A. Expert Witnesses



In cases involving the possession of a CDS, intent is a very important consideration. As explained, the penalties for possession of a CDS with intent to distribute are a lot more serious than a simple possession offense. Issues in a legal contest that relate to a person's intent create difficult proof problems largely because those issues are subjective in nature. Intent can be explained, however, by the circumstances associated with the person's conduct.

In cases under the Drug Statute the government will use not only circumstantial evidence to prove that a CDS was in a person's possession with the intent to distribute, but also, expert testimony. The intellectual basis for the use of expert testimony in a drug case is that an ordinary juror can not understand the significance of some of the circumstances attending a person's possession of a CDS.

Thus, in most, if not all cases involving a charge of possession with intent to distribute the government will use an expert witness with special experience or education in the illicit distribution of a CDS to obtain an opinion as to whether the accused was in possession of the CDS for the purpose of distributing it. In this effort, the government will ask questions of the expert to establish the existence of certain facts that signal possession for a commercial purpose including: (1) the quantity of the CDS; (2) the quality of the CDS; (3) the value of the CDS; (4) the nature of the packaging of the CDS; (5) the location of the arrest; (6) the presence of any drug paraphernalia; and, (7) the presence of large sums of money .

Once some or all of these facts are established the government's lawyer will next ask the expert the ultimate question and that is whether the accused was in possession of the CDS with intent to distribute.

While an expert may provide an opinion about a person's intent to distribute a CDS, the law will not allow an expert to provide an opinion as to the person's guilt. As observed by a dissenting justice of the New Jersey Supreme Court there is little distinction between the two factual propositions.

The use of an expert witness in a drug case will not be allowed if there is a straight forward hand-to-hand drug transaction or if the testimony will be unduly prejudicial to the citizen. Moreover, both the government and its witness must steer clear of questions or testimony that tends to mimic the language of the Drug Statute.

B. Informer's Privilege

Most states have certain rules that protect the identity of police informers. In New Jersey the Informer's Privilege is covered by a rule of evidence that states in essence that an informer's identity does not have to be disclosed. The rule is grounded upon a recognition that government agents can secure information about criminal activity from people associated with criminals only if the government can provide them with anonymity.

The rule is not absolute, however. A court may determine that disclosure is required because it is relevant or "essential to a fair determination of cause. Without a strong showing of need, courts will generally deny a request for disclosure. Thus, the privilege will apply even if the informer introduced the government agent to the arrestee and observed the criminal transaction, but did not participate in it. Disclosure may be required if the informer is an essential witness on a basic issue, actively participated in the crime, the defendant has a reasonable entrapment defense, or any other reasons that would make it unfair not to disclose. The court will only make decisions of this nature on a case-by-case basis where all available factors can be analyzed, including the safety of the informer.

C. Surveillance - Location Privilege

On many occasions the government will set up a surveillance location where its agents can observe and sometimes film drug transactions. The vantage point of these locations may prove to be very important when testing the observations of any investigating police officer. On the other hand, the government will want to keep these locations confidential so as to allow continued effectiveness in interdicting unlawful drug transactions.

To accommodate these compelling and important policy issues, a trial court will initially require the government in a drug case to show that it is entitled to the Surveillance-Location Privilege by proving that a disclosure of the location would endanger lives or property or compromise pending or future prosecutions. Unfortunately, neither the accused nor his/her lawyer can be present when the government presents its proofs on this issue.

If, however, facts are developed at trial that show that non-disclosure of the location will unduly prejudice the defendant's case, the court will be required to conduct a second hearing where the accused and his/her lawyer are present and all of the proofs can be challenged and analyzed.

In all cases, an accused can cross-examine a law enforcement account about the distance from the crime, the elevation of the location the use of the binoculars and other similar devices.

Copyright (c) 2008 Frank Luciano