How the Use of Experts in Criminal Cases is Different from Experts in Civil Cases

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

State vs. Green

Earlier this week we wrote a blog addressing the requirement for experts in civil cases to provide testimony regarding a defendant’s duty, breach of that duty, and the causal relationship to a plaintiff’s damage. These are civil burdens of proof the plaintiff is obligated to satisfy.

In this criminal case the police used a confidential informant to conduct controlled purchases of marijuana from the defendant. With the C.I.’s affidavit in hand, the prosecutor’s office obtain a search warrant from a judge enabling them to search the defendant’s car and apartment. When the police executed the warrant on the defendant’s home an inventory was conducted at photos taken of all of the places where drugs were found, paraphernalia was found, which included Ziploc bags scales and small Ziploc bags with marijuana contained in them.  At trial the prosecutor’s office had one of their narcotics detectives testify concerning his “expert” opinions about what was allegedly going on at that defendant’s property.

Drug Possession with Intent to Distribute Rather than Personal Use

In this important case the Appellate Division reviewed the use of such state “experts” to provide testimony to a jury regarding the facts surrounding “intent” of a defendant in “drug distribution” criminal cases.

In this case, and often and many others the state attempts to use experts to communicate and persuade the jury regarding how the evidence; scales, money, baggies and small quantities of marijuana, constitutes possession with “intent” to distribute drugs as opposed to simple possession for personal use.

In the 1989 decision of State v. Odom the New Jersey Supreme Court enabled prosecutors’ experts to testify regarding this issue and issued a guideline for the prosecutors to follow.  The expert was not directly allowed to testify concerning the facts of the case in front of him to the jury and whether the alleged  behavior constituted “intent to distribute”.

However, the prosecutor, through the use of hypothetical questions posed to the expert (which questions contained facts identical to the facts and circumstances of the evidence of the very case in front of the jury) was able to provide an opinion that those hypothetical facts constituted “intent” to distribution.  The present appellate court panel recognized that this resulted in abuses where the expert would step over the line and provide opinions or conclusions concerning ultimate questions of fact which were within the jury’s purview.

Expert Witness and Interpreting Defendant’s “Intent”

As a result, in the 2016 case of State v. Cain the New Jersey Supreme Court change direction due to the difficulty of enabling or allowing the state to present such hypothetical testimony without encroaching on the jury’s ultimate fact finding job.  The court declared, “expert witnesses may not provide opinions addressing the defendant’s state of mind concerning his or her intent based on the evidence.” That “intent” or “state of mind” of the defendant’s is ultimately an issue of fact to be decided by the jury.

In this case the court found the questions asked and the testimony provided by the state clearly created prejudicial error because the testimony took away the questions of fact job about ‘intent’ from the jury.

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