On appeal from the Superior Court, Appellate Division.
For affirmance as modified -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. Opposed -- None.
This appeal arises under the provisions of the New Jersey Code of Criminal Justice permitting the imposition of the penalty of death for the commission of the crime of murder. N.J.S.A. 2C:11-3c. The case involves the question of the admissibility of certain kinds of evidence relating generally to the character of the defendant, offered as a mitigating factor under N.J.S.A. 2C:11-3c(5)(h), in the course of the trial phase of the case that is concerned solely with the penalty -- death or life imprisonment -- to be imposed on the defendant. The issue reaches us following an interlocutory order of the trial court that had rejected the admissibility of the proffered evidence, and the reversal of that order by the Appellate Division, which had granted leave to defendant to appeal the trial court's interlocutory ruling. Treating the State's petition for certification as a motion for leave to appeal an interlocutory order, we granted leave to appeal. 96 N.J. 303 (1984).
We entertain this appeal notwithstanding its interlocutory nature in view of its importance to the State and to the defendant in this case, as well as to other similarly situated defendants confronting the imposition of the penalty of death. In deciding to adjudicate the issue presented on this appeal, we stress that this Court has not yet had the occasion to consider the many constitutional, statutory, and procedural issues implicated in several capital cases that have not yet reached this Court. By our decision today we in no way foreshadow our future treatment of any such issue.
On April 12, 1983, defendant, Steven Raymond Davis, was indicted for murder. Defendant subsequently pled guilty, and, pursuant to the provisions of N.J.S.A. 2C:11-3c, a penalty trial
was scheduled. Jury selection began on February 21, 1984 and was completed on March 12, 1984.
On February 8, 1984, defense counsel advised the State that he intended to proffer, in mitigation of a death penalty verdict pursuant to N.J.S.A. 2C:11-3c(5)(h), the expert testimony of Professor Marvin E. Wolfgang, Ph.D. Dr. Wolfgang would testify as to the contents of a report prepared by him on February 7, 1984, that asserted that defendant was a likely candidate "for a thirty year sentence instead of a death sentence" because empirical studies demonstrate that a defendant sharing Mr. Davis' statistical profile "would never again commit another serious crime of any kind" after serving the mandatory minimum thirty year term. The statute provides that if the jury does not determine to impose the death penalty, the defendant shall be sentenced to a term of life imprisonment in which he shall not be eligible for release on parole until he has served a minimum term of thirty years. N.J.S.A. 2C:11-3.
Dr. Wolfgang holds a doctorate in sociology and is a member of the faculty of the department of sociology at the University of Pennsylvania. A review of his curriculum vitae and published works reveals that for more than twenty-five years a principal focus of Dr. Wolfgang's research has been the study of criminal violence, with specific emphasis upon the psychological and sociological determinants of violent crime. Dr. Wolfgang is described by defendant and amicus as an "eminent criminologist" who is an "expert in statistics." He holds no degrees in psychology or psychiatry, and has had no formal training in those fields.
Dr. Wolfgang's report on behalf of Mr. Davis was not based on any personal evaluation of defendant. (In fact, Dr. Wolfgang has never met Mr. Davis.) Rather, the professor relied upon demographic "features" that defendant possessed, and then selectively drew upon statistical research that demonstrates a low rate of recidivism among offenders sharing these demographic features.
His four-page report notes Mr. Davis' present age and that "he will be 57 years old were he sentenced to 30 years without parole as a minimum sentence." Dr. Wolfgang then cites his own research findings and "national statistics" to demonstrate that males aged 55-59 are highly unlikely to commit homicide. Moreover, "after age 29, as age increases crime rates decrease." Next, Dr. Wolfgang notes that according to statistics presented in a 1980 report of the U.S. Department of Justice and in a 1969 study by the New York Division of Parole, murderers are the least likely to commit subsequent offenses of any sort upon release from prison. Thus, according to Dr. Wolfgang, "the best available research shows that persons convicted of first degree murder * * * have the lowest rates of future offending among all types of offenders." The report proceeds to assert that
[t]aking these factors into account, and recognizing that Mr. Davis has no previous crime record, that he would have served a minimum of 30 years in prison, and were he given this sentence, that he would minimally be 57 years old at the time of release, our conclusion is that Mr. Davis would never again commit another serious crime of any kind.
The State moved to exclude Dr. Wolfgang's testimony on the ground that it is irrelevant to any mitigating factor properly before the jury. The trial court ruled that the proffered testimony would be excluded during the penalty phase since the statement in no way pertained to Mr. Davis' individual character. The court concluded that while "the question of potential for rehabilitation" may be testified to as part of the indicia of a defendant's character, "the statistical approach doesn't tell us anything at all about a given defendant."
As noted, the Appellate Division granted defendant's motion for leave to appeal and reversed the trial court's ruling, thereby allowing defendant to introduce the testimony of Dr. Wolfgang. Thereafter, upon determining that no double jeopardy claims would attach, we granted the State leave to appeal. We also stayed the penalty phase trial, pending ...