Despite the language of N.J.R.E. 705, hypothetical
questions are required where the State uses expert
testimony on the issue of whether narcotic are possessed
for distribution. State v. Odom, 116 N.J. at 81-82; State
v. Montesano, 298 N.J. Super. at 619. Where a
hypothetical question is employed, it need not include all
the facts, and the adversary may on cross-examination
supply omitted facts and ask the expert if his opinion
would be modified by them. It is advisable that such a
question be impersonal. However, the use of actual
names when necessary or helpful does not, of itself,
destroy the hypothetical nature of the question. State v.
Doyle, 77 N.J. Super. 328, 338-39 (App. Div.), aff’d, 42
N.J. 334 (1964).
B. Expert Testimony Based on Hearsay
In State v. Burris, 298 N.J. Super. 505 (App. Div.),
certif. denied, 152 N.J. 187 (1997), the Appellate
Division reversed defendant’s conviction for murder,
despite the overwhelming evidence of her guilt, finding
that the trial judge had conditioned her right to present
psychiatric evidence upon her taking the stand and
testifying. The court acknowledged that experts cannot
be a conduit for hearsay. In this case, however, the
hearsay problem could have been solved by limiting the
expert testimony to include only hearsay used as a basis
for the expert’s opinion, and by instructing the jury that
the hearsay was not substantive evidence on the question
of guilt or innocence, but only as evidence in support of
the expert’s conclusion. Also, a trial court should instruct
the jury that the expert’s opinion is only as sound as the
proofs of the facts upon which it rests. See also State v.
Martini, 131 N.J. 176, 278 (1993); State v. Farthing,
331 N.J. Super. 58, 77 (App. Div. 2000); State v. D.R.,
214 N.J. Super. 278, 285 (App. Div. 1986), rev’d o.g.,
109 N.J. 348 (1988). It is improper to attack the
credibility of a defendant’s expert by cross-examining
him on details of inadmissible hearsay on which he did
not rely in forming his opinion. State v. Farthing, 331
N.J. Super. at 79.
The testimony of an expert witness may be based
upon hearsay, if that hearsay consists of tests performed
by an individual under the supervision of the witness.
State v. Stevens, 136 N.J. Super. 262, 264 (App. Div.
1975). In Stevens, the Appellate Division held that a
prosecution expert witness could testify about the
presence of spermatozoa on tissue papers at the scene of
the rape. The positive results of the test corroborated the
victim’s version of the crime. The test was performed by
a laboratory assistant of the expert witness and under the
supervision of the expert witness. The Stevens court held
that expert opinion testimony based on hearsay was
admissible and that the modern rule, to which New
Jersey adheres, does not require the personal performance
of tests as a prerequisite to the admission of expert
testimony based on the results of such tests. Id. at 264-
265.C. Qualification of Expert WitnessThe following is a suggested method of qualifying a
witness:- Name and address.
- What is your profession or occupation?
- Where is your office or laboratory located?
- Of what has your general education consisted?
- How long have you been engaged in your present
occupation? - During this period where have you been so
engaged? - During this period of time have you made a special
study of the matter in question? (State specific
area) - Of what has this special study consisted?
- Have you testified previously with regard to the
subject in question? - How many times have you testified?
- Have you published any articles with regard to
the subject in question? - Name these publications?
- Are you a member of any professional
associations? - What are these organizations?
IX. FRESH COMPLAINT
The fresh complaint doctrine provides that evidence
may be adduced that the victim of a sexual assault
complained of the assault within a reasonable period of
time to a person to whom the victim would normally turn