State v. Fortin

Justice RIVERA-SOTO,

concurring in part and dissenting in part.

In large measure, I concur with the majority in this case, most notably in respect of the result reached. There are, however, differences in both analysis and scope that prevent me from fully joining the majority. I address our points of similarity and divergence separately.

I.

A heinous crime has been committed here; the condition of Melissa Padilla’s battered, forcibly raped and strangled body leaves no room to doubt that her death was the result of means most foul. The only issue in this case is one of identity: was defendant the actor who brutally sexually assaulted and murdered Padilla? Two separate sources of evidence answer that question. The first of these is Padilla’s body that, through forensic proofs, bears witness not only to the crimes committed but to the identity of her murderer as eloquently as if she testified from the witness *608stand. The second core source of evidence is Maine State Trooper Vicki Gardner, who was the victim of unspeakable crimes that, but for the fact that she survived, are identical to the crimes visited on Padilla. More importantly, however, Trooper Gardner can identify defendant as the person who committed those crimes on her. That identification is unassailable: defendant admitted his guilt to the attack on Trooper Gardner by his guilty pleas to those crimes.

Stripped to its essence in its now third appearance before this Court, this case presents the question whether and to what extent this victim is permitted to confront her accused murderer in the only way she now can, a consideration that must inform our analysis whenever we speak of “context” in this case.

II.

I entirely endorse the conclusion set forth in Section III.A of the majority’s opinion. That is, in the unique circumstances of this case, the admissibility of the bite-mark evidence as signature-crime evidence should be conditioned on the presentation by the prosecution of expert testimony connecting the “known” bite-marks — those defendant admittedly inflicted on Trooper Gardner — with the “questioned” bite-marks inflicted on Padilla, the victim of this murder. Ante, 189 N.J. at 597, 917 A.2d at 757 (2007). My agreement with that conclusion stems from the very Rule that permits expert opinion testimony; that is, we permit “scientific, technical, or other specialized knowledge [if it] will assist the trier of fact to understand the evidence or to determine a fact in issue[.]” N.J.R.E. 702. Because “ ‘[t]he test of need for expert testimony is whether the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the party was reasonable[,]’ ” Scully v. Fitzgerald, 179 N.J. 114, 127, 843 A.2d 1110 (2004) (quoting Butler v. Acme Markets, Inc., 89 N.J. 270, 283, 445 A.2d 1141 (1982)), and identifications using bite-marks are well outside a juror’s common judgment and experience, expert testimony in that limited setting is required.

*609III.

I do not agree, however, with the conclusion set forth in Section III.B of the majority opinion that, as a condition precedent to that required expert testimony, the State must “provide defendant with a database of cases supporting [that] expert testimony[.]” Ante, at 597-98, 917 A.2d at 757. I reject the now almost talismanic effect the term “database” has acquired in the two earlier iterations of this case, a brooding presence that permeates the majority’s present analysis. See State v. Fortin (I), 162 N.J. 517, 745 A.2d 509 (2000); State v. Fortin (II), 178 N.J. 540, 843 A.2d 974 (2004).

Our Rules of Evidence clearly announce the conditions precedent to the qualification of an expert: to be qualified, the expert must possess “knowledge, skill, experience, training, or education” in the area of expertise. N.J.R.E. 702. See also State v. Moore, 122 N.J. 420, 458-59, 585 A.2d 864 (1991) (explaining, under prior rule, that “[a] witness qualifies as an expert ... if there is evidence of the required experience, training or education” (internal quotation marks omitted)); State v. Odom, 116 N.J. 65, 71, 560 A.2d 1198 (1989) (holding that “witness offered as an expert must, of course, be suitably qualified and possessed of sufficient specialized knowledge to be able to express such an opinion and to explain the basis of that opinion”). Thus, as a general proposition, a party proponent should not be required to produce a “database” before an expert is qualified to testify. All that should be required for expert qualification is what is set forth in the Rules, nothing more. To the extent Fortin I or Fortin II impose any additional burden on the qualification of an expert, I reject them.

However, even if qualified under N.J.R.E. 702, an expert is not permitted to tender an opinion that is not firmly tethered either to the facts in evidence or to data outside the record. N.J.R.E. 703. That, in a nutshell, is “the net opinion rule, which forbids the admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data.” State v. Townsend, 186 N.J. 473, 494, 897 A.2d 316 (2006). Stated differently, “the *610net opinion rule ‘requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion.’ ” Ibid. (quoting Rosenberg v. Tavorath, 352 N.J.Super. 385, 401, 800 A.2d 216 (App.Div.2002)). The required “why and wherefore” may be satisfied without the production of a “database.” Indeed, the experts here — a medical examiner and a forensic odontologist— certainly should be able to testify that, by virtue of their “knowledge, skill, experience, training, or education,” they can identify the characteristics of a bite-mark and compare a “known” bite-mark, that is, one for which the bite pattern or methodology is known to come from a specific person, with a “questioned” bite-mark from someone not yet identified. In that setting, the reliance by an expert on a “database” speaks to the weight to be afforded the expert’s testimony, and not its admissibility. Thus, again, to the extent Fortin I or Fortin II require any additional burden on the admissibility of an opinion by a qualified expert, I reject them.1

Responding to these concerns, the majority speaks exclusively of the testimony of Dr. Levine, the forensic odontologist, comparing the bite-marks on Padilla with defendant’s dental impressions. Yet, it is deafeningly silent in respect of the testimony tendered by Dr. Natarajan, the medical examiner, who remarked on the uniqueness of these bite-marks based on her more than twenty-five years of experience as a coroner performing autopsies.

The issue presented boils down to this: what is required to allow those experts to opine that the bite-marks in this ease are sufficiently unique to permit the identification of defendant as *611Padilla’s murderer? Nothing in the majority’s reasoning overcomes the plain language of what we require as the basis for an expert’s opinion. That is, it must be based on the expert’s “knowledge, skill, experience, training, or education” in the area of expertise. N.J.R.E. 702. To claim that N.J.R.E. 705 empowers a trial court to demand the production of a database as a condition precedent to testimonial admissibility is an unwarranted expansion of that Rule. All Evidence Rule 705 requires is that the expert explain the basis for his or her opinion, the “net opinion rule” earlier described in the text. Indeed, that Rule allows an expert to testify based on hypothetical facts. If hypothetical facts are sufficient to support an expert’s opinion, what then is the principled basis for focusing exclusively on the production of a factual “database” as a condition precedent to an expert’s opinion? That is the abuse of discretion the majority overlooks and, parenthetically, one for which I do not fault the able trial judge, who merely sought to implement our earlier rulings.

In essence, the majority appears to require a “database” to prove the 'probability of the match between the assault on Trooper Gardner and Padilla’s murder. Yet, “[historically, statistical evidence has not been a prerequisite to the admission of matching samples.” State v. Noel, 157 N.J. 141, 146, 723 A.2d 602 (1999). Analogously, “expert testimony about matching soil and hair samples has been deemed admissible, with the weight of the evidence left to the jury.” Ibid. Moreover, this Court has emphasized that “the production of a large quantity of comparable samples affects the weight, not the admissibility, of the evidence.” Id. at 147, 723 A.2d 602 (emphasis supplied). Thus, this case’s historical obsession with a “database” as a condition to be satisfied before any matching can occur is unwarranted and without precedent.

IV.

I concur in the result achieved in Section IV of the majority’s opinion, but for reasons different than those announced. According to the majority, the other aspects of the brutal assault on *612Trooper Gardner described by the majority should be admitted because “[placing the bite-mark evidence in context mil permit the jury to better fulfill its truth-seeking function.” Ante, at 600, 917 A.2d at 758. Yet, while the majority admits into evidence the details of the assault on Trooper Gardner as providing “context” for that assault, I am of the view that all of the facts of defendant’s assault on Trooper Gardner should be admissible for identification purposes, as additional points of comparison between the “known” assault on Trooper Gardner and the “questioned” assault on Padilla.

That a larger universe or more numerous constellation of similar factors between two separate events greatly aids in determining whether the events were performed by the same actor is so intuitive that it eschews the need for authority. It is self-evident that the greater the number of points of comparison available, the more reliable the identification made therefrom. It is for that specific reason that we allow for the admission of evidence of other crimes in order to prove the identity of the actor, N.J.R.E. 404(b), particularly when, as here, “the crimes were committed in so distinctive and unusual a manner that they may be said to be the handiwork of the same person!,]” ante, at 594, 917 A.2d at 755. In that setting, allowing the non-bite-mark aspects of the “known” assault on Trooper Gardner to be used not only for context but substantively in determining whether the same person also assaulted and murdered Padilla only enhances the reliability of the identification ultimately made, something that inures to the betterment of both defendant and the State and produces a result in harmony with the truth-seeking function of this trial.

There is no principled analytical difference between the use of signature-crime factors to prove identity and, for example, the use of fingerprints to prove identity. In fingerprint analysis, up to one hundred points of comparison between a “known” print and a “questioned” print can be established. United States v. Mitchell, 145 F.3d 572, 575 (3d Cir.1998). Despite that number, identity can be determined reliably by as few as seven points of comparison. *613Ibid.2 It certainly goes without saying that any points of comparison in addition to the applicable minimum only can enhance the reliability of the identification. For that reason, once a fundamentally reliable match is made — in this ease, bite-mark to bite-mark, or as in fingerprints, once the minimum points of comparison are determined — -all remaining identifying factors should be admissible to enhance the reliability of the proof of identity, and not just by way of context.3 See United States v. Clemons, 32 F.3d 1504, 1508-09 (11th Cir.1994), cert. denied, 514 U.S. 1086, 115 S.Ct. 1801, 131 L.Ed.2d 728 (1995) (rejecting defendant’s claim that his prior similar crimes were not admissible to prove identity because they were not sufficiently peculiar or idiosyncratic to amount to signature crimes, and considering all points of similarity between the two crimes); United States v. Miller, 959 F.2d 1535, 1539 (11th Cir.), cert. denied, 506 U.S. 942, 113 S.Ct. 382, 121 L.Ed.2d 292 (1992) (holding that totality of the prior similar crime was admissi*614ble to prove identity despite many aspects of prior crime were not independently sufficiently peculiar to prove identity).

V.

I address last the admissibility of the comparisons run through the FBI’s Violent Criminal Apprehension Program (ViCAP). The trial court refused to admit those comparisons, ruling that ViCAP was not properly crafted as an identification device and that it did not meet the requirements for admission as an exception to the hearsay rule. The majority concludes that the ViCAP proofs, standing alone, do not qualify under the business records exception to the hearsay rule, N.J.R.E. 803(e)(6), or under the public records exception to that rule, N.J.R.E. 803(c)(8). Ante, at 604, 917 A.2d at 761.

If the prosecution, without more, separately offers either the ViCAP system as a whole or the single ViCAP form generated in respect of the assault on Trooper Gardner, I agree with the majority that such evidence, standing alone, is inadmissible hearsay. However, if either the ViCAP system or any of its components is used by a properly qualified identification expert in generating an opinion, the hearsay rale is inapplicable provided the information is not offered for the truth of the matter asserted, N.J.R.E. 801(c), and the information is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject[,]” N.J.R.E. 703. See Ryan v. KDI Sylvan Pools, Inc., 121 N.J. 276, 289, 579 A.2d 1241 (1990) (holding that “a court [must] make an inquiry into and a finding on whether experts in the given field rely on certain information. If such reliance be found, then it is presumed to be reasonable”). To the extent the majority’s holding is so sweeping as to disallow all uses of the ViCAP evidence, including any proper non-hearsay use, I must dissent.

For affirmance as modified/remandment — Justices LONG, LaVECCHIA, ZAZZALI, ALBIN and WALLACE — 5. Concur in part/dissent in part — Justice RIVERA-SOTO — 1.

According to the majority, I have "dismantled an argument that is not even before the Court.” Ante, at 599 n. 10, 917 A.2d at 758 n. 10. On the contrary, the foresight of this Court's imposition of a database required in Fortin I and Fortin II is precisely what is called into question in this appeal. In short, by engrafting into this case a condition precedent to the admissibility of evidence not otherwise based on our Rules of Evidence or decisional law, this Court's prior rulings extract from the trial court the fundamental exercise of evidentiary discretion our Rules properly vest in trial judges. For that reason, the trial court's attempt to apply an unfounded rule cannot be faulted.

Although the Federal Bureau of Investigation requires twelve points of comparison for a positive identification, Hall v. DiPaolo, 72 F.3d 243, 245 n. 1 (1st Cir.), cert. denied, 518 U.S. 1010, 116 S.Ct. 2535, 135 L.Ed.2d 1058 (1996), "[t]he International Association of Identification Officers considered, according to the testimony, that eight to twelve characteristics as points of comparison are sufficient to be a valid basis for drawing a conclusion!,]” Schleicher v. Wyrick, 529 F.2d 906, 909 (8th Cir.1976).

The majority seeks to distinguish the comparisons made using fingerprints by noting that fingerprint evidence is tendered by experts and thus asserting that, somehow, it makes a difference. Ante, at 602 n. 12, 917 A.2d at 759 n. 12. Ido not agree. For example, even if a fingerprint expert testifies that he or she has made a positive identification of a defendant based on fingerprint comparisons, that cannot suffice to bar from the jury’s consideration additional testimony that the defendant was of a specific height, weight, build, complexion, or ethnic background, or that the defendant wore distinctive clothing or jewelry, or that the defendant displayed other identifying physical characteristics. All of those factors aid in making the identification more reliable and a proper identification should be based on the aggregate of the factors. The majority cannot contend that any of those non-expert factors also must be vouchsafed by an expert or that a "database" in respect of those identifying characteristics is required as a condition precedent to any testimony. That is the point pressed here, one that remains unanswered by the majority.