dissenting.
This appeal raises the question whether an expert prosecution witness can testify to the ultimate issue of the guilt of a defendant charged with possession with intent to distribute or distribution of drugs. Following this Court’s ruling in State v. Odom, 116 N.J. 65, 560 A.2d 1198 (1989), the majority holds that an expert prosecution witness cannot opine that defendant is guilty of possession of drugs with intent to distribute, but can opine that defendant possessed the drugs with intent to distribute. Ante at 315, 823 A.2d at 20. There is no real difference in the meaning of those two examples of opinion testimony, and yet the majority’s decision hinges on some imaginary distinction between the two. The rule of law should not be based on fictitious distinctions. Because I believe the prosecution’s expert testified to the ultimate issue of guilt in an area not beyond the ken of the average layperson, thereby intruding on the jury’s exclusive province to determine guilt or innocence, I must dissent.
This case represents an all too typical scenario of a street drug transaction observed by police who were conducting surveillance. At trial, a detective testified to his observations of defendant on a street near the boardwalk in Atlantic City. According to the detective, defendant engaged in a conversation with an individual named Dyer, and the two men walked to another location where defendant held out an object in his palm for Dyer. After taking the object, Dyer, in return, passed to defendant what appeared to be folded money. The police arrested Dyer and defendant, finding on Dyer four plastic bags of cocaine and on defendant $262 in currency, a pager, and 50 small plastic bags (identical to the ones seized from Dyer) of cocaine.
The State offered Detective Donna Price as an expert on the means and methods of drug distribution. The prosecutor presented to Detective Price a hypothetical question that mirrored the testimony of the State’s witnesses and, without mentioning their names, referred to defendant as “S-2” and Dyer as “S-l.” Those designations served as no more than a fig leaf to disguise their *319true identities. In response to the prosecutor’s questions, Detective Price stated multiple times that S-2 both possessed drugs “for distribution” and was “distributing drugs.” In so doing, Detective Price pronounced, in the form of an opinion, her personal verdict of guilty.
The jury convicted defendant of a series of drug offenses, including possession with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:35-5a(1), and distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5a(l), -5b(3). A split Appellate Division panel affirmed defendant’s conviction. State v. Summers, 350 N.J.Super. 353, 368, 795 A.2d 308 (App.Div.2002). I agree with Judge Kestin’s dissenting opinion, which concluded that the testimony of the State’s expert exceeded its permissible scope, causing irreparable prejudice. Id. at 368-69, 795 A.2d 308 (Kestin, J.A.D., dissenting). I add these words to highlight the importance of this issue.
Expert testimony is allowed to assist a jury or judge to understand evidence in areas in which an ordinary person of average intelligence and life-experience would not possess knowledge. Our evidentiary rule on expert testimony provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
[N.J.R.E. 702.]
Although opinion testimony is not objectionable even if “it embraces an ultimate issue to be decided by the trier of fact,” N.J.R.E. 704, opinion testimony must at least serve the essential purpose of assisting the jury or judge on a subject in which the trier of fact does not possess equal knowledge, skill, or experience. See State v. Kelly, 97 N.J. 178, 208, 478 A.2d 364 (1984) (holding that, for expert testimony to be admissible, inter alia, “the intended testimony must concern a subject matter that is beyond the ken of the average juror”).
In State v. Odom, supra, the guiding case on the subject before us, the Court gave a mixed and confusing message on the use of *320expert testimony in drug cases. The Court reaffirmed the general understanding that an expert may offer his opinion on matters beyond the ken of the average juror such as the significance of drug quantity, packaging, value, purity, and paraphernalia. 116 N.J. at 76, 78-79, 560 A.2d 1198. But the Court also stated irreconcilable principles that have confounded the lower courts. On the one hand, the Court stated repeatedly the impropriety of an expert expressing in the form of an opinion his belief of a defendant’s guilt: “an expert’s testimony that expresses a direct opinion that defendant is guilty of the crime charged is wholly improper,” id. at 77, 560 A.2d 1198; “as long as the expert does not express his opinion of defendant’s guilt ... the opinion is not objectionable even though it embraces ultimate issues that the jury must decide,” id. at 79, 560 A.2d 1198; “[i]t may be that an expert’s opinion is expressed in such a way as to emphasize that the expert believes the defendant is guilty of the crime charged under the statute. This would be impermissible,” id. at 80, 560 A.2d 1198. On the other hand, the Court concluded that “an expert opinion that the drugs were held for distribution, even though expressed in words that are similar to the statutory definition of the offense, does not rise to the level of an assertion that the defendant committed the crime charged or is guilty of the statutory offense,” id. at 81, 560 A.2d 1198 and “the expert may be asked if, based on ... assumed facts, he or she has an opinion whether the drugs were possessed for personal use or for the purpose of distribution,” id. at 82, 560 A.2d 1198.
The distinctions made in Odom and now repeated by the majority are too insubstantial and ethereal for the mind to grasp. When an expert offers his opinion that a defendant possessed the drugs with intent to distribute — the very phrase by which the crime is defined, the jury knows that the expert has expressed his belief in the defendant’s guilt, and no amount of semantic legerdemain can alter that conclusion.
A number of jurisdictions preclude expert prosecution witnesses from opining as to the defendant’s intent in possession with intent *321to distribute eases. See, e.g., United States v. Boyd, 55 F.3d 667, 671 (D.C.Cir.1995) (holding “that expert testimony concerning the modus operandi of individuals involved in drug trafficking does not violate [F.R.E.] 704(b),” but that expert testimony as to defendant’s intent does); State v. Campbell, 225 Conn. 650, 626 A.2d 287, 291 (1993) (holding “that the trial court incorrectly permitted [the expert witness] to testify as to whether in his opinion the defendant possessed the drugs with the intent to sell or with the intent to use them personally”); Fluellen v. State, 703 So.2d 511, 513 (Fla.Dist.Ct.App.1997) (reversing trial court’s admission of arresting officer’s testimony “that the quantity of cocaine possessed by the [defendant] indicated that the [defendant] possessed the drug with the intent to sell, rather than for personal use .... because it exceeded the limitations of expert testimony and invaded the province of the jury”); State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996) (holding that expert testimony admissible where “[expert] witness did not testify about whether [defendant] possessed the requisite intent to deliver; he merely expressed his opinion that the manner of packaging was consistent with the manner of packaging associated with drug dealing”); Commonwealth v. Woods, 419 Mass. 366, 645 N.E.2d 1153, 1158 (1995) (holding that “police officers’ testimony that the defendant was involved in a drug sale was, in effect, expert opinion that the defendant was guilty of the charges” and “was unnecessary and impermissibly intruded on the jury’s vital fact finding function”); People v. Williams, 224 A.D.2d 725, 638 N.Y.S.2d 705 (App.Div.) (holding expert’s testimony “that the defendant’s possession of 55 vials of crack cocaine evidenced an intent to sell the drugs ... invad[ed] the exclusive province of the jury in determining an ultimate issue of fact”), appeal denied, 88 N.Y.2d 855, 644 N.Y.S.2d 702, 667 N.E.2d 352 (1996); Rodriguez v. Commonwealth, 18 Va.App. 277, 443 S.E.2d 419, 424 (1994) (holding that expert “opinion as to whether a person situated as the defendant intended to distribute cocaine” was “improper ... because it was an opinion by an expert witness going to the ultimate issue of fact *322before the jury”), aff'd, 249 Va. 203, 454 S.E.2d 725 (1995). I believe that those cases represent the better rule of law.
To the extent that Detective Price’s testimony was an appropriate subject for expert testimony pursuant to N.J.R.E. 702, its admissibility remained contingent on a weighing of its probative value versus its prejudicial effect pursuant to N.J.R.E. 403. See State v. Berry, 140 N.J. 280, 298-300, 658 A.2d 702 (1995) (discussing federal and out-of-state cases where “expert testimony in drug cases embracing ultimate issues” held to be “so prejudicial as to require exclusion” (citations omitted)). Although the jury is charged with judging the credibility of each witness and determining the weight to be afforded the testimony of each witness, a jury may be unduly swayed by an expert’s credentials, particularly if the expert is a law enforcement officer. See, e.g., Boyd, supra, 55 F.3d at 672 (“If a jury has reason to be unsure of a defendant’s guilt, but is made to listen to an ‘expert’ who claims to know the defendant’s state of mind, the jurors may rely on the purported expertise of the [prosecution] witness to cure the ambiguity that they face.”); United States v. Fosher, 590 F.2d 381, 383 (1st Cir.1979) (affirming trial court’s holding that “the proffered expert testimony would create a substantial danger of undue prejudice and confusion because of its aura of special reliability and trustworthiness”); State v. Cavallo, 88 N.J. 508, 518, 443 A.2d 1020 (1982) (“While juries would not always accord excessive weight to unreliable expert testimony, there is substantial danger that they would do so, precisely because the evidence is labeled ‘scientific’ and ‘expert.’ ”).
Detective Price’s testimony far exceeded an explanation of the modus operandi of the narcotics trade and, in fact, amounted to a direct conclusion of defendant’s guilt. The State’s expert can provide insight to the jury concerning the narcotics trade beyond the ken of the average juror without interfering with defendant’s right to a fair trial. For example, in the ease of an individual caught in possession of a kilogram of cocaine broken down into hundreds of individual packages, a prosecution drug expert could *323offer an opinion that the quantity and purity of the drugs and manner of packaging is inconsistent with personal use. If scales or other drug paraphernalia indicative of distribution were found in the individual’s possession, an expert would be allowed to testify as to the common and ordinary use of those instruments by drug traffickers. An expert would be permitted to testify to any details concerning the modus opercmdi of drug distribution that would enlighten a jury. However, an expert is no more qualified than a juror to determine the defendant’s state of mind. The expert may provide technical and scientific information from his area of specialized knowledge and training from which a jury can draw an inference concerning the defendant’s state of mind. But in such cases where the ultimate conclusion as to mens rea requires no more than applied commonsense, ordinary life-experience, and simple logic, expert testimony encroaches on the exclusive prerogative of the jury, and the resulting prejudice overwhelms any salutary benefit of the testimony. An expert, who advises the jury that the defendant possessed drugs with intent to distribute, is, in essence, telling the jury that the State has proven all the elements of the crime. In that respect, the expert has announced his own verdict, whether or not he uses the word “guilty.”
In State v. Landeros, 20 N.J. 69, 118 A.2d 521 (1955), this Court recognized the significant prejudice that follows when a police officer testifies to his personal opinion of defendant’s guilt. We found “substantial and vital” error in the admission of a police captain’s testimony that the defendant was “as guilty as Mrs. Murphy’s pet pig.” Id. at 74-75, 118 A.2d 521. Testimony of this kind is prejudicial because
[w]ho, in the layman’s mind, should know better than the captain of police whether or not the defendant was guilty, and when that gentleman had pronounced the defendant’s doom, the jurors had a right to assume the court acquiesced, as the judge offered no comment or instructions either then or later in his charge to the contrary. What juror, under these circumstances, would have the temerity to find otherwise?
[Id. at 75,118 A.2d 521.]
Detective Price’s testimony in this case was the equivalent of saying defendant was “as guilty as Mrs. Murphy’s pet pig.” In *324my opinion, the trial court’s general instruction to the jurors reminding them that they alone were the finders of fact did not render the admission of the expert’s testimony harmless. If, as the State suggests, defendant’s conviction rests on an “ ‘overwhelming’ quantum of evidence,” the State should have no difficulty prosecuting defendant without its expert witness offering her opinion as to defendant’s guilt.
I would reverse and remand for a new trial.
For affirmance — Chief Justice PORITZ and Justices COLEMAN, VERNIERO, LaVECCHIA, and ZAZZALI — 5.
For reversal and remandment — Justices LONG and ALBIN— 2.