Saturday, December 14, 2013

Defending the Intent to Distribute CDS Charge in New Jersey Superior Court

There is a term in Latin, Ipse Dixit, which means, “He, himself, said it.”  In essence describes a statement made by person in so-called authority, which is arbitrary and dogmatic and has no basis in fact or reality other than because the person who said it says so.  In other words the statement is a bare assertion fallacy.

Intent to distribute experts who testify for the prosecution in intent to distribute cases is in essence nothing more than a ipse dixit witness. 

These witnesses give their personal opinion testimony in the form of a hypothetical answer based on a hypothetical question, which is based on the facts of the case.

To begin with they are giving opinions based on nothing more than their personal opinions based on the discovery in the case posed in a hypothetical question.  Of course common sense tells us that no person can say what the intent of someone else is, or predict what someone else will do, i.e., whether they possessed the CDS with intent to distribute or possessed the CDS for personal use.  However, our Supreme Court in New Jersey says that this bare assertion fallacy is permissible in New Jersey.  The courts attempt to get around this ipse dixit logical fallacy by arguing that the average juror is unable to use his or her common sense and hence a police officer must testify that for example two pounds of marijuana was possessed not for personal use but with intent to distribute. 

Why this testimony has no basis in logic or reason is simple.  First, and foremost, it is the State or Government in a federal CDS criminal case, that most prove beyond a reasonable doubt that the person in possession of the CDS possessed it with intent to distribute.  If the State cannot prove it beyond a reasonable doubt with real, valid and convincing evidence, there must be a not guilty verdict and the jury must come back with a verdict of guilt for possession only.  Second, most juries are sophisticated enough to draw the proper inferences based on all the real evidence in the case whether the person possessing that amount of marijuana possessed same for personal use or with intent to distribute. Third, what you [police expert witness] is really saying in this hypothetical example is that it could have been possessed with intent to distribute, not that it was possessed with intent to distribute?

It is unfair to allow the State or Government to supplement their lack of real evidence in these types of possession cases with phony ipse dixit testimony and New Jersey criminal defense attorneys must continue to fight to keep this evidence out and through cross-examination and again in summations argue that this testimony is nothing more than bare assertion fallacy testimony.

P.O. Box 261
277 North Broad Street
Elizabeth (Union County), New Jersey 07207
(908) 354-7006
Dated: December 15, 2013

Monmouth, Essex, Union, Middlesex, Bergen, Hudson, Somerset County Criminal Defense Attorney, NJ Criminal Lawyers, NJ Criminal Defense Lawyers, Attorneys

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