The opinion of the court was delivered by: O'hern, J.
Argued September 28, 1999
On appeal from the Superior Court, Appellate Division, whose opinion is reported at 318 N.J. Super. 577 (1999).
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.
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. Bags of food, a partially eaten sandwich, a store receipt, an earring, debris including cigarette butts, and a bloody one-dollar bill were found scattered near the body. Padilla's shorts, with her underwear still inside them, were found on a nearby shrub.
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. *fn1 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).
For the reasons stated in its opinion, we agree with the judgment of the Appellate Division that the proposed expert testimony of Hazelwood concerning linkage analysis lacks sufficient scientific reliability to establish that the same perpetrator committed the Maine and New Jersey crimes. We add only these observations.
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 1960s *fn2 .
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 results *fn3 . 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).
In all fairness, Hazelwood did not purport to cloak his testimony with a mantra of scientific reliability. He candidly acknowledged that linkage analysis is not a science, but rather is based on years of training, education, research, and experience in working on thousands of violent crimes over an extended period of time. Such methods have great value for purposes of criminal investigation. We therefore believe that one such as Hazelwood has a proper role in a criminal trial based on his experience as an expert in criminal investigative techniques. Such a witness is qualified to discuss similarities between crimes without drawing conclusions about the guilt or innocence of the defendant. Within that ambit, his testimony can be of assistance to the court and perhaps a jury on the issue of admission ...