Expert should not be permitted to testify on ultimate issue. State v.
Simms 224 NJ
393 (2016)
Expert testimony that
“embraces an ultimate issue to be decided by the trier of fact,” N.J.R.E.
704, is not admissible unless the subject matter is beyond the ken of the
average juror. State v. Nesbitt, 185 N.J. 504, 515-16, 519 (2006).
Expert testimony is not necessary to tell the jury the “obvious” or to resolve
issues that the jury can figure out on its own. In addition, a prosecutor may
not “summarize straightforward but disputed evidence in the form of a
hypothetical and then elicit an expert opinion about what happened.” State
v. Sowell, 213 N.J. 89, 102 (2013).
The erroneously assumed fact
in the hypothetical question—that the object in defendant’s hand was a bundle
of heroin packets—unfairly buttressed the State’s case. It was for the jury to
decide the identity of the object based on an examination of the totality of
the evidence. The ultimate-issue testimony on conspiracy, moreover,
impermissibly intruded into the jury’s singular role as trier of fact.
