A. [Detective]: Okay.
Q. And they’re traveling from New York City on Route 95 so that you know that they're coming out of New York. And the individuals are traveling in the vehicle at night, approximately a little before 9 p.m. on a weeknight. They’re driving in an erratic fashion, pulled over. The front passenger and the rear passenger, back passenger at some point are asked their names and they give false names. An officer who asks the front passenger for their paper work smells marijuana in the vehicle and notices in the vehicle an open container of beer.
After that, later found in the vehicle, in the front passenger section, right between—on the floor in front of the seat but where their feet would be are found loose folds of what’s determined to be heroin and also scattered on the floor are— by the feet of the front passenger are six bags of marijuana and underneath the seat are found fifteen bricks of heroin, determined to be heroin, as well as found additionally is a sixteenth brick. That sixteenth brick had been opened so that there were forty bags and seven or eight various loose folds.
On the back passenger assume is found cigars or brown cigarettes, Phillies. And on the persons of the individuals are found a totality of currency of nine hundred fourteen dollars.
Q. Assuming all those hypothetical facts, do you have an opinion as to why the drugs, specifically the heroin, totaling several hundred bags or folds, would be possessed?
A. My opinion they would be possessed with the intent to distribute.
Q. And would that opinion be as to suspects one, two and three?
A. All constructive possession with the intent to distribute.
New Jersey Evidence Rule 702 permits the admissibility of expert testimony, “[i]f 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.”
This rule only allows the expert to testify as to specialized knowledge and not has to his personal opinion as to any fact or issue that the jury can readily determine without an expert. Thus, if the expert gives an opinion as to a hand transaction, exchange of money, or other facts which one does not need to be an expert to understand, the opinion must be excluded.
Therefore, the prosecutor has the burden of proving three elements before the expert will be allowed to testify.
1. The intended testimony concerns a subject matter beyond the ken of an average juror;
Example. “Now this hypothetical person that you are talking about, the amount of cocaine found on his person’s would not be a lot for a person with a day habit of 42 bags of heroin a day.”
Example. “Every junkie or user of illegal drugs have different levels of tolerance.
Example. “Some have very high tolerance.”
Example. “What were the markings on the package?”
Accordingly, the hypothetical question must concern itself with: (1) the manner of packaging and processing for use or distribution, (2) the significance of various quantities and concentrations of narcotics, (2) the roles of various drug paraphernalia, (3) characteristics of the drugs themselves, (4) the import of circumstances surrounding possession, (5) the conduct of the possessor and the manner in which drugs may be secreted or otherwise possessed for personal use or [distribution].