The law in New Jersey has allowed the government to use expert witnesses to explain the nuances of drug transactions for a good number of years. In 2003, the Supreme Court in a case titled State v. Summers, endorsed the conviction of a defendant convicted of possession with intent to distribute a drug/CDS where an expert witness testified that defendant was in possession of drugs/CDS for purposes of distribution and not for his own personal use.  Later in 2005, an appellate panel in a case titled State v. Boston, held that a qualified expert in a drug case, could not testify that in his opinion the transaction between defendant and a third-party was an the illegal narcotics transaction. These seemingly inconsistent rulings were influenced by the special facts of each case.

In the Boston case, investigating police officers observed defendant talk to a third-party. After the conversation, defendant went to an another individual and obtain some packages, returned to the third-party, who gave defendant some money. At the time of defendant’s arrest, she was not in possession of any drug/CDS and had a limited amount of money. Later, the investigating officers found a bag with a significant quantity of drugs/CDS in the area where defendant received the packages from the other individual.   Notably, these packages of drugs/CDS had a special stamp on each of them that matched the packaging retrieved from the third-party. At trial, the government's expert testified that what he observed was a "illegal narcotics transaction."  The defendant appealed her conviction.  The appeal focused on the expert’s testimony.

In analyzing the issue, the Appellate Division distinguished its ruling from the Supreme Court’s decision in Summers by noting that in Summers the defendant was in possession of a rather large quantity of drugs/CDS at the time of his arrest, which was a fact, absent in the case before the Appellate Division. The court also looked to a case titled State v. Baskerville, where another appellate panel determined that it was improper for a government expert to testify that the suspect subject of his observation “was selling narcotics".  The court also observed that the question put to the expert in the Summers case was more pointed and direct.  Finally, the court determined that although there was sufficient information for the jury to determine that defendant was involved in a drug distribution scheme the government was not entitled to use an expert to "salvageable a potential insufficient case" by providing an opinion that may have presumed facts not in evidence before the jury.