THE GOVERNMENT’S USE OF EXPERT WITNESSES IN NEW JERSEY DRUG CASES

For approximately twenty years, New Jersey’s Supreme Court has authorized the use of expert witnesses to provide opinion testimony as to whether an accused possessed a controlled dangerous substance (CDS) for personal consumption or for sale to others. This type of opinion evidence usually followed other testimony where the government will elicit information from the expert relating to the relevancy of, among other things, the weight and quality of the substance, the existence of paraphernalia, such as scales, dilutants and packaging at the arrest site, the location of the substance and the conduct of the accused.

While the Court determined that such a rule was necessary to educate jurors about the shadowy and arcane world of drug trafficking, it also recognized that the nature of this opinion evidence could cause jurors to forfeit their sacred fact-finding responsibilities to the testimony of a police officer expert. As a result, the Court instructed trial judges to function as a “gate-keepers” in this sensitive area to determine if there is a reasonable need for an expert in each case and, if so, the proper scope of that testimony.

Last month, the Supreme Court rendered a decision that seemed to curtail the use of expert testimony in a drug case involving a motor vehicle stop, where a significant quantity of heroin and a smaller quantity of marijuana were found in the front seat area of a motor vehicle, occupied by a driver and two passengers, one of whom was in the back seat. During the trial, the government’s expert witness was allowed to testify that all three occupants had constructive possession of the drugs with the intent to distribute them. In the criminal justice system, an accused can possess an object without actually having it in his/her hand or on his/her person. One can constructively possess an item if it is shown that the person knows of the identity of the item, where it is located and the intention and capacity to control it. Obviously, the question of whether each of the occupants had construction possession of the drugs was a material issue in the case. With the help of the expert’s testimony on the issue, all three defendants were convicted.

In an opinion, with one dissent, the Court concluded that the expert’s opinion mimicked the statute to such a close degree on such an important issue that the conviction had to be reversed. Equally important, the Court ordered the reversal, even though some of the accuseds' counsel failed to object to the testimony when it was offered and the trial court ultimately sought to cure the problem with an ineffective limiting instruction to the jury both of which are trial events that make the reversal of a conviction extremely difficult.