April 6, 2011

Today in State v McClean, the NJ Supreme Court reversed a drug conviction which had been partially based upon use of the so called “lay opinion rule” where the police officer testified based upon his training and experience as to what constituted intent to distribute. This type of issue is a hot topic in DWI law as well since State v Bealor alllowed officers to testify upon their training and experience as to marijuana intoxication. The Court here finds that either you are an expert or a lay witness but there is no in between. In the Courts words:

“The Court has established the boundary line that separates factual testimony by police officers from permissible expert opinion testimony. On one side of that line is fact testimony, through which an officer is permitted to set forth what he or she perceived through one or more of the senses. On the other side, the Court has permitted experts with appropriate qualifications, to explain the implications of observed behaviors that would otherwise fall outside the understanding of ordinary people on the jury. In this appeal, the State suggests, and the appellate panel agreed, that there is a category of testimony that lies between those two spheres, governed by the lay opinion rule. The Court does not agree. To permit the lay opinion rule to operate in that fashion would be to authorize every arresting officer to opine on guilt in every case. The testimony of the police detective – because it was elicited by a question that referred to the officer’s training, education and experience – in actuality called for an impermissible expert opinion. ”
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