed the offender's path; (6) both victims were alone when attacked; (7) both assaults took place adjacent to or on well-traveled roadways; (8) both occurred during darkness; (9) no weapons were used during the assault; (10) both victim's sustained only blunt force injuries; (11) both assaults took place at the point of confrontation; (12) both victims sustained trauma primarily to the upper face with no damage to teeth; (13) both victims had their lower garments completely removed; (14) both victims were wearing shirts, but their breasts were free; (15) neither victim had seminal fluid on or in her body. In Hazelwood's report, as further explained at the Rule 104 hearing, he noted that modus operandi is learned behavior which can change as a criminal learns, modifies and adapts his behavior to fit a particular situation. An example is a serial rapist who always cuts windows with a glass cutter. A criminal changes his modus operandi to achieve three goals: (1) succeed at the crime; (2) protect his identity; and (3) facilitate his escape.See footnote 11 He concluded that in his experience, he had never seen the cluster of M.O. characteristics exhibited in the Padilla and Gardner attacks in any other crime. In addition, both victims' noses were broken and their underpants were found intertangled with their outer pants. Hazelwood then described the “ritualistic” aspects of the crimes, i.e., the way in which the perpetrator seeks sexual gratification. Unlike modus operandi, “ritual” aspects of a crime do not change and are linked to the criminal's need to do certain things. These actions are often unnecessary to the commission of the crime, but serve to complement the underlying motivation or fantasy of the offender in sexual crimes. He identified five behaviors common to these two crimes: (1) bites to the lower chin; (2) bites to the lateral left breast; (3) injurious anal penetration; (4) brutal facial beating; and (5) manual (frontal) strangulation. Again, he testified that he had never before seen that precise combination of ritual behaviors. Using “linkage analysis,” Hazelwood determined that the likelihood of different offenders committing two such extremely unique crimes was highly improbable. He explained that linkage analysis is the procedure used by criminal investigators when the concentration of M.O. and ritualistic characteristics in crimes is high, such that the investigator can conclude that the perpetrator is the same person.
On June 3, 1998, the Law Division made two rulings: one on the admissibility of the N.J.R.E. 404(b) other-crimes evidence and the other on the admissibility of Hazelwood's testimony under N.J.R.E. 702, generally governing the admission of expert opinions. In each instance, the court set forth its rulings in a comprehensive, written opinion. On the first issue, applying the standards of State v. Cofield, 127 N.J. 328 (1992), and State v. Stevens, 115 N.J. 289 (1989), the court held that the evidence of the crime against Trooper Gardner in Maine was admissible in the case against Fortin in New Jersey. The evidence was similar in kind and reasonably close in time to the offense charged; evidence that Fortin committed the Maine crime was clear and convincing and relevant to the issue of identity; the proof of identity was inadequately served by the bite mark and cigarette butt evidence identifying defendant as the perpetrator of the New Jersey crime; and the probative value of the other-crimes evidence outweighed its probable prejudice. The court concluded that the other-crimes evidence was admissible, but subject to exclusion of Fortin's guilty plea in Maine.
The Law Division applied State v. Kelly, 97 N.J. 178 (1984), to evaluate the admissibility of Hazelwood's testimony as an expert. The court found that the analysis of modus operandi in homicide cases, and certainly the analysis of ritualistic behavior, involved something far beyond the knowledge, experience, or ability of the average fact-finder. In addition, the court found that the theory of Hazelwood's testimony is sufficiently relied on in the law enforcement and criminal investigation community, i.e., the community in which the theory has applicability. Finally, the court held that Hazelwood had sufficient expertise to offer the intended testimony, and therefore qualified him as an expert on the modus operandi and ritualistic behavior of violent crime offenders.
On interlocutory appeal, the Appellate Division affirmed the 404(b) ruling, but reversed the admission of Hazelwood's testimony. State v. Fortin, 318 N.J. Super. 577 (1999). It held that there had been neither “clear error of judgment” nor a “manifest denial of justice” as required in State v. Marrero, 148 N.J. 469 (1997), for reversal of the 404(b) ruling by an appellate court. 318 N.J. Super. at 594-95. The Appellate Division found that the less prejudicial evidence available to prove identity was relatively weak and might not be deemed persuasive by a jury. Id. at 596-97. The panel agreed that the prejudice inherent in the other-crimes evidence had to be minimized by “sanitizing” that evidence, that is, by limiting the admissible facts to those necessary to prove identity. Id. at 598. The court suggested that the defense and prosecution should try to select those aspects of the Maine incident that were essential to the State's identity evidence and capable of presentation without sacrificing defendant's right to a fair trial. The court stated that if the parties could not reach an agreement, the trial court would hold another Rule 104 hearing to determine the scope of the material to be admitted. Id. at 598 99.
On the question of Hazelwood's testimony, the Appellate Division found that the analysis was not sufficiently reliable to be admitted as expert evidence. Id. at 609. The panel stated: “We are simply not convinced the State has satisfied its burden to establish that 'the field testified to [is] at a state of art such that an expert's testimony could be sufficiently reliable[.]'” Id. at 610 (quoting Kelly, supra, 97 N.J. at 208). The Appellate Division observed that Hazelwood's testimony was essentially “ultimate issue” evidence. If defendant committed the Maine crime and the same person committed the Maine and New Jersey crimes, then Hazelwood's testimony was nothing more than an “expert” opinion that Fortin had committed the New Jersey crime. Id. at 600-01. Although Hazelwood claimed that his analysis was based on training and experience (as when a police officer testifies that a suspect appeared drunk or a particular package of drugs demonstrated a suspect's intent to distribute them), the Appellate Division reasoned that his analysis actually involved an application of behavioral science (recall that Hazelwood's F.B.I. unit was called the Behavioral Science Unit). Id. at 600. As such, the panel ruled that his testimony should be evaluated under the test for admission of scientific evidence. Ibid. Using that test, the court concluded that dissimilarities in the cases and the small sample size (two crimes) distinguished this evidence from similar evidence admitted by other jurisdictions. Id. at 608-609.
Defendant's motion for leave to appeal sought review of the Appellate Division's holding that evidence of Fortin's involvement in the Maine assault was admissible. The State sought review of the holding that Hazelwood's expert report and testimony was inadmissible. We granted both motions. 160 N.J. 86 (1999).
The linkage analysis evidence is similar to the rapist profile evidence that we considered inadmissible in State v. Cavallo, 88 N.J. 508 (1982). In that case, two defendants were convicted of rape, abduction, and private lewdness. At trial, the defendants sought to introduce a psychiatrist's testimony that one defendant did not have the psychological traits of a rapist. We considered how a proponent of scientific evidence that an accused lacks the personality profile of a rapist can establish “general acceptance” of such a theory and thereby its reliability. Id. at 521. Using the three methods of proof generally recognized by courts, i.e., (1) expert testimony, (2) scientific and legal writings, and (3) judicial opinions, we held that the defendants failed to meet their burden of showing that the scientific community generally accepts the existence of identifiable traits common to rapists. Ibid. In addition, we held that defendants failed to demonstrate that psychiatrists possess any special ability to determine whether an individual is likely to be a rapist. Thus, we deemed the evidence to be inadmissible.
Hazelwood's report similarly fails to meet the standards for the admission of testimony that relates to scientific knowledge. Although Hazelwood possesses sufficient expertise in his field and his intended testimony is beyond the ken of the average juror, the field of linkage analysis is not at a “state of the art” such that his testimony could be sufficiently reliable. See Kelly, supra, 97 N.J. at 197 (holding three requirements for the admission of expert testimony: (1) the intended testimony must concern a subject that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; (3) the witness must have sufficient expertise to offer the intended testimony). In this case, we are concerned with the second prong of the test, the scientific reliability of the evidence. See State v. Harvey, 151 N.J. 117 (1997)(discussing proper use of expert testimony, scientific literature, and judicial opinions to determine general acceptance of results of DNA analysis from polymarker dioxyribonucleic acid testing and dot-intensity analysis). In a work that he co-authored, Hazelwood is quoted as saying that a sexual predator's behavior is as unique as his fingerprints, his DNA, or as a snowflake. Stephen G. Michaud and Robert R. Hazelwood, The Evil that Men Do, 177-78 (1998). As the Appellate Division noted however, the authorities and literature authored by Hazelwood and others do not demonstrate that linkage analysis has attained such a state of the art as to have the scientific reliability of DNA testing.
Although, as Hazelwood explained, “linkage analysis” is distinct from profiling, the history of success in profiling serial killers is uneven. For example, psychological profiling in the Atlanta Child Murders case matched the defendant Wayne Williams, even though he was never convicted of killing a child. The deaths for which he was ultimately convicted were those of two victims in their twenties. Id. at 95. On the other hand, psychiatrists and psychologists were off-target in their profile of the suspects in the “Boston Strangler” case of the 1960sSee footnote 22. Moreover, linkage analysis is a field in which only Hazelwood and a few of his close associates are involved. Concerning consensus on acceptance of “linkage analysis” in the scientific community, the other experts mentioned by Hazelwood in his testimony were either current or former co-workers. In this respect, there are no peers to test his theories and no way in which to duplicate his resultsSee footnote 33. See Windmere, Inc. v. International Ins. Co., 105 N.J. 373 (1987) (holding that testimony of two experts, who had limited experience and were both affiliated with development of voiceprint device at principal source, did not establish general acceptance so as to require admission of results of voiceprint analysis into evidence, particularly where one expert conceded that device lacked scientific consensus).
Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that he acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute. [emphasis added].
In State v. Cofield, supra,, we formulated “a rule of general
application in order to avoid the over-use of extrinsic evidence
of other crimes or wrongs.” 127 N.J. at 338. For other-crimes
evidence to be admissible, we stated that it must possess the
following characteristics:
1. The evidence of the other crime must be
admissible as relevant to a material issue;
2. It must be similar in kind and reasonably
close in time to the offense charged;
3. The evidence of the other crime must be
clear and convincing; and
4. The probative value of the evidence must
not be outweighed by its apparent prejudice.
[Id. at 338 (citations omitted.)]
Evidence of prior bad acts must be relevant not merely to a
material issue, but to a material issue that is genuinely
disputed. Ibid. (citing State v. Stevens,
115 N.J. 289 (1989)).
In cases concerning “signature” crimes, we stated:
Evidence Rule 55 [the predecessor to N.J.R.E.
404(b)] is most easily understood in
situations of signature crimes, in which some
distinct feature about the two crimes clearly
allows the jury to make an inference other
than propensity to commit crime. For
example, the distinctive features of a silver
pistol used in a prior crime would be
admissible under Evidence Rule 55 in an
unrelated murder trial to establish either
the identity of the perpetrator or the weapon
used.
[Id. at 336 (citing State v. Long, 119 N.J.
439, (1990)).]
In State v. Reldan,
185 N.J. Super. 494 (1982), the
Appellate Division found that evidence of defendant's commission
of two prior, allegedly similar offenses, a rape and assault by
“use of force to throat,” was an improper use of other-crimes
evidence to establish identity. In that case, the defendant was
on trial for the rapes and murders of two women by ligature
strangulation. The defendant had previously been convicted of a
rape of one B.C. and an attempted robbery of B.M. In those
assaults, Reldan had used his arm to press against B.C.'s neck,
and he used a knife and his hand to muzzle and choke B.M. during
the robbery. According to the trial court,
never has this court heard or seen
strangulation or the use of force applied to
the throat as a means of obtaining submission
of a potential rape victim...indeed the use
of force to the throat of a person is rare in
any type of crime. Because of that, it is
concluded that such method is unique and
tantamount to a signature, so that it
qualified under the exception in Rule 55 as
probative of the issue of identity only.
[Id. at 500-01.]
The Appellate Division disagreed, holding that a greater degree
of similarity between the charged crime and the uncharged crime
is needed when the evidence of the other crime is introduced to
prove identity than when it is introduced to prove state of mind.
(citing E. Cleary, McCormick on Evidence § 170, p. 452 (rev. ed.
1972)). The Appellate Division agreed that had the other crimes
been accomplished by the use of a “garrote or ligature,” the
other crimes might have borne a like signature. The court held:
In order for evidence of a prior crime to be
admissible on the issue of identity (for
which it was offered here) the prior criminal
activity with which defendant is identified
must be so nearly identical in method as to
earmark the crime as defendant's handiwork.
The conduct in question must be unusual and
distinctive so as to be like a signature, and
there must be proof of sufficient facts in
both crimes to establish an unusual pattern.
[Id. at 502-03. (citing State v. Sempsey,
141 N.J. Super. 317, 323 (1976))].
Thus, in order to be admissible on the issue of identity, the
other crimes must bear peculiar, unique, or bizarre similarities.
In Reldan, the panel concluded:
The common factor relied on was an assumption
by the court that rape or attempted rape in
each case was accomplished by the 'use of
force to the throat.' The commonality of
this factor vanishes immediately upon
analysis. Assuming that both cases being
tried involved rape, we have no evidence that
such purpose was accomplished by use of force
to the throats of these unfortunate women.
We only know that their deaths were commonly
caused by a unique method. They were both
garroted by use of a female stocking or
pantyhose accompanied by use of the
assailant's hand upon the neck fracturing the
hyoid bone. Whether rape was attained by use
of force at the throat or by threatened use
of a revolver, knife, other weapon, or simple
threats of physical assault to their person,
is a matter of speculation.
[Id. at 503.]
Some sources suggest a stricter standard for introducing
evidence of an unrelated prior act to show a method of operation
that can be used to establish identity. See Frensley v. State,
291 Ark. 268, 274 (1987) (citing Edward J. Imwinkelreid,
Uncharged Evidence, § 3.10 to 3.12 (1984))See footnote 44. Other courts have
held that when the acts are comparable in several important ways,
discrepancies go to the weight of the challenged evidence and not
to its admissibility.
29 Am Jur 2d Evidence § 423 (1994). One
source notes that in these courts
[d]isparities are weighed evenhandedly
against similarities, giving due measure to
the number of each and to the distinctiveness
of the attributes. Generally, when evidence
of other acts is admitted, the comparison
involves the conjunction of several
identifying characteristics with the presence
of some highly distinctive quality. The more
distinctive the identifiers, the fewer of
them need be present to demonstrate the
requisite signature.
[Ibid. (citing United States v. Ingraham,
832 F.2d 229 (1st Cir. 1987)) (holding that
evidence of previous threatening letters
written by defendant was admissible in
prosecution for making threatening telephone
call in interstate commerce).]
We are satisfied that the standard for similarities in
other-crimes evidence enunciated in Sempsey and later in Reldan
continues to be appropriate. In order for evidence of a prior
crime to be admissible on the issue of identity,
the prior criminal activity with which
defendant is identified must be so nearly
identical in method as to earmark the crime
as defendant's handiwork. The conduct in
question must be unusual and distinctive so
as to be like a signature, and there must be
proof of sufficient facts in both crimes to
establish an unusual pattern.
[Reldan, 185 N.J. Super. at 502 (citing
Sempsey,141 N.J. Super. at 323)].
VI.
Finally, we repeat the importance of a carefully crafted
limiting instruction that will explain to the jury the limited
purpose for which the other-crimes evidence is being offered. In
State v. Stevens, we explained that because "the inherently
prejudicial nature of such evidence casts doubt on a jury's
ability to follow even the most precise limiting instruction,"
115 N.J. at 309, the court's instruction "should be formulated
carefully to explain precisely the permitted and prohibited
purposes of the evidence, with sufficient reference to the
factual context of the case to enable the jury to comprehend and
appreciate the fine distinction to which it is required to
adhere." Id. at 304. We thus emphasized that a court should not
state generally the content of N.J.R.E. 404(b) [then Evidence
Rule 55], but should "state specifically the purposes for which
the evidence may be considered and, to the extent necessary for
the jury's understanding, the issues on which such evidence is
not to be considered." Id. at 309. Hence, "more is required to
sustain a ruling admitting such evidence than the incantation of
the illustrative exceptions contained in the Rule." Id. at 305.
The practice in Illinois is to instruct the jury when other
crimes evidence is presented concerning the limited purpose for
which it is offered. Steven A. Greenberg, Evidence of Prior
Misconduct - When Is It Admissible in a Criminal Case?,
86 Ill.
B.J. 694 (1998). In a case such as this, a court might initially
state to the jurors when other-crime evidence is offered to prove
identity:
Members of the Jury:
You are about to hear evidence presented
by the State concerning a criminal act in
Maine alleged by the State to have been
committed by the defendant. I caution you
that this evidence is not being offered to
show that he is a bad person, but rather for
a very limited purpose.
The purpose for offering this evidence
is to attempt to convince you that the crime
committed in Maine and the crime committed
here are so similar and so unique that you
may infer that the same person committed the
two crimes. In short, the evidence is being
offered to prove the identity of the person
who committed the crime in New Jersey on
which you will deliberate.
If you find the two crimes not to be so
similar as to warrant an inference that the
same person committed them, then you must
disregard the evidence entirely. Above all,
you are not to infer that because the
defendant may have been shown to have
committed another crime elsewhere, that he is
a bad man with a propensity for crime.
Neither logic nor law permit that inference
to be made.
Similar instructions should be included in the charge to the
jury. (These are, of course, only suggested instructions. We
request the Committee on Model Criminal Charges to recommend any
needed changes in such a charge.) With these conditions, we
believe that a crime-scene analyst such as Hazelwood, with broad
experience in investigating similar crimes, can assist a court
and a jury in understanding whether the crimes bear such a unique
signature that an inference may be drawn that the perpetrator of
the two crimes was the same person.
The judgment of the Appellate Division is affirmed. The
matter is remanded to the Law Division for further proceedings in
accordance with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES GARIBALDI, STEIN, COLEMAN,
and VERNIERO join in JUSTICE O'HERN's opinion. JUSTICE LONG has
filed a separate opinion, concurring in part and dissenting in
part.
SUPREME COURT OF NEW JERSEY
A-95/
96 September Term 1998
STATE OF NEW JERSEY,
Plaintiff-Respondent
and Cross-Appellant,
v.
STEVEN R. FORTIN,
Defendant-Appellant
and Cross-Respondent.
LONG, J., concurring in part and dissenting in part.
I
On April 3, 1995, while Maine State Trooper Vicki Gardner
was writing him a summons, defendant Steven R. Fortin attacked
and sexually assaulted her, strangling her into unconsciousness.
In the process, he battered her face, broke her nose, bit her
neck and breast and inflicted anal injuries. Those are the facts
that the State seeks to elicit under N.J.R.E. 404(b) to establish
Fortin's identity as the murderer of Melissa Padilla in 1994.
The majority today holds that, with a proper limiting
instruction, such evidence can fairly be paraded before the jury
that will try Fortin in this capital case. I respectfully
disagree.
After it hears that evidence, which bears no unique
signature to deflect a jury from its propensity use, it is
inconceivable to me that a jury will be able to render an honest
verdict as to whether Fortin killed Melissa Padilla. That is
not because the jurors are not sober and conscientious, but
because they are human and, realistically, will be unable to
abide by a limiting instruction.
We recognized that state of affairs in State v. Brunson,
132 N.J. 377, 391 (1993), where we harked back to the concern we
enunciated in State v. Stevens,
115 N.J. 289, 304 (1989), that a
limiting instruction “may not cure the prejudice inherent in
other crimes evidence admitted under Rule [404(b)]."See footnote 55 Based upon
substantial and compelling legal scholarship, we held in Brunson
that, even with a limiting instruction, the most dedicated juror
cannot be trusted to use a similar prior conviction solely for
impeachment purposes. We thus declared that, in those cases in
which a testifying defendant has previously been convicted of a
crime that is the same or similar to the pending charge, the
State may impeach defendant only by reference to the date and
degree of the prior offense without identifying the crime. Id.
at 391-92.
To be sure, there are differences between N.J.R.E. 404(b)
uses and impeachment uses. For instance, the probative value of
the former is judged greater than that of the latter, and
impeachment may occur with sanitization while most N.J.R.E.
404(b) uses cannot take place without some of the details of the
prior crime being revealed. Nevertheless, the potential for
juror misuse is the same regardless of context, and all the
concerns we expressed about the inadequacy of jury instructions
in Brunson (which we decided after State v. Cofield,
127 N.J. 328
(1992)) exist and remain unresolved in a N.J.R.E. 404(b)
proceeding.
There is simply no warrant to conclude that jurors who are
so incapable of following the court's instructions in the
impeachment context that the very name of the prior crime cannot
be whispered in their presence, can use the particularly
grotesque details of this crime solely for a limited N.J.R.E.
404(b) purpose.
That is not to suggest that evidence of every prior crime
would so prejudice a defendant. For example, if testimony were
adduced to show that a defendant's motive for murder was to cover
up an embezzlement, the court could effectively instruct the jury
not to use the embezzlement as an indication that defendant was
predisposed to homicide. The reason that such an instruction
would be effective is that it would not be counterintuitive.
On the contrary, it is this particular crime (the details of
which are necessary to any identity analysis and cannot be
satisfactorily sanitized) that makes it impossible for an
effective instruction to be crafted. Indeed, the import of any
instruction would necessarily be that the jury should not use the
fact that Fortin beat, strangled, bit and sodomized Trooper
Gardner to conclude either that he is a bad person or that he is
likely to do so again. The reason that instruction would be
ineffective is obvious: it flies in the face of human experience.
When the jury hears what Fortin did to Trooper Gardner,
there exists a substantial risk that it will be lured into
declaring his guilt on grounds other than the State's proof of
each element of the New Jersey offense beyond a reasonable doubt;
that it will punish Fortin for his “body of crime” as opposed to
the murder of Melissa Padilla; or that it will convict him on a
prophylactic basis - unsure of his guilt, but convinced that he
is a danger to others based upon the Maine crime. In this
capital murder case, I would not take that risk.
II
It is well-established that N.J.R.E. 404(b) evidence should
not be admitted where less inflammatory testimony is available on
the issue. State v. Oliver,
133 N.J. 141, 151 (1993) (citing
Stevens, supra, 115 N.J. at 301). Under that analysis, the
details of Fortin's crime in Maine should have been excluded
because there was other, less prejudicial evidence to link Fortin
to the New Jersey crime. That evidence included testimony by
Fortin's girlfriend that on the night of the murder, he returned
home with scratches on his head, neck and chest; testimony that
Fortin's DNA was found on a cigarette butt near Melissa Padilla's
body; and, most importantly, expert testimony of Dr. Lowell
Levine, a forensic odontologist, concluding that the bite mark on
Melissa Padilla's breast was made by Fortin and that the other
bite marks on her body were consistent with Fortin's dentition.
Prosecutors bring cases based on that quantum of evidence every
single day. If believed by a jury, it would justify the
conclusion that Fortin was the person who killed Melissa Padilla.
Here, the trial court essentially held that because the jury
“could” disregard the State's expert and circumstantial evidence
of identity, the highly inflammatory evidence of the Maine crime
was admissible on that issue. Despite the deference that the
judge is accorded, the fact that a jury might not be persuaded
cannot possibly be the appropriate standard. If it were, it
would open the door to the piling on of prejudicial and
inflammatory other crimes evidence, contrary to Oliver and
Stevens, in practically every case. Certainly, where, as here,
there was non-inflammatory evidence sufficient to withstand a
motion for judgment on the identity issue, there could be no
legitimate reason to subject Fortin to the irremediable prejudice
of the N.J.R.E. 404(b) evidence that clearly outweighed its
probative value.
III
Separate and apart from my overall objection to the
admission of this evidence because it will nullify the
possibility of a fair trial, I also disagree with the majority to
the extent that it has concluded, as did the Appellate Division,
that the Maine crime evidence is admissible in the absence of an
expert.
There is a natural and inevitable tendency on the part of
jurors to view proof of other crimes as justifying condemnation
irrespective of the defendant's guilt of the present charge. 1
Wigmore Evid. § 194 at 646 (2nd ed. 1940). N.J.R.E. 404(b)
recognizes that tendency by codifying New Jersey's long-standing
exclusion of prior crimes evidence to show predisposition, State
v. Kociolek,
23 N.J. 400, 418-20 (l957), but allowing it to prove
another fact in issue.
Because prior crimes evidence may simultaneously be highly
probative and extremely prejudicial, State v. Stevens, supra, 115
N.J. at 300, a four-pronged test has been developed as a screen
for the admission of such evidence. State v. Cofield,
127 N.J. 328, 338 (1992). To be admitted, the other crime must be
relevant to a fact in issue; similar and temporally proximate;
committed by defendant; and more probative than prejudicial.
Ibid. Although Cofield generally declares a similarity
requirement, similarity is not essential except where identity is
at issue.See footnote 66
Although the admission of all prior crimes evidence is
somewhat problematic, similar prior crimes evidence that is
offered for identity poses the greatest threat to a fair trial
because of the enhanced hazard of misuse. State v. Reldan,
185 N.J. Super. 494, 501 (App. Div.), certif. denied,
91 N.J. 543
(1982). There is thus a higher standard for its admission.
United States v. Myers,
550 F.2d 1036, 1045-46 (5th Cir. 1977),
cert. denied,
439 U.S. 847,
99 S. Ct. 147,
58 L. Ed.2d 149
(1978). Such prior crimes must not only be similar, but must
have been committed by a novel or extraordinary means. Reldan,
supra, 185 N.J. Super. at 502-03. In other words, two separate
elements of proof are required:
[P]erhaps the most incisive statement of the
theory appears in an English decision,
R. v. Morris. In that 1970 case, Widgerly
L.J. delivered the judgment of the Court of
Appeal. In his opinion, his Lordship stated
that to invoke this theory, the prosecutor
must show that the charged and uncharged
crimes were committed by “one and the same
man.” That expression connotes the two
propositions the prosecutor must establish:
(1) both crimes were committed with the
“same” or strikingly similar methodology;
and (2) the methodology is so unique that
both crimes can be attributed to “one”
criminal. The methodologies must resemble
each other so closely that there is a
reasonable deduction that the same person
committed the two crimes. The methodology
must be peculiar; the methodology must “set
apart” the perpetrator. The inference must
be the identity of the perpetrator of the
two crimes rather than one criminal's
imitation of another criminal. The modus
operandi must betray the defendant's
personal criminal identity.
[1 Edward J. Imwinkelried, Uncharged
Misconduct Evidence 3:10, 3:12 (1999).]
Similarity and uniqueness are distinct prongs of an identity
analysis. Evidence should not be admitted for identity if one of
the prongs is lacking. The brute number of similarities does not
establish uniqueness. Myers, supra, 550 F.
2d at 1045; People v.
Rivera,
710 P.2d 362, 364 (Cal. 1985); 22 C. Wright & K. Graham,
Federal Practice & Procedure, Evid. §5246 (1978). Uniqueness
depends on whether the characteristics of the crime are
sufficiently idiosyncratic to permit an inference of pattern for
the purposes of proof. 2 Jack B. Weinstein & Margaret A. Berger,
Weinstein's Evidence ¶414[16] at 404-129-30 (l986).
The reason for the signature requirement is obvious: mere
similarity only points to an interdicted use - predisposition.
The unique signature is what upgrades the evidence and provides
the jury with a basis to look beyond predisposition and fairly
attribute both crimes to one criminal, thus establishing the
valid N.J.R.E. 404(b) use of identity. Although rendering lip
service to the duality of an identity analysis, the majority here
has essentially collapsed the two prongs into one in ruling that
an expert is permissible and not mandatory.
Even if a reasonable juror could conclude that the Maine and
New Jersey crimes are similar based on the prosecutor's laundry
list of fifteen gross similaritiesSee footnote 77 - the question of uniqueness
is much more complicated. This is not a case where two crimes
were committed wearing medieval knights' helmets or masks of dead
presidents. In such circumstances, a reasonable juror could
easily parse out the uniqueness factor. Here, according to the
prosecutor's theory (and Hazelwood), the signature behavior is
the distribution of the bites; the anal and facial injuries; and
manual frontal strangulation. Without a proper expert's opinion,
there is simply no way for the jury to know what to make of these
factors; more particularly, whether they are a handprint that
sets Fortin apart as the perpetrator of both crimes, or whether
they are merely meaningless permutations of most violent sex
offenses.
Unlike similarity, as both the trial court and the Appellate
Division held, this is not a matter within the ken of the
ordinary juror. That that is so is underscored by the
prosecutor's proffer of an expert in the first place. That
proffer would surely not have occurred if, for example, both
perpetrators had dressed the victims in bizarre clothing or left
an amaryllis at the scene. Those examples are obvious
signatures. There is nothing obvious about this case. In the
absence of an expert, a jury simply cannot know whether a unique
handprint is present. Without that proof, the evidence lacks the
enhanced probative value necessary for an identity use. Reldan,
supra, 185 N.J. Super. at 502-03; State v. Sempsey,
141 N.J.
Super. 317, 323 (App. Div. 1976), certif. denied,
74 N.J. 272
(1977). On that basis, I would reject that portion of the
Appellate Division's disposition admitting the Maine crime
evidence in the absence of an expert.
That said, it is my view that the reliability defects that,
according to the Appellate Division and the majority, preclude
Hazelwood from testifying as a scientific expert on linkage, are
equally applicable to his proffer of uniqueness testimony.
Linkage analysis is the procedure used by criminal investigators
when the concentration of modus operandi and ritualistic
characteristics in crimes is high, such that the investigator can
conclude that the perpetrator is the same person. Uniqueness
testimony is linkage analysis under another name. It is no more
reliable when Hazelwood testifies as a crime investigator than
when he does so as an “expert” in ritualistic behavior. In sum,
while I would not allow the evidence of the Maine crime to be
admitted without an expert, I agree with the Appellate Division
that Hazelwood does not qualify.
IV
I would reverse the determination of the Appellate Division
that the details of the Maine crime are admissible under
N.J.R.E. 404(b). Because the majority has determined that that
evidence can be admitted, I would hold that an expert is
necessary to establish uniqueness. I would affirm the Appellate
Division's conclusion that Hazelwood does not qualify as such an
expert.
NO. A-95/96 SEPTEMBER TERM 1998
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
STATE OF NEW JERSEY,
Plaintiff-Respondent
and Cross-Appellant,
v.
STEVEN R. FORTIN,
Defendant-Appellant
and Cross-Respondent.
DECIDED February 23, 2000
Chief Justice Poritz