Every participant in a jury trial has a defined role. The judge manages the trial and acts as a judge of the law. S/he will rule on legal issues that arise during pre-trial proceedings, supervise jury selection, rule on issues of law that arise during trial, instruct the jury on the applicable law, and then supervise jury deliberations. The State and defendant each have their own lawyers who present evidence, challenge and test the evidence of their opponent, and generally advocate their client’s position. The jury is the judge of the facts. It listens to the evidence presented in the courtroom during the trial subject to the judge’s legal rulings, and determines whether or not the facts of the case – as presented in accordance with our rules of procedure and evidence – supports each element of each criminal charge that the State has brought against the defendant. Thus, the jury is the fact-finder. Its job is to determine the facts of the case. In a pair of recently decided cases, our Supreme Court re-affirmed that fact-finding is the jury’s province, and that interfering with this function runs roughshod over fundamental principles of our trial process.
In Cain, Hackensack police detectives were conducting a surveillance of defendant’s home. The detectives, who were in an unmarked vehicle, allegedly observed a hand-to-hand exchange between defendant and another individual on the porch. They then followed the individual who, upon realizing that he was being followed, dropped an object on the ground. The detectives retrieved the object, which was found to be crack cocaine. Several days later, an officer observed another transaction between defendant and one or more individuals in front of defendant’s house, and later recovered two envelopes of heroin. Testimony indicated that the heroin was purchased from the defendant. The officers obtained a search warrant for defendant’s house, and recovered cocaine, heroin, a digital scale and baggies.
Like Cain, the facts in Simms were straight-forward and relatively easy to decipher. Atlantic City detectives conducting a surveillance near a housing project observed a silver car park near a curb. The driver reclined his seat so that he could not be easily observed, but raised his head periodically to look around. A red car then parked in front of the silver car. The driver of the red car approached the silver car and handed an object to the driver of the silver car in exchanged for what was believed to be US currency. A detective saw the driver of the red car, the defendant, lean into the silver car and then walk away, but did not actually see an exchange. The detectives did, however, see the defendant place “something” in his back pocket. Following his arrest, the detectives approached the silver car and observed a bundle of heroin on the back passenger seat, which was later found to have the logo “Sweet Dreams”. Another detective then approached the red car and saw the passenger stuffing something down the rear of her pants, which was later found to be bags of heroin stamped with the same logo.
At each trial, the State offered “expert” witnesses in the areas of drug use and distribution. The “experts” were presented with “hypotheticals” that were strikingly similar to the facts of the cases being tried. In light of those “hypotheticals”, the “experts” concluded that the defendants in these cases had, in fact, each engaged in illegal drug distribution schemes. Put somewhat differently, the “experts” in each case essentially told the jury that the defendants were guilty of the charged narcotics offenses before the jury heard the balance of the evidence and the judge’s instructions on the law, and before it could reach an independent conclusion as to guilt or innocence based upon deliberations conducted in accordance with applicable procedural rules. The Supreme Court correctly reversed the decisions of the lower courts, and vacated the convictions.
The Court found that expert testimony can properly be used to assist a jury to understand topics and issues that are outside the ken of the average juror, but an expert cannot be asked to offer an opinion on the ultimate issue of fact in the case. This is particularly true in cases like Simms and Cain, where the facts are relatively uncomplicated. The ultimate issue – which is whether or not the facts presented at trial support a finding of guilt as to each element of each charged drug offense – was for the jury to decide. In essence, the State’s “experts” in each case simply listened to a summary of the State’s case in the purported form of a hypothetical, and then offered their “expert opinion” that an individual conducting such activities was, in fact, engaged in the illegal distribution of narcotics. In light of this “expert” testimony, it was a no-brainer for a jury to convict a defendant, regardless of any other testimony or instructions received from the judge. However, it rendered jury deliberations – a process that is supposed to be somewhat sacrosanct – essentially meaningless. The fact that these “experts” were ruling on the ultimate issue(s) of fact in these cases improperly intruded on the role of the jury, which is supposed to be the trier of fact. As such, the convictions had to be vacated.
Our jury system is incredibly expensive and inefficient. We use it because we truly believe that this is the best way to determine whether the facts of a specific incident or event support a finding of guilt. The State’s use of “expert” testimony in these cases intruded on the jury’s function as trier of fact by turning the jury into what amounted to little more than a rubber stamp of guilt for the purported “expert’s” opinion.
James S. Friedman, LLC represents defendants accused of narcotics crimes in the State and federal courts of New Jersey and New York City. If you have drug charges, contact us immediately to start planning your defense.