State v. McLean, 205 N.J. 438 (N.J. 2011)

HELD: The opinion offered by the officer does not meet the requirements
needed to qualify it as a lay opinion and permitting the officer to testify
about his opinion invaded the fact-finding province of the jury.

1. The familiar standards governing expert opinion testimony are found in
three separate rules. See N.J.R.E. 702, 703, 705. An expert is one who is
qualified "by knowledge, skill, experience, training, or education" and who
is therefore permitted to offer testimony in the form of an opinion that
"will assist the trier of fact to understand the evidence or to determine a
fact in issue." N.J.R.E. 702. Experts, unlike other witnesses, are permitted
to rely on information that would otherwise be hearsay, and to present it to
the jury, if others in their field of expertise reasonably and customarily
do so. N.J.R.E.
703; see N.J.R.E. 705 [*6] (governing disclosure by experts and manner of
questioning experts). The Court has held, in its seminal decision, that
because expert opinions in narcotics prosecutions are governed by N.J.R.E.
702, such testimony is limited to "relevant subject[s] that [are] beyond the
understanding of the average person of ordinary experience, education, and
knowledge," State v. Odom, supra, 116 N.J. at 71, 560 A.2d 1198. Expert
testimony is not admissible if the transactions at issue occurred in a
straightforward manner. Moreover, experts may not, in the guise of offering
opinions, usurp the jury's function by, for example, opining about
defendant's guilt or innocence or about the credibility of parties or
Unless confined to their proper role, expert opinions may present the risk
of undue prejudice to defendants. As for the use of hypothetical questions,
although permissible, their use is not unbounded. The Court has imposed a
number of safeguards, including that defendant's name not be included in the
question or answer and that the judge should instruct the jury that they are
not bound by the expert's opinion because the decision about guilt is theirs
alone. (Pp. 11-21)

2. Lay opinion testimony can [*7] only be admitted if it falls within the
narrow bounds of testimony that is based on the perception of the witness
and that will assist the jury in performing its functions either by helping
to explain the witness's testimony or by shedding light on the determination
of a disputed factual issue. Perception rests on the acquisition of
knowledge through use of one's sense of touch, taste, sight, smell or
hearing. Although our appellate court, in explaining lay opinion testimony,
has referred as well to the officer's training and experience, the analysis
of admissibility has been, as it must be, firmly rooted in the personal
observations and perceptions of the lay witness in the traditional meaning
of Rule 701.
There are, however, limits that have traditionally been imposed on lay
opinion testimony. For example, unlike expert opinions, lay opinion
testimony is limited to what was directly perceived by the witness and may
not rest on otherwise inadmissible hearsay. (Pp. 21-27)

3. 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 [*8]
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. To the extent that it might have been offered
as a lay opinion, it was impermissible both because it was an expression of
a belief in defendant's guilt and because it presumed to give an opinion on
matters that were not beyond the understanding of the jury. In the final
analysis, the approach taken to this testimony by the trial court and the
Appellate Division [*9] would effectively authorize an officer both to
describe the facts about what he or she observed and to opine in ways that
the Court has precluded previously. The Court declines to permit the lay
opinion rule to be so utilized. (Pp. 27-32)

The judgment of the Appellate Division is AFFIRMED in part and REVERSED in
part. Defendant's convictions for the two possessory offenses are affirmed
and the matter is REMANDED for a new trial on the charges of third-degree
possession of a controlled dangerous substance (heroin) with intent to
distribute, and third-degree possession of a controlled dangerous substance
(heroin) with intent to distribute within 1000 feet of a school property.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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