State v. Kelvin L. McLean a/k/a Kevin McLean (A-98-09)
HELD: The opinion offered by the officer does not meet the requirements needed to qualify it as a lay opinion and permitting the officer to testify about his opinion invaded the fact-finding province of the jury.
1. The familiar standards governing expert opinion testimony are found in three separate rules. See N.J.R.E. 702, 703, 705. An expert is one who is qualified “by knowledge, skill, experience, training, or education” and who is therefore permitted to offer testimony in the form of an opinion that “will assist the trier of fact to understand the evidence or to determine a fact in issue.” N.J.R.E. 702. Experts, unlike other witnesses, are permitted to rely on information that would otherwise be hearsay, and to present it to the jury, if others in their field of expertise reasonably and customarily do so. N.J.R.E. 703; see N.J.R.E. 705 (governing disclosure by experts and manner of questioning experts). The Court has held, in its seminal decision, that because expert opinions in narcotics prosecutions are governed by N.J.R.E. 702, such testimony is limited to “relevant subject[s] that [are] beyond the understanding of the average person of ordinary experience, education, and knowledge,” State v. Odom, supra, 116 N.J. at 71. Expert testimony is not admissible if the transactions at issue occurred in a straightforward manner. Moreover, experts may not, in the guise of offering opinions, usurp the jury’s function by, for example, opining about defendant’s guilt or innocence or about the credibility of parties or witnesses. Unless confined to their proper role, expert opinions may present the risk of undue prejudice to defendants. As for the use of hypothetical questions, although permissible, their use is not unbounded. The Court has imposed a number of safeguards, including that defendant’s name not be included in the question or answer and that the judge should instruct the jury that they are not bound by the expert’s opinion because the decision about guilt is theirs alone.
2. Lay opinion testimony can only be admitted if it falls within the narrow bounds of testimony that is based on the perception of the witness and that will assist the jury in performing its functions either by helping to explain the witness’s testimony or by shedding light on the determination of a disputed factual issue. Perception rests on the acquisition of knowledge through use of one’s sense of touch, taste, sight, smell or hearing. Although our appellate court, in explaining lay opinion testimony, has referred as well to the officer’s training and experience, 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. There are, however, limits that have traditionally been imposed on lay opinion testimony. For example, unlike expert opinions, lay opinion testimony is limited to what was directly perceived by the witness and may not rest on otherwise inadmissible hearsay.
3. The Court has established the boundary line that separates factual testimony by police officers from permissible expert opinion testimony. On one side of that line is fact testimony, through which an officer is permitted to set forth what he or she perceived through one or more of the senses. On the other side, the Court has permitted experts with appropriate qualifications, to explain the implications of observed behaviors that would otherwise fall outside the understanding of ordinary people on the jury. In this appeal, the State suggests, and the appellate panel agreed, that there is a category of testimony that lies between those two spheres, governed by the lay opinion rule. The Court does not agree. To permit the lay opinion rule to operate in that fashion would be to authorize every arresting officer to opine on guilt in every case. The testimony of the police detective – because it was elicited by a question that referred to the officer’s training, education and experience – in actuality called for an impermissible expert opinion. To the extent that it might have been offered as a lay opinion, it was impermissible both because it was an expression of a belief in defendant’s guilt and because it presumed to give an opinion on matters that were not beyond the understanding of the jury. In the final analysis, the approach taken to this testimony by the trial court and the Appellate Division would effectively authorize an officer both to describe the facts about what he or she observed and to opine in ways that the Court has precluded previously. The Court declines to permit the lay opinion rule to be so utilized
