Expert Testimony of Police for Drug Cases

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

Expert Testimony on Drug Possession versus Possession with Distribution

In this case, State of New Jersey vs Jamison, the County Prosecutor identified one of their own investigator’s to be an ‘expert’ to testify what amount of drug possession equals possession with distribution, as opposed to just ‘possession’.  This can have a substantial effect on any plea being offered and and possible extended term exposure if you as a defendant go to trial and are found guilty.  Initially, the New Jersey Appellate Division addressed the use of ‘expert opinions’ in drug cases.  This court recognized that as well and opined:

“At the outset, we acknowledge the Court recently issued two opinions dealing directly with expert testimony in drug- distribution cases.  See State v. Cain, ___ N.J. ___ (2016) and State v. Simms, ___ N.J. ___ (2016). In Cain and Simms, the Court held “[g]oing forward, in drug cases, an expert witness may not opine on the defendant’s state of mind.” Cain, supra, ___ N.J. at ___ (slip op. at 25); see also Simms, supra, ___ N.J. at ___ (slip op. at 2) (explaining “[e]xpert testimony that a defendant possessed a controlled dangerous substance with the intent to distribute is nothing less than a pronouncement of guilt” and “not necessary to assist the jury”). The Court decided Cain and Simms during the pendency of this appeal.”

Since the seminal decision of State v. Odom, supra, 116 N.J. 65, courts have applied N.J.R.E. 702 to expert opinion testimony in drug-offense prosecutions. State v. McLean, 205 N.J. 438, 450 (2011). Only expert testimony concerning “relevant subject[s] that [are] beyond the understanding of the average person of ordinary experience, education, and knowledge” are admissible. Ibid. (alterations in original) (quoting Odom, supra, 116 N.J. at 71). In a drug-distribution case, an expert generally may testify about distinguishing characteristics of drugs possessed for distribution and those kept for personal use. Odom, supra, 116 N.J. at 76. This expert testimony aids ordinary jurors who may not appreciate the significance of these characteristics to the issue of whether they were possessed for distribution purposes. Ibid.

After the State has laid a proper foundation and introduced at trial certain evidence, such as the manner of packaging, processing for use or distribution, the significance of quantities and concentrations of narcotics, the roles of drug paraphernalia, and the circumstances surrounding possession, among other pertinent information, the expert should be presented with a hypothetical question limited to this evidence. Id. at 81-82. Through this hypothetical, the expert may advise the jury how these facts relate to the issue of possession. Id. at 82. “Having set forth this information in the form of a hypothetical, the expert may be asked if, based on these assumed facts, he or she has an opinion whether the drugs were possessed for personal use or for the purpose of distribution.” Ibid.

The court then goes on to examine the specific questions asked by the state here, and how it was not actually ‘hypothetical’ questions.  Rather, the state’s witness, was asked specific questions which were directed to the defendant’s state of mind…… “Was he possessing the drugs for his personal use or distribution??”  The court ruled:

Detective Kiely was not asked a hypothetical question; he was specifically asked if the amount of cocaine in S-16 is consistent with personal use. The import of this non- hypothetical question went directly towards defendant’s state of mind. After our review of the direct examination leading up to this question, which focused on the transformation of powder cocaine into crack cocaine, we find it too does not reflect the type of hypothetical questioning contemplated in Odom and subsequent case law.”

The failure to ask proper hypothetical questions of Detective Kiely is further exacerbated by the opinion testimony of Officer Bledsoe, especially considering the State’s theory that defendant intended to distribute crack cocaine. Officer Bledsoe rendered improper opinion testimony when he testified that several seized items contained evidence of suspected crack cocaine.  Unlike expert opinion testimony, factual testimony “is an ordinary fact-based recitation” that relates an officer’s first- hand perceptions and does not include opinions or “information about what the officer ‘believed,’ ‘thought’ or ‘suspected.'”  McLean, supra, 205 N.J. at 460 (emphasis added). Lay opinion testimony falls between these ends of the spectrum and is governed by N.J.R.E. 701. Lay opinion testimony “may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness’ testimony or in determining a fact in issue.” N.J.R.E. 701.

Officer Bledsoe’s testimony was not merely an ordinary factual recitation; he explained he “suspected” several items contained evidence of crack cocaine, an inference based in part on his training and experience. Officer Bledsoe’s testimony was also not proper lay opinion testimony. To be rationally based on perception, “a lay opinion must be the product of reasoning processes familiar to the average person in everyday life.” State v. Brockington, 439 N.J. Super. 311, 322 (App. Div. 2015) (citation omitted). But the average person generally cannot determine whether a package contains cocaine; rather, this requires training and experience. Ibid.; see also McLean, supra, 205 N.J. at 462-63 (relying on an officer’s training, education, and experience may result in impermissible expert opinion testimony).

        Although the testimony at issue did not draw an objection, its cumulative effect was “clearly capable of producing an unjust result,” R. 2:10-2, requiring a reversal of defendant’s convictions. See State v. Weaver, 219 N.J. 131, 155 (2014) (explaining a court should reverse a conviction “[w]hen legal errors cumulatively render a trial unfair” (citing State v. Orecchio, 16 N.J. 125, 129 (1954))). Undoubtedly, Kiely’s expert testimony directly opining defendant’s cocaine was not for personal use impacted the jury, laymen who may not understand the significance of the quantity of a drug. See Odom, supra, 116 N.J. at 76, 81-82. Likewise, this error was compounded by Bledsoe’s improper opinion testimony that various other — untested — seized items contained suspected crack cocaine, statements which surely influenced the jury on the issue of possession and further buttressed Kiely’s opinion defendant intended to distribute cocaine.