STATE OF NEW JERSEY v. SCOTT M. CAIN

In State v. Odom, 116 N.J. 65, 80-81 (1989), we held that

an expert witness in a drug-distribution case could testify to

the ultimate issue of fact -- whether a defendant possessed

drugs with the intent to distribute. We cautioned, however,

that the expert’s testimony should not amount to a pronouncement

of guilt. Allowing an expert to offer an opinion on a

defendant’s guilty state of mind in a drug case while

prohibiting the same expert from offering an opinion on

defendant’s guilt are not easily reconcilable principles. In a

series of cases since Odom, we have attempted to curtail the

misuse of expert testimony that has intruded into the jury’s

exclusive role as finder of fact. Odom’s approval of expert

testimony on the state of mind of a defendant in drug cases also

has spawned lengthy and intricate hypothetical questions that

have the appearance of a prosecutorial summation. We therefore

must revisit whether such ultimate-issue expert testimony is

appropriate in a drug-distribution case.

Expert testimony in many drug-distribution cases provides

necessary insight into matters that are not commonly understood

by the average juror, such as the significance of drug packaging

and weight, scales and cutting agents, stash sites, the role of

confederates, and other activities consistent with drug

trafficking. However, once the jury is informed about the

peculiar characteristics of a drug-distribution scheme, the

average juror is well-equipped to make the final determination

whether a defendant possessed the requisite mental state to

commit a drug offense. That determination does not require

special expertise; it requires the sound judgment of jurors, who

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rely on their life experiences, common sense, and collective

reasoning in rendering a verdict.

In the case before us, the prosecutor posed a hypothetical

question to a law-enforcement drug expert. The question

extended onto three trial transcript pages and elicited the

expert’s opinion that defendant intended to distribute drugs.

Defendant was found guilty of committing a number of drug

offenses. The Appellate Division affirmed those convictions.

We reverse and hold that the expert’s testimony --

following the lengthy and intricate hypothetical question --

exceeded appropriate bounds and encroached on the jury’s

exclusive domain as finder of fact. The hypothetical not only

resembled a mid-trial summation encapsulating every minor detail

of the case, but also permitted the expert to opine on

defendant’s state of mind -- whether he intended to distribute

drugs. Expert testimony opining on that ultimate issue of fact

was not necessary to assist the jury. The jurors were perfectly

capable of deciding that issue on their own.

We conclude that the use of the expert testimony in this

case had the clear capacity to cause an unjust result. We also

note that any probative value to the prosecutor’s repetitive

references to a judge-issued search warrant for defendant’s home

was outweighed by its prejudicial impact. We therefore vacate

defendant’s drug convictions and remand for a new trial.

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I.

Defendant Scott M. Cain was charged in a seven-count Bergen

County indictment with third-degree distribution of cocaine,

N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); third-degree

distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A.

2C:35-5(b)(3); first-degree maintenance of a facility for the

manufacture of controlled dangerous substances, N.J.S.A. 2C:35

4; second-degree possession of cocaine with the intent to

distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3);

third-degree possession of heroin with the intent to distribute,

N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); third-degree

possession of cocaine, N.J.S.A. 2C:35-10(a)(1); and third-degree

possession of heroin, N.J.S.A. 2C:35-10(a)(1). The charges

arose from defendant’s alleged involvement in two separate drug

sales and the storing of drugs in the house where he resided.

During a four-day jury trial, the State elicited the

following evidence in support of its case.

On July 16, 2008, Detective Demetrius Carroll and Officer

James Smith of the Hackensack Police Department were conducting

a surveillance of 369 DeWolf Place in Hackensack, a house where

defendant lived with his mother. That day, the officers

observed a hand-to-hand exchange between defendant and Donald

Hinson on the porch of the house. The officers followed Hinson

in an unmarked vehicle. When Hinson noticed that he was being

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followed, he dropped an object on the ground. The officers

stopped and arrested Hinson, and recovered the dropped item --

.20 grams of crack cocaine. Hinson testified at trial that

defendant sold him the drugs.

On July 28, 2008, while conducting surveillance of

defendant’s residence, Officer Smith observed defendant and

Jeffrey Beckham engage in a hand-to-hand transaction in front of

the house. Officer Smith and a fellow officer later stopped

Beckham to conduct a “field investigation.” The officers first

questioned Beckham and then seized a cigarette box and plastic

bag that he was holding. The officers discovered two glassine

envelopes containing .02 grams of heroin. Beckham was arrested,

and later testified at trial that he purchased the drugs from

defendant.

On August 6, 2008, officers of the Hackensack Police

Department executed a warrant to search 369 DeWolf Place.

Present in the house at the time were defendant’s mother,

defendant’s girlfriend, and the girlfriend’s young son. During

the search, the police seized: (1) 3 grams of crack cocaine

from defendant’s bedroom dresser drawer; (2) a bag of

approximately 15 grams of powdered cocaine, 100 purple Ziploc

baggies, and a digital scale from defendant’s bedroom closet;

and (3) 10 glassine envelopes with a red logo containing heroin

from a china hutch in the foyer.

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At trial, Detective Brett Rothenberger of the Bergen County

Prosecutor’s Office was qualified as an expert witness in the

area of drug use and drug distribution. The prosecutor posed a

hypothetical question, covering three transcript pages,

mirroring nearly all of the evidence presented by the State

against defendant, including defendant’s alleged drug

transactions with Hinson and Beckham. The following question

was tacked on to the end of the lengthy “hypothetical” facts:

“[D]o you have an opinion as to whether those narcotics were

possessed for personal use or possessed with the idea to sell?”

Detective Rothenberger responded that, in his opinion, the drugs

were possessed with the intent to distribute. The form of the

hypothetical question left no doubt that the subject was

defendant. In addition to opining about defendant’s state of

mind, Detective Rothenberger testified about the value and

packaging of the drugs, the location of the drugs, and other

indicia consistent with drug distribution.

Throughout the course of the trial, the prosecutor

repeatedly referenced that the search of defendant’s residence

was authorized by a warrant issued by the court. In his opening

statement, the prosecutor told the jury that “[a] search warrant

was then obtained, authorized by a Superior Court judge.” The

prosecutor returned to that theme, stating that information

about the drug transactions with Hinson and Beckham was included

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in “an affidavit for a search warrant” and that “[a] search

warrant [was] brought to a judge” because “[b]efore you can go

into somebody’s home under those circumstances, you need the

authority of a Superior Court judge.” In the course of

questioning witnesses, the prosecutor repeatedly elicited that a

warrant was secured to search defendant’s residence and

occasionally elicited that a Superior Court judge issued the

warrant.

The jury found defendant guilty on all counts except the

charge of maintaining a facility for the manufacture of

controlled dangerous substances. The trial court granted the

State’s application for an extended-term sentence and imposed a

sixteen-year term of imprisonment with an eight-year period of

parole ineligibility for second-degree possession of cocaine

with the intent to distribute. The court imposed concurrent

prison terms for three other convictions: four years for third

degree distribution of cocaine, four years for third-degree

distribution of heroin, and four years for third-degree

possession of heroin with the intent to distribute. The

remaining charges were merged into the second-degree intent-to

distribute conviction. Last, the court ordered that defendant

pay all applicable penalties and fines.

Defendant appealed.

II.

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In an unpublished opinion, the Appellate Division affirmed

defendant’s convictions, but reversed the sentence because the

record did not support the trial court’s finding of aggravating

factor number two, N.J.S.A. 2C:44-1(a)(2) (considering “gravity

and seriousness of harm inflicted on the victim”). The panel

remanded for a new sentencing hearing.

The panel found that the trial court did not commit plain

error by allowing the use of a hypothetical question. According

to the panel, the expert did not express an opinion regarding

defendant’s guilt, but merely characterized defendant’s conduct

based on the record, and therefore did not intrude into the

jury’s exclusive province as trier of fact.

The panel also rejected defendant’s argument that the

prosecutor’s repetitive references to the search warrant

constituted plain error. The panel believed that references to

the warrant explained that the police were authorized to search

defendant’s home and did not suggest that the judge who issued

the warrant acted on evidence not introduced at trial.

We granted defendant’s petition for certification. State

v. Cain, 219 N.J. 631 (2014). In addition, we requested that

the parties “file supplemental briefs addressing the rationale

and need for hypothetical questions in the trial of a drug case,

and the circumstances under which such questions may be used.”

We also granted the Attorney General leave to participate as

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amicus curiae.

III.

A.

Defendant argues that because the hypothetical packed all

of the prosecutor’s evidence into a single question, the expert

was allowed to give his “stamp of approval” to the State’s case

and to express a belief, inferentially, that defendant was

guilty of the crime. Defendant contends that because the

hypothetical included the assumption that defendant had sold

drugs to two buyers, the question began with the premise that

defendant was a drug dealer. He asserts that the expert’s

testimony should have been limited to assisting the jury’s

understanding of “the unfamiliar practices of the drug trade,”

such as “the significance of packaging, quantities, values, the

properties of illegal drugs, the presence or lack of use

paraphernalia,” and other indicia of drug trafficking. He also

asserts that the propriety of hypothetical questions “should be

resolved at a pre-trial hearing” and that expert testimony whose

prejudice exceeds its probative value should be excluded under

N.J.R.E. 403.

Additionally, defendant submits that the prosecutor’s

repeated and gratuitous references to the police possessing a

“court authorized warrant” to search defendant’s residence

“communicated to the jury that a ‘Superior Court Judge’ ‘in [the

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same] building’ had already heard the same evidence” and

determined that the State’s evidence “was credible and

reliable.” Defendant concludes that he was denied a fair trial

because he “had a right to have the jurors decide his guilt or

innocence untainted by the knowledge that a judge thought that

the evidence was sufficient to justify a search of [his

residence].”

B.

The State urges that we uphold defendant’s convictions and

reaffirm our rulings in Odom and successor cases that

“hypothetical questions are an appropriate tool . . . when

presenting the testimony of a drug distribution expert in cases

where a defendant’s mental state is at issue.” The State

contends that the hypothetical in this case conformed to case

law because “it focused on the issue of the intent to

distribute,” “did not ask the expert to opine [on] who possessed

the CDS,” and “appropriately factored into the hypothetical that

two prior distributions occurred.” Additionally, the State

argues that holding a pre-trial hearing to determine the

propriety of a hypothetical question is not practicable because

the facts to be incorporated into the question depend on trial

testimony. The State suggests that counsel should object “to

the hypothetical question when it is posed.”

The State submits that references to the search warrant

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during trial were necessary to explain that the police had legal

authority to enter defendant’s home. The State claims that

testimony about the warrant did not imply “that a judge had

already determined guilt” and that “any fleeting references” to

the search warrant did not have the capacity to deny defendant a

fair trial.

C.

The Attorney General, appearing as amicus curiae, submits

that expert testimony elicited by properly posed “hypotheticals

still play[s] an important role in drug prosecutions.” The

Attorney General notes that, since Odom, “well-established

principles have emerged governing the use of hypotheticals” and

that, in more recent cases, “explicit limitations and

restrictions have been placed to curb potential abuse.” The

Attorney General states that hypotheticals remain “a critical

tool for the jury in understanding the evidence at trial” and

that “[n]o special justification has been presented to

eliminate” their use in drug cases. The Attorney General is

confident that “any problems that have arisen in the past

concerning this area of our jurisprudence will be remedied” by

the recent guidance given by this Court.

IV.

A.

Defendant was charged with possession with intent to

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distribute the drugs seized from his home. Whether defendant

had the requisite state of mind to commit the offense -- the

intent to distribute -- was an ultimate issue of fact to be

decided by the jury.

The parties do not dispute that expert testimony is

necessary to assist the jury in understanding the significance

of packaging, weight, and concentration of drugs; drug

paraphernalia; the manner in which drugs are concealed; and the

peculiar characteristics of a drug-trafficking operation. The

issue is whether, after the jury is informed about the esoteric

features of a drug-distribution scheme, the jury needs the

expert’s assistance in determining the defendant’s state of mind

or whether the jurors are capable of rendering a decision on

that ultimate issue of fact by using their common sense and

experience to draw rational inferences from the evidence.

The beginning point of our inquiry must be our rules of

evidence. Under N.J.R.E. 702, expert testimony is permissible

“[i]f scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to

determine a fact in issue.” (Emphasis added). Expert testimony

“otherwise admissible is not objectionable because it embraces

an ultimate issue to be decided by the trier of fact.” N.J.R.E.

704 (emphasis added). Importantly, however, an expert’s opinion

is not admissible unless the “testimony concerns a subject

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matter beyond the ken of an average juror.” State v. Reeds, 197

N.J. 280, 290 (2009) (citing State v. Jenewicz, 193 N.J. 440,

454 (2008)). Expert testimony is not necessary to tell the jury

the “obvious.” State v. Nesbitt, 185 N.J. 504, 514 (2006).

Thus, expert testimony on the ultimate issue of whether a

defendant intended to distribute drugs is permissible only if it

“will assist the trier of fact to understand the evidence or to

determine a fact in issue,” N.J.R.E. 702, and “may be excluded

if its probative value is substantially outweighed by the risk

of . . . undue prejudice,” N.J.R.E. 403; State v. Sowell, 213

N.J. 89, 100 (2013).

If the witness possesses the requisite criteria to qualify

as an expert, he may testify “in the form of an opinion.”

N.J.R.E. 702. That opinion may be elicited by questions, which

“need not be hypothetical in form unless in the judge’s

discretion it is so required.” N.J.R.E. 705.

B.

The seminal case on the scope of expert testimony in drug

distribution cases is State v. Odom, 116 N.J. 65 (1989). In

Odom, this Court upheld the defendant’s conviction of possession

of cocaine with the intent to distribute based, in part, on a

police detective’s expert testimony that the defendant possessed

eighteen vials of crack with the intent to distribute. Id. at

78-79. In doing so, the Court stated “that as long as the

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expert does not express his opinion of defendant’s guilt but

simply characterizes defendant’s conduct based on the facts in

evidence in light of his specialized knowledge, the opinion is

not objectionable even though it embraces ultimate issues that

the jury must decide.” Id. at 79.

In reaching that conclusion, Odom set forth seemingly

irreconcilable principles that have bedeviled both practitioners

and courts. It stated, on the one hand, that “an opinion

[embracing ultimate issues] is permissible although it is

expressed in terms that parallel the language of the statutory

offense when that language also constitutes the ordinary

parlance,” id. at 79, and on the other hand, that “to the extent

possible, the expert’s answer should avoid the precise

terminology of the statute defining the criminal offense and its

necessary elements,” id. at 82. Although the Court in Odom

concluded that the expert’s opinion -- that the defendant

possessed cocaine with intent to distribute (the elements

necessary for conviction) -- was properly admitted, id. at 81,

it also concluded “an expert’s testimony that expresses a direct

opinion that defendant is guilty of the crime charged is wholly

improper,” id. at 77.

The Odom Court also advised that the expert should be posed

a hypothetical question, incorporating evidence adduced at

trial, and that “the defendant’s name should not be used.” Id.

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at 82. The Court maintained that an expert could explain to the

jury the significance of the facts through carefully phrased

hypothetical questions and then “the trial court should

carefully instruct the jury on the weight to be accorded to and

the assessment of expert opinion testimony.” Ibid.

State v. Summers, 176 N.J. 306, 312-17 (2003), involved the

application of the principles of Odom. In that case, after the

police observed the defendant engage in a suspected drug sale

with a buyer, both were taken into custody. Id. at 309. The

police caught the buyer placing four baggies of cocaine in his

mouth and recovered from the defendant a cigarette pack

containing fifty small baggies of cocaine -- identical to those

found on the buyer -- along with $262 and a pager. Id. at 309

10. At trial, the prosecutor asked a law enforcement drug

expert a hypothetical question, which contained details about

the surveillance and the items recovered from the suspects. Id.

at 310-11. The hypothetical designated the buyer as S-1 and the

defendant as S-2. Id. at 311. The prosecutor then asked the

expert: “Do you have an opinion as to whether S-2 in this

hypothetical . . . possessed those drugs for his own use or for

distribution?” Ibid. (alteration in original). The expert

expressed the view that S-2 possessed the drugs for

distribution. Ibid. The defendant was found guilty of multiple

drug offenses, including possession, possession with the intent

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to distribute, and distribution of a controlled dangerous

substance. Ibid.

In upholding the defendant’s conviction, the Court

indicated that although the expert testified that the defendant

possessed the drugs with the intent to distribute, the expert

did not cross the line by explicitly stating that “the defendant

is guilty of the crime charged.” Id. at 314-15 (quoting Odom,

supra, 116 N.J. at 80).

Summers simply followed the directives of Odom. The

prosecutor substituted a symbol, S-2, for the name of the

defendant, as Odom proposed. But the use of the symbol S-2 was

clearly understood as referring to the defendant, otherwise the

hypothetical would have been meaningless. Moreover, Summers,

like Odom, did not explain the distinction between a law

enforcement drug expert opining that a defendant possessed the

drugs with the intent to distribute and the expert opining that

the defendant is guilty of the offense of possession of drugs

with the intent to distribute.

After Summers, in a series of cases, this Court slowly

retreated from some of the broader implications of Odom. In

State v. Nesbitt, 185 N.J. 504, 507-10, 518 (2006), the Court

disapproved of a hypothetical question that led the police

expert to answer that B (the hypothetical’s substitute for the

defendant’s name) “was complicit in distributing drugs.” In

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that case, at the direction of the defendant, an accomplice

handed an undercover police officer crack cocaine in exchange

for ten dollars. Id. at 508. The defendant was convicted of

distribution of a controlled dangerous substance and related

offenses. Id. at 510.

Although we found that the admission of the expert

testimony did not constitute plain error, we expressed concern

that “Odom should not be misconstrued to signal our willingness

to accept, carte blanche, the use of hypothetical questions

asked of law enforcement experts in all drug charge settings.”

Id. at 514. We maintained that “an expert is not needed to

state that which is obvious,” id. at 507, that “expert testimony

must be about ‘a subject matter that is beyond the ken of the

average juror,’” id. at 514 (quoting State v. Kelly, 97 N.J.

178, 208 (1984)), and that “the wording of the expert’s answer

elicited by the hypothetical question did not adhere to our

admonition in Odom and Summers to avoid use of precise

terminology found in the statute,” id. at 508. We noted that

“[e]xpert testimony that recites the legal conclusion sought in

a verdict is not helpful to the jury,” id. at 517 (citing United

States v. Barile, 286 F.3d 749, 760 (4th Cir. 2002)), and

reminded our courts that they “are expected to perform a

gatekeeper role in determining whether there exists a reasonable

need for an expert’s testimony,” id. at 514.

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In State v. Reeds, 197 N.J. 280, 284-85 (2009), we reversed

the defendant’s conviction of possession of heroin with the

intent to distribute and the lesser charge of possession

because, in response to a hypothetical question, a police expert

testified that the defendant and two other occupants of a car

constructively possessed with the intent to distribute drugs

found in the vehicle. We held that “the expert’s constructive

possession opinion was tantamount to a legal conclusion,

resulting in a veritable pronouncement of guilt on the two

possession crimes.” Id. at 297. We noted, moreover, that “by

mimicking the language of the statute . . . the expert’s

testimony on constructive possession of drugs” was neither

probative nor helpful to the jury. Id. at 296-97. We stated

that “Odom’s continued application is not without boundaries”

and again “cautioned that ‘Odom does not license the use of a

narcotics expert to tell a jury that which is obvious.’” Id. at

293 (quoting Nesbitt, supra, 185 N.J. at 514). We concluded

that the expert’s “ultimate-issue testimony usurped the jury’s

singular role in the determination of defendant’s guilt and

irredeemably tainted the remaining trial proofs.” Id. at 300.

In State v. McLean, 205 N.J. 438, 443, 463 (2011), we

reversed the defendant’s possession-with-intent-to-distribute

convictions because a police officer, based on his surveillance

observations of the defendant handing an item to an individual

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in exchange for money, gave opinion testimony that a narcotics

transaction had occurred. We rejected the argument that the

officer’s testimony was permissible as either a lay or an expert

opinion. Id. at 461-62. We made clear that “expert testimony

[is] not admissible if the transactions at issue occurred in a

straightforward manner,” id. at 452 (citing Nesbitt, supra, 185

N.J. at 516), and that “experts may not, in the guise of

offering opinions, usurp the jury’s function by . . . opining

about defendant’s guilt or innocence,” id. at 453. In short, we

determined that expert testimony has no place when the jury is

fully able to grasp the meaning of facts without assistance.

Id. at 461.

More recently, in State v. Sowell, 213 N.J. 89, 93 (2013),

we critiqued the improper use of expert testimony in a drug

prosecution against the defendant, a prison inmate. In that

case, the State presented evidence that during a prison visit,

an individual passed to the defendant a bag of potato chips that

was later found to contain a balloon filled with thirty “decks”

of heroin. Id. at 94-95. The defendant contested that such an

exchange occurred. Id. at 93. A Department of Corrections

investigator, qualified as a drug expert, was given a

hypothetical question tracking the State’s evidence and

responded “[t]hat an exchange of narcotics took place.” Id. at

96.

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We stated that “[i]t is not appropriate to summarize

straightforward but disputed evidence in the form of a

hypothetical and then elicit an expert opinion about what

happened” because such an “approach improperly bolsters the

State’s proofs with expert testimony and can usurp the jury's

sole responsibility to find the facts.” Id. at 102. We also

indicated that the expert’s “testimony invaded the jury’s role

as the ultimate fact finder.” Id. at 93. We refrained from

reversing the defendant’s convictions “only because of the

overwhelming evidence of [his] guilt,” id. at 107, but “urge[d]

trial judges, in their role as gatekeepers, to be vigilant and

bar this type of testimony,” id. at 108.

C.

The value of expert testimony in drug cases, in general, is

not at issue in this case. The average juror is not

knowledgeable about the arcana of drug-distribution schemes.

Law enforcement officers with extensive training, education, and

experience of the drug world have “specialized knowledge [that]

will assist the trier of fact to understand the evidence or to

determine a fact in issue.” N.J.R.E. 702. Experts can help

jurors understand the indicia of a distribution operation, such

as how drug traffickers package and process drugs for

distribution. See Odom, supra, 116 N.J. at 73-75. Experts can

shed light on the significance of the quantities and

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concentrations of drugs, the value of drugs, the use of

identifiable logos on drug packaging, and the function of drug

paraphernalia, e.g., scales, baggies, and cutting agents. See

ibid.; Sowell, supra, 213 N.J. at 100-05; United States v.

Mejia, 448 F.3d 436, 441, 449 (D.C. Cir. 2006) (noting expert’s

testimony on significance of “drug logos associated with the

packaging of cocaine”), cert. denied, 549 U.S. 1137, 127 S. Ct.

989, 166 L. Ed. 2d 747 (2007). Experts may also provide insight

into the roles played by individuals in street-level drug

transactions, see State v. Berry, 140 N.J. 280, 301-02 (1995),

and into the various machinations used by drug dealers to thwart

detection, see Nesbitt, supra, 185 N.J. at 515. There are

undoubtedly other areas where a drug expert can offer needed

assistance to a jury.

Equally clear is that an expert should not express an

opinion on matters that fall within the ken of the average juror

or offer an opinion about the defendant’s guilt. Id. at 512-14.

Nor should an expert be used to bolster a fact witness’s

“testimony about straightforward, but disputed, facts.” McLean,

supra, 205 N.J. at 455. The jury brings a breadth of collective

experience, knowledge, and wisdom to the task. Expert testimony

is not necessary to explain to jurors the obvious. It is not a

substitute for jurors performing their traditional function of

sorting through all of the evidence and using their common sense

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to make simple logical deductions.

Despite Odom’s cautionary words, posing a hypothetical to

an expert that elicits an answer that the defendant possessed

drugs with the intent to distribute not only mimics the

statutory language, but also implicitly expresses the expert’s

opinion that the defendant is guilty. See Summers, supra, 176

N.J. at 323 (Albin, J., dissenting) (“An expert, who advises the

jury that the defendant possessed drugs with intent to

distribute, is, in essence, telling the jury that the State has

proven all the elements of the crime[,] . . . [and] has

announced his own verdict, whether or not he uses the word

‘guilty.’”).

Additionally, expert testimony coming from a law

enforcement officer claiming to have superior knowledge and

experience likely will have a profound influence on the

deliberations of the jury. See United States v. Fosher, 590

F.2d 381, 383 (1st Cir. 1979); State v. Wheeler, 416 So. 2d 78,

82 (La. 1982).

As this case proves, despite our efforts in Nesbitt, Reeds,

McLean, and Sowell to deter in the misuse of expert testimony,

the problem persists. Candor requires that we admit that the

root of the problem is contradictory language in Odom.

We have come to the conclusion that an expert is no better

qualified than a juror to determine the defendant’s state of

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mind after the expert has given testimony on the peculiar

characteristics of drug distribution that are beyond the juror’s

common understanding. In drug cases, such ultimate-issue

testimony may be viewed as an expert’s quasi-pronouncement of

guilt that intrudes on the exclusive domain of the jury as

factfinder and may result in impermissible bolstering of fact

witnesses. The prejudice and potential confusion caused by such

testimony substantially outweighs any probative value it may

possess.

Federal Rule of Evidence 704(b), unlike its New Jersey

counterpart, specifically prohibits an expert witness in a

criminal case from stating “an opinion about whether the

defendant did or did not have a mental state or condition that

constitutes an element of the crime charged or of a defense.”

That rule makes clear that “[t]hose matters are for the trier of

fact alone.” Id. Accordingly, federal courts in drug cases do

not permit an expert witness to testify about a defendant’s

mental state. See id.; see, e.g., United States v. Watson, 260

F.3d 301, 310 (3d Cir. 2001) (“Of course, narcotics experts may

testify about drug dealing, but they are in no way qualified to

testify about a defendant’s mental condition.”); United States

v. Boissoneault, 926 F.2d 230, 233 (2d Cir. 1991) (“Once [the

expert witness] had testified as to the likely drug transaction

related significance of each piece of physical evidence, the

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jury was competent to draw its own conclusion as to

[defendant’s] involvement in the distribution of cocaine.”).

Indeed, other jurisdictions do not permit expert testimony

on defendant’s state of mind in drug cases. See, e.g., State v.

Campbell, 626 A.2d 287, 291 (Conn. 1993) (holding that trial

court erred in allowing expert testimony that “defendant

possessed the drugs with the intent to sell or with intent to

use them personally”); Fluellen v. State, 703 So. 2d 511, 513

(Fla. Dist. Ct. App. 1997) (finding that trial court erred by

admitting officer’s testimony “that the quantity of cocaine

possessed by the [defendant] indicated that the [defendant]

possessed the drug with the intent to sell, rather than for

personal use. . . . because it exceeded the limitations of

expert testimony”); State v. Shumpert, 554 N.W.2d 250, 254 (Iowa

1996) (finding that expert testimony admissible because expert

“did not testify about whether [defendant] possessed the

requisite intent to deliver,” but rather “expressed his opinion

that the manner of packaging was consistent with the manner of

packaging associated with drug dealing”); People v. Williams,

638 N.Y.S.2d 705, 705 (App. Div.) (holding that expert’s

testimony that defendant possessed crack cocaine with “intent to

sell the drugs . . . invad[ed] the exclusive province of the

jury in determining an ultimate issue of fact”), appeal denied,

667 N.E.2d 352 (N.Y. 1996).

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We now join those jurisdictions that limit the scope of

expert testimony in drug cases. Going forward, in drug cases,

an expert witness may not opine on the defendant’s state of

mind. Whether a defendant possessed a controlled dangerous

substance with the intent to distribute is an ultimate issue of

fact to be decided by the jury.

D.

We also believe that hypothetical questions should be used

only when necessary in drug cases. For instance, no one is

fooled when a hypothetical tracks the evidence and substitutes

the name of a defendant for a symbol, such as S-2. See Summers,

supra, 176 N.J. at 311. The symbolic fig leaf serves no

purpose. If the jury could not deduce that S-2 is the

defendant, the information conveyed through the expert would be

meaningless. When the evidence is straightforward and the facts

are not in dispute, there is no need to resort to a

hypothetical. For example, an expert can explain the purpose of

logos on drug packaging without having to respond to a

hypothetical question. See State v. Simms, __ N.J. __ (2016)

(slip op. at 20). Questions can incorporate the evidence of

record, such as the quantity of drugs, packaging materials,

scales, and money discovered, and the expert can render an

opinion on their significance in a drug-distribution operation.

26

The use -- and abuse -- of hypothetical questions has been

the subject of much criticism by legal scholars and courts.

Some fault hypothetical questions because they are overly

partisan, unnecessarily lengthy, often complex, and frequently

awkward, Mason Ladd, Expert Testimony, 5 Van. L. Rev. 414, 427

(1951), and others because they allow an “attorney to make a

closing argument mid-stream,” The New Wigmore, § 3.4 at 94

(2004) (citing Charles McCormick, Handbook of the Law of

Evidence § 16 at 33-34 (1954)). See also People v. Vang, 262

P.3d 581, 589 (Cal. 2011). Some have even called for the

abolition of the hypothetical question. See The New Wigmore,

supra, § 3.4 at 94 (citing 1 Wigmore on Evidence § 686 at 1094

(2d ed. 1923)); Ladd, supra, 5 Van. L. Rev. at 427. We see no

reason to go that far here.

We cannot presume that hypothetical questions will not be

useful in all circumstances merely because they are abused in

some circumstances. Drug cases, like other cases, will involve

disputed facts. If disputed facts are part of a question, the

expert necessarily will be asked to assume the truth of certain

facts, and therefore the question will be hypothetical in

nature.

Additionally, our evidence rules contemplate that

hypothetical questions may be necessary. N.J.R.E. 705

(“Questions calling for the opinion of an expert witness need

27

not be hypothetical in form unless in the judge’s discretion it

is so required.”). To the extent possible, questions posed to

an expert witness in a drug case should be compact and easy to

understand and should not take the form of a summation. We do

not suggest that the question cannot be of a compound nature

because a variety of factors may collectively form the basis for

an expert opinion, but simplicity in sentence structure will be

helpful to the witness and the jury. We do not offer a dogmatic

approach. In the end, we must rely on the sound discretion of

our trial judges to follow the guidance given here.

We reject defendant’s argument that hypothetical questions

should be vetted pretrial. The formulation of questions will

depend on the development of the evidence at trial. In some

instances, it may be appropriate to conduct a hearing out of the

presence of the jury pursuant to N.J.R.E. 104 to ensure the

fairness and propriety of a hypothetical question. Whether to

employ such a procedure is left to the discretion of the trial

court as gatekeepers of the evidence.

V.

The hypothetical question posed to drug expert Detective

Rothenberger, reproduced in full in the appendix, spanned three

pages of transcript and recited nearly every detail of the case.

The hypothetical starts by asking the expert to assume that an

“individual” -- clearly defendant -- sold drugs to two buyers

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outside of his home. The hypothetical then continues by

recounting every detail concerning the search of defendant’s

house and calls for the expert to give an opinion whether the

drugs recovered were possessed with the intent to distribute:

[Prosecutor]: [R]oughly a week and a half later or so, the search warrant authorized by the Court is acted upon the same residence . . . .

Assume further that when the search warrant is acted upon the individual observed selling is outside the house. . . . When [the police] enter the home located within the home . . . is first of all at a china hutch near that entrance is in a teacup, a small object, ten glassine envelopes . . . established to be heroin.

Further assume that located in a bedroom upstairs there is found in a dresser a rock of crack cocaine, estimated weight slightly over 3 grams. Assume further that in that same room in a closet within a box, and again within another container within that box is a bag of white powder cocaine. Assume that the weight of that white powder is . . . slightly over 15 grams. . . . [I]n that same box with that powder cocaine are 100 little baggies, purple in color. Assume further that next to those items in that same container is a digital scale about the size of your hand.

. . . [I]n that same room is a box of plastic sandwich bags, and assume, please if you would, that the two drug purchasers surveilling on those two previous occasions have also stated that they in fact made those drug purchases from the individual at that house. . . .

Given those hypothetical facts, do you have an opinion as to whether . . . those narcotics were possessed for personal use or

29

possessed with the idea to sell, and please give an opinion as to each narcotic.

[Detective Rothenberger]: Well I do have an opinion . . . it’s possession with intent to distribute.

First, the hypothetical is the classic mid-trial summation,

allowing the prosecutor to package his entire case in a single

question and elicit affirmation of defendant’s guilt from an

expert. Second, the literary device of assuming a hypothetical

“individual” without identifying the defendant by name is a

thinly veiled guise that serves no purpose and fails to

dissipate any potential prejudice. Third, the hypothetical

unfairly bolstered the prosecution’s case by asking the law

enforcement expert to assume that defendant was a drug dealer.

After the detective explained to the jury the significance

of the items found in defendant’s home -- the quantity and

packaging of the drugs, the scale, and the role of cutting

agents in a distribution scheme -- the jury had the tools to do

its job. Surely, if the jury believed that defendant sold drugs

on two prior occasions, it was capable of drawing the inference

on its own, in conjunction with other evidence, that the drugs

found in his home were possessed with the intent to distribute.

The jury did not need the assistance of a law enforcement

officer with drug expertise to figure out that a drug dealer

might hide drugs in his home. The detective’s opinion on the

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ultimate issue of fact -- whether defendant had the requisite

intent to distribute -- did not require expert assistance. The

expert testimony intruded into the exclusive domain of the jury.

The probative value of the detective’s testimony on this point

was substantially outweighed by its prejudicial impact. See

N.J.R.E. 403.

Although clearly prejudicial, Detective Rothenberger’s

testimony did not draw an objection from defense counsel.

Such a procedural default ordinarily would weigh heavily against

defendant under the plain-error standard. R. 2:10-2 (“Any error

or omission shall be disregarded by the appellate court unless

it is of such a nature as to have been clearly capable of

producing an unjust result . . . .”). The less-than-clear

standard governing our jurisprudence on ultimate-issue testimony

in drug cases, however, makes counsel’s default somewhat

understandable.

The inclusion of the “assumed” drug sales in the

hypothetical had a potential domino effect. It unfairly

bolstered the State’s case on the charge of possession with

intent to distribute. In turn, the buttressed possession-with

intent-to-distribute charge made more persuasive the State’s

version that defendant sold drugs outside his home, a point

defendant vigorously contested. Accordingly, the taint of the

hypothetical and the answer it elicited had the capacity to

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infect all of the charges and were “clearly capable of producing

an unjust result.” See R. 2:10-2.

VI.

A.

We next turn to whether the repeated references to a search

warrant for defendant’s house unfairly implied that the judge

issuing the warrant credited the same evidence later presented

at trial.

To be sure, the prosecutor has the right to convey to the

jury that the police were authorized to search a home. Every

juror surely knows that the police typically cannot search a

home without a warrant. The jury should not be left guessing

whether the police acted arbitrarily by entering a home without

a search warrant. See State v. Marshall, 148 N.J. 89, 240,

cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88

(1997) (“[T]he fact that a warrant was issued might necessarily

be put before a jury in order to establish that the police acted

properly.”).

On the other hand, repeated statements that a judge issued

a search warrant for a defendant’s home -- when the lawfulness

of the search is not at issue -- may lead the jury to draw the

forbidden inference that the issuance of a warrant by a judge

supports the rendering of a guilty verdict.

In Marshall, supra, the Court stated that it was not aware

32

of authority supporting “the proposition that the jury should be

shielded from knowledge that search warrants have been issued in

a criminal matter because the prior judicial determination of

probable cause may influence the jury to assume guilt.” Ibid.

Significantly, however, Marshall did not suggest that it would

be permissible for the prosecution to attempt to impute guilt to

the defendant by repeatedly mentioning a search warrant.

Surely, the prosecutor should not in any way imply that because

a Superior Court judge issued a warrant based on evidence

supplied by law enforcement authorities, the same evidence

presented at trial has received a judicial endorsement.

This is the point made clear in State v. Alvarez, 318 N.J.

Super. 137 (App. Div. 1999). In that case, the Appellate

Division overturned the defendant’s firearms convictions because

of the prejudicial impact of “three references to an arrest

warrant for defendant [and] six references to a search warrant

(described as being issued by a judge),” all coming “directly

out of the mouth of the prosecutor.” Id. at 147. Because the

credibility of the officers was not at issue in that case, the

panel saw “no reason why either of the[] warrants needed to be

injected into th[e] case.” Id. at 148. Writing for the

appellate panel, then-Judge (later Justice) Long noted that the

prejudicial effect of the warrant references was magnified

because “the prosecutor managed to insert into his questions the

33

fact that a judge issued the search warrant, thus suggesting

that a judicial officer with knowledge of the law and the facts

believed that evidence of criminality would be found in

defendant’s room.” Ibid. The panel analogized Alvarez to State

v. Milton, 255 N.J. Super. 514, 519 (App. Div. 1992), a case

where the Appellate Division “reversed a conviction due to an

improper reference to a search warrant for defendant’s person.”

Alvarez, supra, 318 N.J. at 147. The Alvarez panel noted that

in Milton, “[t]he natural inference from the mention of the

warrant itself, confirmed by the cautionary instruction of the

trial judge, was that sufficient independent proof had been

presented to a neutral judge to believe that defendant would be

found in possession of drugs.” Ibid. (quoting Milton, supra,

255 N.J. Super. at 520). Accordingly, the Alvarez panel found

that the numerous references to the warrants constituted plain

error, warranting reversal. Id. at 148. We agree substantially

with the reasoning of Judge Long in Alvarez.1 It would be wrong

for the jury to infer guilt from a judge’s issuance of a

warrant.

1 In State v. McDonough, 337 N.J. Super. 27, 34-35 (App. Div.), certif. denied, 169 N.J. 605 (2001), an appellate panel questioned whether Milton and Alvarez could be reconciled with Marshall. Nevertheless, the panel recognized that a defendant is prejudiced when references to a warrant have a capacity to mislead the jury into believing the State has evidence of defendant’s guilt beyond what was presented at trial. Id. at 35.

34

A search warrant can be referenced to show that the police

had lawful authority in carrying out a search to dispel any

preconceived notion that the police acted arbitrarily. A

prosecutor, however, may not repeatedly mention that a search

warrant was issued by a judge if doing so creates the likelihood

that a jury may draw an impermissible inference of guilt.

B.

Here, the prosecutor mentioned the existence of a search

warrant no less than fifteen times in the opening statement,

summation, and during questioning of witnesses. Some of those

references specifically informed the jury that a Superior Court

judge issued the warrant. A few examples will suffice:

A search warrant was then obtained, authorized by a Superior Court Judge and a search of the place that he was selling drugs from was conducted. [Prosecutor’s Opening Statement.]

As I mentioned to you, that information then was entered into an affidavit for a search warrant. A search warrant brought to a judge. Before you can go into somebody’s home under those circumstances, you need the authority of a Superior Court judge, and he received it. [Prosecutor’s Opening Statement.]

[Prosecutor]: [W]hy were you surveilling [the home] if you already had a search warrant authorizing you to go in? [Questioning of Officer Carroll.]

[Prosecutor]: [Y]ou applied for a search warrant of 369 Dewolf Place? [Witness]: A search warrant application was made. Yes.

35

[Prosecutor]: All right. And that application came before a Superior Court Judge in this building. Is that right? [Witness]: That is correct, [s]ir. [Prosecutor]: Was it granted? [Witness]: Yes it was, [s]ir. [Questioning of Detective Smith.]

But now when they execute that Court authorized search warrant, they’re finding the same kind of drugs that have been distributed on two prior occasions. [Prosecutor’s Summation.]

The repeated references to the search warrant -- one issued

by a Superior Court judge -- went well beyond what was necessary

to inform the jury that the officers were acting with lawful

authority. The constant drumbeat that a judicial officer issued

a warrant to search defendant’s home had little probative value,

but did have the capacity to lead the jury to draw an

impermissible inference that the court issuing the warrant found

the State’s evidence credible. See N.J.R.E. 403 (“[R]elevant

evidence may be excluded if its probative value is substantially

outweighed by the risk of . . . undue prejudice.”). Defendant,

however, did not raise an objection at trial to the references

that he now claims denied him a fair trial. Because of our

earlier finding that the admission of the erroneous expert

testimony requires reversal and a new trial, we do not have to

reach the issue of whether the search-warrant references

constituted plain error.

For the reasons expressed, we reverse the judgment of the

Appellate Division affirming defendant’s convictions. We remand

to the trial court for further proceedings consistent with this

opinion.