SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized.)

State v. Scott M. Cain (A-8-14) (074124)

[NOTE: This is a companion case to State v. Yasin Simms (A-14-14)(074209), also filed today.]

Argued October 26, 2015 – Decided March 15, 2016

ALBIN, J., writing for a unanimous Court. 

In this appeal arising from a prosecution for offenses including possession with intent to distribute heroin 

and cocaine, the Court revisits the decision in State v. Odom, 116 N.J. 65 (1989), which held that an expert witness 

in a drug-distribution case could testify to the ultimate issue of fact, and therefore opine whether a defendant 

possessed drugs with the intent to distribute. The Court now determines that such ultimate-issue expert testimony is 

not appropriate in a drug-distribution case. 

On July 16, 2008, detectives from the Hackensack Police Department were conducting a surveillance of the 

house where defendant Scott M. Cain lived with his mother. The officers observed a hand-to-hand exchange 

between defendant and an individual on the porch. The officers, who were in an unmarked vehicle, followed the 

individual. When the individual noticed that he was being followed, he dropped an object on the ground; the 

officers retrieved the dropped item, which was crack cocaine. On July 28, 2008, an officer observed a hand-to-hand 

transaction between defendant and another individual in front of defendant’s house. Through further investigation, 

the officers recovered two glassine envelopes containing heroin. Both individuals testified that they purchased the 

drugs from defendant. The officers executed a search warrant at defendant’s house and seized quantities of crack 

cocaine, powdered cocaine, and heroin, as well as a digital scale and Ziploc baggies. 

At trial, a detective from 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 to the detective, which 

mirrored nearly all of the evidence against defendant that the State presented at trial, and then asked whether the 

witness had an opinion as to whether defendant possessed the narcotics for personal use or with the intent to sell. 

The detective responded that, in his opinion, the drugs were possessed with the intent to distribute. He also testified 

about the value and packaging of the drugs, their location, and other indicia of drug distribution. The jury found 

defendant guilty of the drug offenses, including possession with intent to distribute cocaine and heroin. The trial 

court granted the State’s application for an extended-term sentence, and sentenced defendant to a sixteen-year term 

of imprisonment with an eight-year period of parole ineligibility for second-degree possession of cocaine with intent 

to distribute. 

Defendant appealed. In an unpublished opinion, the Appellate Division affirmed defendant’s convictions, 

but reversed the sentence and 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 to the expert witness. The panel held that the 

expert did not improperly 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. This Court granted defendant’s petition for certification. 219 N.J. 631 (2014). 

HELD: The testimony of the law-enforcement drug expert expressing an opinion on defendant’s state of mind, 

more particularly, whether he intended to distribute drugs, exceeded appropriate bounds and encroached on the 

jury’s exclusive domain as finder of fact. In future 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. Defendant’s conviction is reversed and the matter is remanded for a 

new trial.

1. Under N.J.R.E. 702, expert testimony is permissible if scientific, technical or other specialized knowledge will 
2

assist the trier of fact to understand the evidence or to determine a contested fact. Expert testimony, otherwise 

admissible, is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. An expert’s 

opinion is not admissible unless the testimony concerns a subject matter beyond the ken of an average juror. Expert 

testimony is permissible only if it will assist the trier of fact to understand the evidence or to determine a fact in 

issue, and may be excluded if its probative value is substantially outweighed by the risk of undue prejudice. (pp. 12-

13)

2. The seminal case on the scope of expert testimony in drug-distribution cases is State v. Odom, which upheld 

defendant’s conviction for possession of cocaine with the intent to distribute based, in part, on a police detective’s 

expert testimony that the defendant possessed crack cocaine with the intent to distribute. However, Odom stated 

seemingly irreconcilable principles by permitting expert testimony regarding defendant’s culpable state of mind --

whether a defendant possessed drugs with the intent to distribute -- while also stating that testimony from the same 

expert which expresses a direct opinion on defendant’s guilt on the crime charged is improper. In subsequent 

decisions applying Odom, the Court has attempted to curtail the misuse of expert testimony that has intruded into the 

jury’s exclusive role as ultimate fact-finder, and reiterate that an expert’s testimony may not recite the legal 

conclusion sought in a verdict. (pp. 1-2, 13-20)

3. Expert testimony can assist jurors to understand matters such as the indicia of a drug distribution operation, how 

drug traffickers package and process drugs for distribution, the function of drug paraphernalia, and the roles played 

by individuals in street-level drug transactions. 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, and should not be used to bolster a fact 

witness’s testimony about straightforward but disputed facts. Once the jury is informed about the peculiar 

characteristics of a drug-distribution scheme, the jurors are well-equipped to make the final determination of 

whether a defendant had the requisite mental state to commit a drug offense; that decision does not require special 

expertise. (pp. 2, 20-21)

4. Despite Odom’s cautionary words, a hypothetical question that elicits a response from the expert opining that the 

defendant possessed drugs with the intent to distribute not only improperly mimics the statutory language, but also 

implicitly expresses the expert’s opinion that the defendant is guilty. 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, and 

may impermissibly bolster the testimony of fact witnesses. The Court concludes that an expert is no better qualified 

than a juror to determine the defendant’s state of mind. (pp. 22-23)

5. The Court also concludes that hypothetical questions should be used in drug cases only when necessary. When 

the evidence is straightforward and the facts are undisputed, there is no need to resort to a hypothetical. However, if 

disputed facts are part of a question, the expert necessarily will be asked to assume the truth of certain facts through 

a hypothetical question. The hypothetical question asked of the law-enforcement drug expert was an improper 

attempt to elicit an affirmation of defendant’s guilt by an expert, unfairly bolstered the prosecution’s case, and 

intruded into the exclusive domain of the jury by providing an opinion on the ultimate issue of fact. The probative 

value of the detective’s testimony on this point was substantially outweighed by its prejudicial impact. The taint of 

the hypothetical and the response had the capacity to infect all of the charges, and was clearly capable of producing 

an unjust result. (pp. 26-31)

6. The repeated references by the prosecutor to the search warrant for defendant’s home issued by the court went 

well beyond what was necessary to inform the jury that the officers were acting with lawful authority. These 

repeated references had little probative value, but had the capacity to lead the jury to draw an impermissible 

inference that the court issuing the warrant found the State’s evidence credible. However, in light of the ruling 

reversing the conviction based on the opinion testimony by the drug expert, the Court does not determine whether 

these comments constitute plain error. (pp. 31-35) 

 The judgment of the Appellate Division is REVERSED, defendant’s drug convictions are VACATED, 

and the matter is REMANDED to the trial court for further proceedings consistent with this opinion. 

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, and SOLOMON, and 

JUDGE CUFF (temporarily assigned) join in JUSTICE ALBIN’S opinion. JUSTICE FERNANDEZ-VINA 

did not participate. 
1

SUPREME COURT OF NEW JERSEY

A-8 September Term 2014

074124

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SCOTT M. CAIN,

Defendant-Appellant.

Argued October 26, 2015 – Decided March 15, 2016

On certification to the Superior Court, 

Appellate Division.

Brian F. Plunkett, Assistant Deputy Public 

Defender, argued the cause for appellant 

(Joseph E. Krakora, Public Defender, 

attorney).

Elizabeth R. Rebein, Assistant Prosecutor, 

argued the cause for respondent (John L. 

Molinelli, Bergen County Prosecutor, 

attorney).

Steven A. Yomtov, Deputy Attorney General, 

argued the cause for amicus curiae Attorney 

General of New Jersey (John J. Hoffman, 

Acting Attorney General, attorney).

JUSTICE ALBIN delivered the opinion of the Court.

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, 
2

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 
3

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.
4

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 
5

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.
6

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 
7

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 thirddegree 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-todistribute conviction. Last, the court ordered that defendant 

pay all applicable penalties and fines.

Defendant appealed.

II.
8

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 
9

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 
10

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 
11

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 
12

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 
13

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 drugdistribution 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 
14

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.
15

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 
16

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 
17

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.
18

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 
19

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.
20

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
21

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 
22

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 
23

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 transactionrelated significance of each piece of physical evidence, the 
24

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).
25

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 
28

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
30

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-withintent-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 
31

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.

VII.
36

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.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, and 

SOLOMON, and JUDGE CUFF (temporarily assigned) join in JUSTICE 

ALBIN’S opinion. JUSTICE FERNANDEZ-VINA did not participate. 
37

Appendix

The full hypothetical question asked during the trial is 

reproduced below:

[Prosecutor]: Now, let’s assume that there’s 

an individual residing in a home. And on the 

middle of the month someone approaches that 

home and engages in what appears to be a handto-hand drug transaction. That person -- that

drug transaction occurs just outside the home 

as opposed to inside. And the person who 

approached the house, leaves the house and it 

is stopped within seconds in a short distance 

from that house, having met somebody there.

After that hand-to-hand drug transaction 

and that stop, that person is found to be in 

possession of crack cocaine, in a quantity of 

-- assuming for this hypothetical .20 grams.

Further assume, if you would, stopped by 

police. Further assume, if you would that 

approximately two weeks after that first drug 

buy. A second individual, a different 

individual approaches that same house, and the 

same individual in that house. A similar 

transaction occurs, hand-to-hand drug 

transaction. Are you familiar with that --

[Detective Rothenberger]: Yes, sir.

[Prosecutor]: Hand --

[Detective Rothenberger]: Yes, sir.

[Prosecutor]: Okay. A similar transaction 

occurs. That second buyer stopped a short 

distance away from the home again by law 

enforcement, who on both occasion [sic] are 

surveilling the residence. That second 

individual is found to be in possession of 

heroin. Of the amount of heroin is .02 grams.

Assume further in these set of 

hypothetical facts that roughly a week and a 
38

half later or so, the search warrant 

authorized by the Court is acted upon the same 

residence where law enforcement has been 

surveilling and those two purchases were made 

by those two different people.

Assume further that when the search 

warrant is acted upon the individual observed 

selling is outside the house. That there are 

three additional occupants within the house. 

They are an elderly woman, they are a woman in 

her later twenties and her young son about 

eight years old. When they enter the home 

located within the home, assume further, is 

first of all at a china hutch near that 

entrance is in a teacup, a small object, ten 

glassine envelopes suspected to be heroin, and 

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 over half an ounce, 

15, slightly over 15 grams. Please assume 

further that in 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.

Lastly assume, well not lastly, but also 

assume that in 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 or not the 

narcotics found in the home of the -- the 

hypothetical home; do you have an opinion as 
39

to whether those narcotics were possessed for 

personal use or 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, and I’ll explain why, sir.
SUPREME COURT OF NEW JERSEY

NO. A-8 SEPTEMBER TERM 2014

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SCOTT M. CAIN,

Defendant-Appellant.

DECIDED March 15, 2016

Chief Justice Rabner PRESIDING

OPINION BY Justice Albin

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY 

CHECKLIST

REVERSE/ 

VACATE/

REMAND

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA ----------------

JUSTICE SOLOMON X

JUDGE CUFF (t/a) X

TOTALS 6