CRIMINAL/DRUG ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: ARRESTING OFFICER CANNOT OFFER AN OPINION AS TO WHETHER DEFENDANT'S POSSESSION OF DRUGS WAS WITH THE INTENT TO DISTRIBUTE

It has been well settlement in this jurisdiction that the government can offer the testimony of an expert witnesses in drug prosecutions. The basis of that principle of law is that the average citizen sitting in the jury box, cannot fully appreciate the sophisticated and sometimes secret nuances of drug trafficking. Consequently, the courts have allowed expert witnesses to testify about the difference between drugs in the possession of another with intent to distribute versus possession with intent to use. Experts can also disclose to a jury the methods of drug distribution as well as the various roles that people play on street-level distribution environment. Courts have recognized, however, that testimony of this type can have a prejudicial effect on the outcome these types of case and have consistently warned that these experts must steer clear of opinions on the ultimate issue of guilt. Other times, it has been observed that the risk of prejudice significantly advances when the expert is the investigating police officer.


Recently, the Appellate Division addressed an issue relating to this body of law. In that case, a patrolman observed a motorist operating a motor vehicle under circumstances where the patrolman believe that the operator was wanted for outstanding warrants. Resultantly, the police officer stopped the motorist, conducted a further investigation and perfected in arrest. During that process, the defendant dropped a package on the ground and kicked it under the car.  The package was retrieved and found to contain four individually wrapped packages of heroin.

At trial, arresting police officer testified that in his opinion the defendant was in possession of the CDS with intent to distribute. The core of his testimony was that in his experiences heroin addicts general use only two bags of the drug.

On appeal, the court reversed the conviction because it concluded that the investigating police officer was not qualified as an expert. Indeed, the court noted that the police officer had limited formal law-enforcement education and on-the-job training.