Expert Witnesses in Illegal Drug Distribution Cases

Philadelphia Criminal Defense Lawyer Zak Goldstein

Possession with the Intent to Deliver of a controlled substance is a serious charge in Pennsylvania and New Jersey. It is always graded as a felony (even when the controlled substance in question is marijuana), and although Pennsylvania no longer has mandatory minimum sentences for drug offenses, the sentencing guidelines often call for jail time upon conviction depending on the defendant’s criminal record and the weight of the drugs involved. Fortunately, there are often defenses to Possession with the Intent to Deliver charges. 

Types of Drug Distribution Cases in Philadelphia

There are typically two common types of Possession with the Intent to Deliver cases in Philadelphia court. In perhaps the most common type, detectives with one of the city’s specialized narcotics units will set up a surveillance operation or use confidential informants in order to try to catch people in the act of buying and selling drugs. In the second type, the police will make a pedestrian stop or traffic stop and find that the person stopped has drugs or drug paraphernalia in their pockets or in the car. If the person stopped appears to have a lot of drugs, a substantial amount of money without a good explanation, or paraphernalia which suggests that the drugs are going to be packaged for sale, the prosecution will typically charge Possession with the Intent to Deliver (“PWID”) and use a police expert witness to try to convince the court that the defendant was planning on selling the drugs.

Expert Witnesses in Drug Cases

In Philadelphia court, the prosecution’s expert is virtually never an independent, unbiased witness. Instead, the prosecution’s expert is almost always a salaried, on-duty police officer who testifies only for the government in drug cases as their full-time job. Despite the obvious bias in favor of the Commonwealth, most judges will accept police officer expert testimony in these cases as to whether the drugs would have been intended for sale. The officer will often testify to a handful of generic reasons why the defendant must have been planning on selling the drugs. Some of the reasons could include the presence of money as they will testify that dealers often have large quantities of cash, that the drugs were divided into multiple packets that could be easily sold, or that the defendant also possessed scales or cutting instruments which could be used to divide up a larger quantity of drugs into smaller quantities for distribution.  

Challenging Police Expert Testimony in Drug Possession Cases

It is critically important to fight back against this biased testimony when defending against drug delivery charges. This police “expert” testimony can be refuted in a number of ways. First, in most drug cases where the police did not observe the actual sale of narcotics, our criminal defense attorneys can have the discovery and case file reviewed by an independent expert on drug packaging, distribution, and sale. The expert will review the file for whether the drugs and paraphernalia could also be consistent with personal use. This could include providing drug treatment records or employment documentation to the expert so that the expert can see that the defendant has the legitimate financial means to purchase a larger quantity of drugs and a history of drug use. In many cases, if there is an explanation for why the defendant had a significant quantity of money, it could go a long way towards dispelling allegations that the money came from drug activity. If the expert can opine that the circumstances of the drug possession were also consistent with personal use, then we can retain the expert to testify at trial before a judge and jury and rebut the testimony of the Government’s police officers. This could have the effect of reducing the felony charge, which often carries jail time, to a misdemeanor charge which could carry only probation or no further penalty depending on the controlled substance. Second, our defense lawyers can also challenge the prosecution’s expert witnesses through cross examination. We have successfully defended hundreds of these drug possession cases involving prosecution expert witnesses, and our attorneys are highly experienced in cross examining the Commonwealth’s police experts.

When Is Expert Testimony Permitted in a Pennsylvania Criminal Case?

Pennsylvania Rule of Evidence 702 permits both the prosecution and the defense to introduce expert testimony under certain circumstances. The rule provides that:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

 (a)  the expert’s scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;

 (b)  the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and

 (c)  the expert’s methodology is generally accepted in the relevant field.

The rule is very broad and permits a wide variety of expert testimony in criminal cases, and it is well-settled that both the prosecution and defense may present expert testimony in drug cases. There are, however, some limits to the types of expert opinion that a court will allow. Typically, an expert may not testify that the defendant in question specifically intended or did not intend to distribute the drugs that he or she possessed. However, the expert may opine that the circumstances are consistent with personal use or consistent with the intent to deliver because this testimony is helpful for a judge or jury to understand all of the circumstances and make the ultimate decision as to whether the prosecution has met its burden to prove Possession with the Intent to Deliver beyond a reasonable doubt. Likewise, in cases involving observed drug sales, the police may not provide their opinion that what they observed was actually the sale of drugs. Instead, they may only describe what they saw and allow the judge or jury to decide whether those observations were drug sales.

Philadelphia Criminal Lawyers for Drug Possession Charges in PA and NJ

Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

If you are charged with Possession with the Intent to Deliver or drug trafficking based on the quantity of the drugs involved or other paraphernalia that the police claim to have recovered, it is important to retain an experienced criminal defense attorney who will explore all possible defenses. Defenses to drug charges often include motions to suppress, constructive possession, and challenging the Commonwealth’s assertion that the defendant intended to sell the drugs. If you are facing criminal charges, call 267-225-2545 to speak with an experienced and understanding defense attorney today.