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.

SEQUESTERING EXPERT WITNESSES IN DRUNK DRIVING TRIALS

Most experienced trial lawyers will always request the trial court to sequester the adversary’s witnesses. Literally, the word “sequester” means to place apart or segregate. The purpose of this type of trial application is to prevent a potential witness who is present in the courtroom from obtaining a “schooling” from the testimony of a prior witness. Absent some special circumstances, applications of this nature are generally granted. One of those exceptions relates to a litigant’s expert and that is so because an expert has the ability to assist the trial lawyer to develop and analyze facts presented by the adverse party, so as to allow an effective cross-examination.

Last week, the Appellate Division reversed a drunk driving (DWI/DUI) case, where a municipal court judge sequestered a defendant’s expert. The basis of the municipal court judge’s ruling was that the defendant’s lawyer could take notes of the government’s expert and then collaborate with the defendant's expert before cross-examination began. Although a Law Division Judge endorsed that rationale on an appeal from the defendant’s municipal court conviction the Appellate Division disagreed and reversed the conviction.

THE TWIN PROBLEM WITH DNA TESTING

This January thieves made off with over a million dollars of jewelry from a store in Berlin, Germany which happens to be one of the most luxurious department stores in the world. While the miscreants were able to avoid triggering the store’s sophisticated security system, they left behind a critical piece of evidence - a glove. The glove contained DNA material. Recently, the German authorities arrested a suspect with matching DNA characteristics.

There is a rub, however, the suspect has a twin brother. While the most advanced DNA test can distinguish DNA patterns between identical twins, Germany’s rules of criminal procedure will not allow the more advanced test result.

This scientific problem can create a whipsaw defense, where the suspect can claim that his brother was the real culprit. In short, there is a 50/50 chance that the cops got the wrong guy. Is that enough to convict? I doubt it.

RETRACTING A PLEA IN NEW JERSEY

If you think you can change your mind after you have pled guilty to a crime, think twice, and that is especially so, if you have been sentenced because in the words of a recent New Jersey Supreme Court case, you have a “formidable barrier.”

For years, a defendant’s decision to retract a guilty plea has caused confusion and sometimes chaos in the courtroom. This new decision seems to fix a bright line to a just result for this knotting problem. The new analysis is based on four separate factors. They are:
• the existence of a “colorable” claim of innocence.
• the reason for the defendant’s request to retract the plea.
• whether the plea was the result of a plea agreement.
• whether the retraction will result in an unfair advantage to the defendant or an unfair disadvantage to the accused.
The list is not magical, however. A failure of one element does not necessarily spell defeat. All factors must be considered and delicately balanced. As always, the decision will ultimately repose in the discretion of the trial court which is another interesting issue that we can get to on another occasion.

THE DUE PROCESS CLAUSE AND NEW JERSEY’S MOTOR VEHICLE COMMISSION

In the state of New Jersey, the Motor Vehicle Commission (Commission) has the discretionary authority to immediately suspend the driver’s license of a person who has caused a fatality while driving where certain traffic offenses are involved. Those offenses include: (1) speeding in excess of 20 m.p.h. above the posted limit; (2) drunk driving; (3) reckless driving; and, (4) leaving the scene of an accident. A new bill that is working its way through the legislature would expand those violations to circumstances where death results from an accident where the driver has a special learner’s permit, or a provisional driver’s license that limits the hours of operation or the number of passengers in the driver’s vehicle, as well as a violation of a condition placed on the driver’s license. This new bill would also make it mandatory for the Commission to suspend a driver’s license under these special circumstances. Notably, the Commission can suspend a driver’s license without notice to the licensed driver. There is a process in the statute, however, where a driver whose license has been suspended under this new statute can request a plenary hearing to upset the decision of the Commission.

This procedure seriously offends traditional notions of Due Process which requires, at the very least, notice and an opportunity to be heard. Hopefully, someone will test the validity of this bill if it ever becomes law.

THE FRAILTIES OF EYE-WITNESS TESTIMONY

Two weeks ago, the New York Bar Association presented a report that examined 53 cases where criminal convictions were overturned. In some of those cases, the accused had spend decades in prison for, among other things, murder, rape and other serious crimes. The study concluded that the major causes of these improvident convictions were human error, including false testimony, mishandling of evidence, coerced confessions, illicit law enforcement conduct. Most importantly, in 36 cases, it was found that the accused was convicted of faulty eye-witness identification.

In the next week or two, I will be posting on my website an article relating to the frailties associated with eye-witness testimony and the movement to fix the problem.

ANOTHER PITFALL OF SOCIAL NETWORKING

Here is another thought associated with the problems that may attend social networking.

Just recently, I read an article written in the New Jersey Law Journal, where the author suggested that the information posted on these sites can be used to obtain insight into a potential juror or witness and even a potential business associate.

The author beleives, as I do, that people who participate in social networking on the internet tend to disclose more of themselves then in a person-to-person conversation and while some services do not allow full access to the subscriber's profile information unless you are a "friend," others are not so restrictive.

Again, be very careful of the information you post on a social network site.