Stay Tuned: N.J. Supreme Court Ruling on DRE Testimony Could Have Far-Reaching Impact on N.J. Cannabis Laws

Today, the New Jersey Supreme Court rendered an opinion in State v. Michael Olenowski fundamentally changing how New Jersey courts will now evaluate the admissibility of expert evidence under New Jersey Rules of Evidence in criminal and quasi-criminal cases. 

Prior to the Court’s decision, when evaluating the admissibility of expert evidence in criminal cases, New Jersey courts applied what is referred to as the Frye standard.  That standard required that courts assess only whether the subject of expert testimony was “generally accepted” by the scientific community.  For years, that standard has been criticized as “unduly restrictive and unduly permissive,” and an “approach that assesses the reliability of expert testimony indirectly as opposed to directly.”  As noted by the Court, it “excludes scientifically reliable evidence which is not yet generally accepted, and admits scientifically unreliable evidence which although generally accepted, cannot meet rigorous scientific scrutiny.”  To address those criticisms, the Court adopted a new standard for courts to apply in evaluating the admissibility of expert testimony in criminal and quasi-criminal case.  New Jersey Courts are now required to directly examine the reliability of expert evidence and consider a broader range of relevant information by considering certain factors including, but not limited to: (1) whether the scientific theory or technique can be, or has been, tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error as well as the existence of standards governing the operation of the particular scientific technique; and (4) general acceptance in the relevant scientific community. 

Today’s ruling represents a seismic shift in how New Jersey courts will evaluate the admissibility of expert testimony in criminal cases, one that was necessary to address the ever-changing landscape of science and technology and their use in court to prosecute defendants of this state. The decision aligns with the approach to expert evidence taken by a majority of states in criminal cases and with the standards that have been applied by New Jersey courts in civil cases for decades.

This ruling arose in connection with a challenge to the admissibility of expert testimony by drug recognition experts (DRE).  The New Jersey Supreme Court had previously appointed a Special Master to review whether DREs satisfy the Frye standard, as both lower courts had found in upholding the defendant’s conviction.  In a comprehensive report, the Special Master concluded that DREs were generally accepted in the relevant community and therefore satisfied the standard.  The Supreme Court noted that the Special Master had found that the DRE protocols were not a typical fit for the Frye analysis and remanded the case to the Special Master to review under the New Jersey Daubert standards and for a new evaluation of the error rates associated DRE evidence.

In addition to the impact on criminal cases in the future, the Court’s ruling once again puts into question whether DRE evidence can be accepted in court.  Notably, New Jersey’s cannabis laws require the use of the same type of DRE evidence to determine whether someone is under the influence of cannabis in the workplace.  So the Special Master’s next report (and ultimately the Supreme Court’s final ruling in this matter) will have a far reaching impact in this state.

A copy of the Court’s decision can be accessed here.

Pashman Stein Walder Hayden, PC served in this case as counsel to amicus curiae Association of Criminal Defense Lawyers of New Jersey.