Tuesday, April 26, 2011

No To Police Officers in New Jersey Giving Jury Testimony That A Street Narcotics Transaction Was Observed

On April 4, 2011, the New Jersey Supreme Court in State v. McLean overturned a possession with intent to distribute conviction hold that a the police officer making an observation cannot give his opinion as to what he observed was in fact a narcotics transaction. Allowing such testimony would permit every arresting officer to opine on the guilt of the accused in every case. The Supreme Court made it clear that the only party in a criminal case that can make that determination is the trier of fact, and in most cases that would be the jury.

The question now remains as to whether the hypothetical question asked of the State’s expert witness in every intent to distribute CDS case is still good law in light of McLean.

In State v. Odom, 116 N.J. 65 (1989), the New Jersey Supreme Court held that a State can qualify an expert cop witness who can testify that the quantity of drugs seized was for distribution and not personal use.

Under the Odom case, in using the hypothetical question format the prosecutor is permitted to elicit from the “cop expert”, without using the name of the defendant, whether the facts as alleged by the observing officers amounts to possession of a controlled dangerous substance with intent to distribute, and not possession for personal use. In that question the cop is giving an ultimate opinion as to guilt or innocence of defendant, why is that any different than the holding in McLean?

More information on defending the narcotics drug case go to the Law Office of Vincent J. Sanzone, Jr.

Law Office of Vincent J. Sanzone, Jr.
P.O. Box 261
277 North Broad Street
Elizabeth, N.J. 07207

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