April 2026 | The New Jersey Police Chief Magazine 28
defendant is not entitled to a jury trial where the period of incarceration does not exceed six months.
8 Substitute toxicologist permitted to testify based on another ' s toxicologist work State v. K. W. 483 N. J. Super. 58( App. Div. 2025)
Following a jury trial, defendant K. W. was convicted of second-degree sexual assault, N. J. S. A. 2C: 14-2( c)( 1), and fourth-degree criminal sexual contact, N. J. S. A. 2C: 14-3( b). The State alleged the victim was under the influence of ketamine and other substances at the time of the offenses based on toxicological testing of her blood and urine.
The State ' s toxicologist who performed the testing and prepared its toxicology report was unavailable to testify at trial. In her stead, the State called the toxicologist ' s supervisor as permitted by our Supreme Court ' s decision in State v. Michaels, 219 N. J. 1( 2014). In Michaels, the Court held a substitute expert can testify at trial without violating a defendant ' s right to confrontation if the expert reaches an independent opinion based on machine-generated testing data from testing performed by a non-testifying technician.
In this case, the supervisor had peer reviewed the original toxicologist ' s report, independently reviewed the toxicologist ' s report, notes, and data prior to trial, and formed an independent opinion that the results of the report were correct. The supervisor was qualified as an expert without objection and testified based on the forensic testing performed by the original toxicologist.
On appeal, defendant argued the supervisor ' s testimony violated his right to confrontation under the United States and New Jersey Constitutions based on the United States Supreme Court ' s decision in Smith v. Arizona, 602 U. S. 779, 144 S. Ct. 1785( 2024), which was decided after defendant ' s trial. Defendant contended our Supreme Court ' s decision in Michaels was effectively overruled by Smith. Defendant argued that Smith held a defendant ' s confrontation right is violated unless the individual who performed the forensic testing testifies at trial.
The court affirmed. It determined the supervisor ' s trial testimony violated the rule established in Michaels because she repeatedly read directly from the original toxicologist ' s report, rather than testifying to her own independent opinions. Because defendant did not object at trial and affirmatively used the expert ' s testimony defensively, the court concluded his Confrontation Clause argument was waived.
The court also determined Michaels remains sound law after Smith. Specifically, the court concluded machinegenerated data is not the equivalent of a " testimonial statement " for Confrontation Clause purposes. Therefore, if a substitute expert testifies at trial after reaching an independent opinion based on machine-generated data, as permitted by Michaels, there is no Confrontation Clause violation. Dec 17, 2025 DOCKET NO. A-2049-23 Full opinion Criminal Law- Recent Cases Vercammen Law at https:// www. blogger. com / blog / posts / 38696672
9 Court has discretion to reject expert testifying remote State v Lansing 479 N. J. Super. 565( App. Div. 2024).
On leave granted, the court reviewed a Law Division order denying defendant’ s motion to permit his expert to testify remotely at an evidentiary hearing in this criminal matter without the State’ s consent and at his jury trial. The motion was based on the expert’ s medical condition and desire to remain at home to care for his ill spouse.
At issue were the seemingly conflicting provisions of:( 1) Rule 1:2-1( b), which authorizes the trial court to allow testimony in open court by contemporaneous transmission from a different location upon a showing of good cause and with appropriate safeguards; and( 2) the October 27, 2022 Order of the Supreme Court which provides that evidentiary hearings in criminal matters shall proceed in person, unless all parties consent to proceed virtually, and that criminal jury trials shall proceed in person.
The court held that Rule 1:2-1( b) and the October 27, 2022 Order can be read harmoniously. While the October 27, 2022 Order establishes a general framework for how the many categories of proceedings heard in our courts will take place in light of the lessening need for the restrictions imposed in response to the COVID-19 emergency, the Order does not limit the authority granted to the trial courts in Rule 1:2-1( b) to permit the remote testimony of individual witnesses at proceedings that will otherwise take place in person.
The trial court, therefore, had the authority to hear motion by defendant to permit his expert to testify remotely in this criminal matter at an evidentiary hearing without the State’ s consent and at his jury trial. The factors established in Pathri v. Kakarlamath, 462 N. J. Super. 208, 216( App. Div. 2020), issued prior to both the adoption of Rule 1:2- 1( b) and the issuance of the October 27, 2022 Order, are