it would have taken for the commission of an integral part
of the crime charged. The Appellate Division held this
was error because such experiments must be conducted
while evidence is being received and there exists an
opportunity for the defendant to cross-examine and
otherwise assure the integrity of the experiment. The
observation of the test by the trial court, even in the form
of judicial notice, could not justify the failure to conduct
the test at a time while evidence was still being received.
The defendant in State v. Gear, supra, was charged
with possession of lottery slips which, upon the approach
of the arresting officer, the defendant dissolved in a
container of water. The Appellate Division held that it
was within the discretion of the trial court to permit a
detective to testify as to his tests of water soluble paper
and to conduct before the jury, an experiment with water
soluble paper when the purpose of the demonstration was
only to show the existence of water soluble paper.
VIII. EXPERT WITNESS (See also, SCIENTIFIC
and TECHNICAL EVIDENCE, infra)
A. Generally
Expert testimony in New Jersey is generally governed
by N.J.R.E. 702 through N.J.R.E. 706, formerly Evid. R.
56(2) and (3), 57, and 58. N.J.R.E. 702 provides:
If 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.
N.J.R.E. 703 addresses the bases of an expert’s opinion:
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to the expert at or before the
hearing. If of a type reasonably relied upon by experts in
the particular field in forming opinions or inferences
upon the subject, the facts or data need not be admissible
in evidence.
An expert opinion is not objectionable even if it
embraces an ultimate issue to be decided by the trier of
fact. N.J.R.E. 704.
It is not necessary that questioning of an expert
witness take the form of hypothetical questions, unless
the trial court, in its discretion, orders otherwise.
N.J.R.E. 705. While prior disclosure of the underlying
facts or data for an expert opinion need not be disclosed
prior to the expert’s testimony, absent a court order
otherwise, the expert may be required to disclose those
facts or data on cross-examination. Id.There are three basic requirements for the admission
of expert testimony:- the intended testimony must concern a subject
matter that is beyond the ken of the average juror; - the field testified to must be at a state of the art
such that an expert’s testimony could be sufficiently
reliable; - and the witness must have sufficient expertise to
offer the intended testimony. State v. Kelly, 97 N.J. 178,
208 (1984).
The true issue on admissibility is not whether the
subject matter is a common or uncommon when, or how
many persons have knowledge of the matter, but rather
whether the person offered as an expert has peculiar
knowledge or experience not common to the world which
renders his opinion, based on such knowledge or
experience, an aid to the fact finder in determining the
questions at issue. State v. Berry, 140 N.J. 280, 291
(1995), citing Rempfer v. Deerfield Packing Corp., 4 N.J.
135, 141-42 (1950); see also State v. Papasavvas, 163 N.J.
565 (2000); State v. Jamerson, 153 N.J. 318, 337 (1998);
State v. Odom, 116 N.J. 65, 70 (1989); State v. Zola, 112
N.J. 384, 414 (1988), cert. denied, 484 U.S. 1022
(1989); State v. Kelly, supra; State v. Chatman, 156 N.J.
Super. 35, 40-41 (App. Div.), certif. denied, 79 N.J. 467
(1978).Thus, a qualified expert may testify regarding the
modus operandi of narcotics traffickers. State v. Berry,
140 N.J. at 290-93; State v. Odom, supra; State v.
Montesano, 298 N.J. Super. 597, 619-20 (App. Div.),
certif. denied, 150 N.J. 27 (1997); but see, State v.
Baskerville, 324 N.J. Super. 245, 258-63 (App. Div.
1999); State v. Singleton, 326 N.J. Super. 351 (App. Div.
1999).The key is whether the opinion will aid in the jury’s
deliberations. In State v. Spann, 130 N.J. 484 (1993),
the Supreme Court held that expert opinion testimony
on the probability, based on an application of Bayes’
Theorem, that a defendant charged with a sexual assault
was the father of the victim’s child would not aid the jury
in its deliberations and created a substantial danger of
misleading the jury. In State v. Noel, 157 N.J. 141