May 5, 2008
Mostly Harmless: New Jersey Court Finds Incorrect Admission Of Expert Testimony Was Harmless Error
The recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Schellinger, 2008 WL 1848300 (N.J. Super.A.D. 2008), contains an interesting application of the harmless error doctrine to the rules of expert evidence. In Schellinger, the defendant Arthur Schellinger and his co-defendant Tim McGeachy were charged with possession of cocaine based upon the following facts: On May 3, 2005, Police Officer James Armstrong was surveying an area of Atlantic City known for narcotics sales when he observed McGeachy suspiciously walking back and forth between two streets. Shortly thereafter, Armstrong saw Schellinger approach McGeachy, whereupon they talked and walked to the corner of the street and spoke again. Schellinger then handed McGeachy an undetermined amount of money, and McGeachy entered a nearby house before later returning. The men then went to the parking lot of a store and proceeded toward an alleyway. Armstrong, who had followed the men, then witnessed McGeachy hand Schellinger an item that Schellinger placed in the front right pocket of his pants.
Believing that the two men had engaged in a narcotics transaction, Armstrong exited his vehicle and instructed the men to stop and place their hands where he could see them. Schellinger then reached into his pocket, removed a small clear bag and threw it to the ground, whereupon Armstrong arrested both men. Upon searching Schellinger, Armstrong found two glass crack pipes and a copper "brillo pad." A search of McGeachy did not reveal anything of evidentiary value; however, Armstrong did not find this unusual because he believed that McGeachy was acting as a middleman to Schellinger's drug purchase. At trial, Armstrong was not qualified as an expert witness, but he testified to the events that transpired and explained that he had made over three-hundred arrests for drug-related crimes in that specific area, which is well known for drug sales because a drug rehabilitation clinic is located nearby. Armstrong further stated that he completed a one-month internship with the Atlantic County Prosecutor's Narcotics Strike Force, an eighty-hour course with the Drug Enforcement Agency. and an eighty-hour narcotics course run by the New Jersey Attorney General.
On appeal, Schellinger claimed, inter alia, that the court erred by permitting Armstrong to render these opinions because they went beyond the opinion of a lay witness, and yet Anderson was not qualified as an expert witness. The court disagreed, relying upon its previous opinion in State v. Kittrell, 279 N.J.Super. 225, 235 (App. Div. 1995). finding that while the trial court erred in allowing Anderson to testify, the error was harmless because "[a]lthough Armstrong was not tendered or qualified as an expert, enough evidence was presented at trial to qualify him as an expert."
It thus seems to me that New Jersey courts have created a per se rule that whenever a trial court permits a witness to render "expert" testimony despite not being qualified as an expert witness, any error will be deemed harmless as long as the expert could have been qualified as an expert witness. And something about that feels wrong to me, although I can't quite put it into words at this point. Do readers have any thoughts?
May 5, 2008 | Permalink
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Here's the problem. You have the same witness testifying as both a percipient and an expert witness. He's wearing two hats in front of the jury, and there's "spill over" between his two roles. Unfortunatly there's no recognition of this, no limiting instruction (if even sufficient), so the situation creates jury confusion. In essence, he's vouching for or self-corroborating his own testimony. Mack.
Posted by: Self-corroboration | May 6, 2008 8:36:31 PM