The Distinction between What You Saw and What You Think You Saw in Testimony

Submitted by New Jersey Drug Crime Lawyer, Jeffrey Hark

A reversal and remand for new trial is not extremely common. The prejudicial threshold necessary for a judge to reverse a conviction made by the verdict of a jury is high. But that’s just what happened in State v. Firman, decided May 21, 2015, and this case is a good opportunity to examine different kinds of testimony in a criminal trial.

Firman was charged with various drug possession and distribution offenses resulting from an incident where he allegedly sold crack cocaine to a father/son pair. The State called Detective McDonald to the stand because he had observed the alleged exchange. According to N.J.R.E. 701 a lay witness may present opinions or inferences if it is

  1. rationally based on the perception of the witness
  2. will assist in understanding the witness’ testimony or in determining a fact in issue

A pivotal case, State v. McLean, which set the standard for determining when a lay witness’ testimony becomes impermissible, defined perceptions of the witness as “the acquisition of knowledge through use of one’s sense of touch, taste, sight, smell or hearing.”

In the Firman case the detective testified that :

  1. he had witnessed a hand-to-hand narcotics transaction
  2. crack cocaine was distributed (and that he knew this based on his training and experience)
  3. amount of crack cocaine found was worth approximately $50 to $60
  4. middle-men and runners in the drug trade often don’t carry cash so it was not unusual the defendant did not have money on his person

According to State v. McLean the line between factual testimony and expert testimony is that factual testimony is based on the perception of the officer from his senses (i.e. sight, smell, touch, hearing) whereas expert testimony gets into belief, thought, suspicion, and opinion. N.J.R.E. 702 allows expert testimony if the witness is offered and qualified as an expert, the testimony will assist the trier of fact to understand evidence or determine a fact in question, and it relates to a subject that is beyond the understanding of the average person. Here, the detective testified as an expert would, often referencing his experience and training, but was never qualified as an expert. He also testified as to the ultimate issue, here being the guilt of the defendant in selling drugs. When an investigating or arresting officer improperly testifies as an expert there is a significant risk of prejudicing the jury because a great deal of deference is already granted to police, especially in comparison to a criminal defendant. Therefore in this case the Appellate Division found that the risk of undue prejudice was significant enough to raise a reasonable doubt as to whether the jury would have otherwise reached the same result and the conviction was reversed and remanded for a new trial.

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