Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
In the next series of blogs my office is going to discuss the current status of evidentiary proofs required by New Jersey courts to prove DWI cases as New Jersey moves toward allowing personal use possession and consumption of marijuana once Chris Christie leaves office and a possible democratic governor takes charge. There are substantial chances, regardless of who is in the governors office in New Jersey, that recreational marijuana will become legal as a means to fill the tremendous budget shortfalls New Jersey continually experiences year after year. The New Jersey Supreme Court and Appellate Division courts have decided a number of cases over the last 20 years, including this most recent case we will be addressing, which have laid the ground work to enable “properly trained and experienced” police officers to testify as to their observations alone in order to prove a marijuana based DUI/DWI with and even possibly without blood test toxicology results.
Facts:
The pertinent facts of this case are the police officer’s testimony offered by the state, was used to prove the defendants were operating a drug distribution ring. The state offered the officer’s testimony regarding drug related ‘slang and code words’ used during a recorded wiretap of many conversations. The detective testified about the meaning of many words and phrases the codefendants stated with slang words used during numerous entire conversations. The detective testified based on his personal knowledge, training and experience being involved in hundreds of drug related investigations and wiretap investigations, what the words meant in the conversation. The state did not offer the officer as a “expert “but rather as a lay witness with the training, knowledge and skill to testify of his first hand knowledge. The issue in this case is whether the officers testimony was provided as a fact witness, also known as a lay witness, or as an expert. In New Jersey and other State and federal courts there is a distinction between a lay witness and an expert witness in the testimony they are going to provide.
What is a Lay Witness: The Hyman court states:
“Lay opinion testimony is governed by N.J.R.E. 701, which states: If a witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness’ testimony or in determining a fact in issue.” The witness’s perception must “rest[] on the acquisition of knowledge through use of one’s sense of touch, taste, sight, smell or hearing.” State v. McLean, 205 N.J. 438, 457 (2011) (citations omitted); see also N.J.R.E. 602 (“Except as otherwise provided by Rule 703 (bases of opinion testimony by experts), a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”). Examples include opinions about a vehicle’s speed, based on seeing or hearing it go by; and a person’s intoxication, based on seeing, hearing, and smelling the person. Ibid. (citations omitted). As the McLean Court explained, police officers may also offer lay opinions on such subjects as a person’s narcotics intoxication, ibid. (citing State v. Bealor, 187 N.J. 574, 588-89 (2006)); the point of impact between vehicles involved in a collision, id. at 459
Although courts have “referred as well to the officer’s training and experience,” to justify admitting the officer’s testimony as lay opinion, “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.” Ibid. “[U]nlike expert opinions, lay opinion testimony is limited to what was directly perceived by the witness and may not rest on otherwise inadmissible hearsay.” Id. at 460. Furthermore, lay opinion must assist the jury either in understanding the witness, or determining a fact in issue. N.J.R.E. 701. In that respect, it is no different from expert opinion. “[T]estimony in the form of an opinion, whether offered by a lay or an expert witness, is only permitted if it will assist the jury in performing its function.” McLean, supra, 205 N.J. at 462. In other words, “[t]he Rule does not permit a witness to offer a lay opinion on a matter ‘not within [the witness’s] direct ken . . . and as to which the jury is as competent as he to form a conclusion[.]'” Id. at 459 (quoting Brindley v. Firemen’s Ins. Co., 35 N.J. Super. 1, 8 (App. Div. 1955)).
The Court gave an example of a helpful lay opinion that is of particular note here. The Court stated: Thus, for example, a lay witness was permitted to offer an opinion about the meaning of street slang that defendant used during a conversation relating to a crime because it was “unfamiliar to the average juror, . . . [it] was of assistance in determining the meaning and context of his conversation with defendant and was obviously relevant to the issue of defendant’s motive and intention.” [Id. at 458 (quoting State v. Johnson, 309 N.J. Super. 237, 263 (App. Div.), certif. denied, 156 N.J. 387 (1998)).] In McLean, the Court concluded that an officer was not authorized to offer his lay opinion that the defendant had engaged in a drug-related transaction, based on observed interactions between defendant and another person. Id. at 463. The Court explained that the officer “presumed to give an opinion on matters that were not beyond the understanding of the jury.” Ibid. Furthermore, “it was an expression of a belief in defendant’s guilt . . . .” Ibid.
Expert Witness What is the difference then ? The Hyman court explains,
“By contrast, expert testimony depends on a witness’s “specialized knowledge” to address matters outside a juror’s understanding. N.J.R.E. 702 states: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” The rule embodies three requirements: “(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert’s testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.” State v. Kelly, 97 N.J. 178, 208 (1984); see also Torres, supra, 183 N.J. at 567-68. The McLean Court held that “a question that referred to the officer’s training, education and experience, in actuality called for an impermissible expert opinion.” 205 N.J. at 463. Likewise, we held in State v. Kittrell, 279 N.J. Super. 225, 236 (App. Div. 1995), that an officer’s testimony about the use of beepers in drug transactions should have been admitted as expert, not lay opinion, because it was based on his extensive experience in drug related arrests, and not his personal observations of the defendant using the beeper. In addition, an expert’s testimony must be “so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman.” Boland v. Dolan, 140 N.J. 174, 188 (1995) (internal quotation marks and citation omitted). Expert testimony is common in drug cases, because it “provides necessary insight into matters that are not commonly understood by the average juror, such as the significance of drug packaging and weight, scales and cutting agents, stash sites, the role of confederates, and other activities consistent with drug trafficking.” State v. Cain, 224 N.J. 410, 413 (2016). An expert may also testify about “identifiable logos on drug packaging . . . .” Id. at 426. However, the proponent must establish “the field of inquiry . . . [is] generally accepted such that an expert’s testimony would be sufficiently reliable.” Torres, supra, 183 N.J. at 568 (relying on “persuasive judicial decisions” to establish reliability of expert on gang practices and organization)
What about admissible evidence on the “ultimate issue” of drug dealing? The court addressed this issue because, if the jury hears the officer’s specific words of what the co-defendants were saying (about actually buying and selling drugs) testimony it will be highly influential and steal from the jury’s job to arrive at their own independent conclusions. The officer, in other words, would be actually proving his knowledge and opinion about the ‘ultimate factual issue’ of the case; drug dealing. The court stated: Our evidence rules provide that “otherwise admissible” expert testimony “is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” N.J.R.E. 704. However, the McLean Court held that in the context of a criminal trial, “experts may not, in the guise of offering opinions, usurp the jury’s function by . . . opining about [a] defendant’s guilt or innocence . . . .” 205 N.J. at 453; see also id. at 461 (stating “expert opinions may not be used to express a view on the ultimate question of guilt or innocence” (citing State v. Reeds, 197 N.J. 280, 300 (2009))); State v. Odom, 116 N.J. 65, 82 (1989).
Recently, in Cain, supra, 224 N.J. at 429, the Court jettisoned a procedure endorsed in Odom, supra, 116 N.J. at 80- 81, that had permitted an expert to testify as to a defendant’s state of mind, an ultimate issue in an intent-to-distribute case, without pronouncing the defendant’s guilt. The Court cautioned that hypothetical questions should only be used when necessary and that “no one is fooled when a hypothetical tracks the evidence” and removes the defendant’s name. Ibid.; see also State v. Simms, 224 N.J. 393, 408 (2016) (“The practice of assuming in a hypothetical question an unnamed ‘individual’ when every detail of the question makes clear the reference is to the defendant serves no purpose and will not dissipate the prejudice of inappropriate opinion testimony.”). The Cain Court reviewed federal and other states’ decisions rejecting expert testimony about a defendant’s “state of mind” in a narcotics prosecution that goes to an element of the offense. Id. at 428. The Court specifically referenced Fed. R. Evid. 704(b) — to which New Jersey has no analogue — which expressly states, “In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.” See ibid.
What about the testimony of a police regarding slang terms used by drug dealers in this case?
We now apply these principles to the admissibility of opinion testimony on drug culture slang or code words. We are aware of no holding by our courts on the need for such opinion testimony. Some such words may have entered the popular lexicon as a result of music, film, and other aspects of modern culture, obviating the need for opinion testimony. As such, a drug dealer’s “facially coherent conversation” may need no interpretation. See United States v. Garcia, 291 F.3d 127, 142-43 (2d Cir. 2002) (discussing factors to determine whether lay opinion was needed to interpret drug dealers’ conversation), cert. denied, 546 U.S. 878, 126 S. Ct. 173, 163 L. Ed. 2d 176 (2005).
Yet, other drug slang or code words remain beyond the average juror’s understanding, particularly those unique to a particular drug network. Thus, lay or expert opinion testimony about that jargon may be warranted. See State v. Nesbitt, 185 N.J. 504, 521 (2006) (Albin, J., dissenting) (stating that “[a]n average juror will not know the meaning of code language used by drug distributors,” and an expert’s testimony may serve to enlighten the jury on such “arcane subjects”); cf. Torres, supra, 183 N.J. at 573 (noting that jurors would need assistance in understanding “the significance of particular gang symbols”); Johnson, supra, 309 N.J. Super. at 263 (permitting a lay opinion that the expression “get paid” referred to payment in sex as well as money). See Nesbitt, supra, 185 N.J. at 514 (“Trial courts are expected to perform a gatekeeper role in determining whether there exists a reasonable need for an expert’s testimony, and what the parameters of that testimony may be.“). Furthermore, once the court permits such testimony, it must guard against opinions that stray from interpreting drug code words, and pertain to the meaning of conversations in general and the interpretation of “ambiguous statements that were patently not drug code.” State v. Dukagjini, 326 F.3d 45, 55 (2d Cir. 2003), cert. denied, 541 U.S. 1092, 124 S. Ct. 2832, 159 L. Ed. 2d 259 (2004); see also United States v. Wilson, 484 F.3d 267, 278 (4th Cir. 2007) (noting that portions of an expert opinion went beyond witnesses to ‘decipher’ the codes drug dealers use and testify to the true meaning of the conversations.”); Defendant does not question the need for opinion testimony to interpret alleged slang or code words, nor does he question that Fox had the experience to qualify as an expert witness. Also, he does not address whether, consistent with Kelly and Torres, Fox applied a reliable methodology, based on his training and experience, to interpret the terms defendant used in the overheard conversations.
What does this mean in 2017 if and when marijuana becomes legal in the DWI setting? Under this case and the State v Bealer, 187 N.J. 574, 588-89 (2006), the state will be able to have an officer testified based on his “knowledge, training, skill, and experience” and be accepted by the court as both a lay person and expert witness. Regardless, the officer’s testimony will be introduced to the court as a means to deliver the ultimate issue of intoxication possibly with out the corroborating blood test that there is a substance, marijuana, causing the intoxication.
Other recent cases have enabled the court to find the defendant guilty of driving under the influence of an intoxicating substance, so long as the officers testimony is that of a lay witness based on his personal first hand knowledge. The court here is merely extending the nature and extent of the police officers ability to testify as both a lay witness and expert based on his first hand knowledge, training and skill.