The Court continued in relevant part: Here, the judge correctly concluded that Egan offered expert testimony that defendant intended to distribute CDS. Our Supreme Court has held that when a police officer testifies based on “‘his training and experience’ . . . ‘about his belief as to what had occurred. See also McLean, 205 N.J. at 463.
Nonetheless, the judge did not dismiss the indictment because he found the prosecutor had presented sufficient evidence for the grand jury to have independently found probable cause. Likewise, the judge concluded Egan’s testimony did not infringe on the grand jury’s decision-making function because the prosecutor had presented facts from which the grand jurors could have independently determined defendant’s state of mind. However, the question of whether the prosecutor presented a prima facie case is separate and distinct from whether the grand jury presentation was fundamentally fair and whether the prosecutor infringed on the grand jury’s decision-making function in the presentation.
Given the holding and reasoning in Cain, defendant’s argument that Egan’s expert testimony was improper is persuasive. See Francis, 191 N.J. at 586 (noting that “grand jury proceedings are largely controlled by prosecutors”). See State v. Torres, 183 N.J. 554, 580 (2005) (“When the expert witness is an investigating officer, the expert opinion may present significant danger of undue prejudice because the qualification of the officer as an expert may lend credibility to the officer’s fact testimony regarding the investigation.”).
While it is usually a strategic error to make a motion to dismiss the indictment, there are exceptions to the rule. For example, in a case that depends on an accuser’s testimony, a motion to dismiss could highlight all of their demonstrable fabrications to the police. That could lead the accuser to request a dismissal of the charges or other favorable result.
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