The defendant as a part of (his/her) denial of guilt contends that (he/she) was not present at the time and place that the crime was allegedly committed, but was somewhere else and therefore could not possibly have committed or participated in the crime. Where a person must be present at the scene of the crime to commit it, the burden of proving the defendant’s presence beyond a reasonable doubt is upon the State. The defendant has neither the burden nor the duty to show that (he/she) was elsewhere at the time and so could not have committed the offense. You must determine, therefore, whether the State has proved each and every element of the offense charged, including that of the defendant’s presence at the scene of the crime and (his/her) participation in it.2
(CHARGE THE FOLLOWING PARAGRAPH ONLY WHERE APPROPRIATE:)
You have heard testimony about when (insert name of defendant or alibi witness) first came forward with (his/her) account of what happened. I instruct you that (insert name of defendant or alibi witness) had no obligation to provide an account at any time and there may be many reasons for (his/her) not doing so.
[CHARGE THE FOLLOWING SENTENCE IF APPLICABLE:]
You will recall that the witness testified that ___________________________.
You may consider the evidence concerning when (he/she) came forward, and why (he/she) did so at that time, only for the limited purpose of deciding whether it affects the credibility of (his/her) account. You may not use the evidence to conclude that (insert name of defendant or alibi witness) violated some obligation to come forward, because (he/she) had no duty to speak on the subject with anyone.3
If, after a consideration of all of the evidence, including the evidence of the defendant’s whereabouts at the time of the offense, you have a reasonable doubt as to whether (he/she)
1 Use of the pejorative word "alibi" should be avoided in the charge. See State v. Peetros, 45 N.J. 540, 553 (1965).
If the facts warrant it, defendant is entitled to the charge even in the absence of a request. State v. Searles, 82 N.J. Super. 210 (App. Div. 1964).
2 State v. Garvin, 44 N.J. 268, 272 (1965); State v. Ravenell, 43 N.J. 171, 187 (1964); State v. Driver, 38 N.J. 255, 290 (1962); State v. Mucci, 25 N.J. 423, 431 (1957).
3 State v. Silva, 131 N.J. 438, 451 (1993); State v. Brown, 118 N.J. 595, 616 & n.3 (1990).
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committed or participated in the crime, you must find the defendant not guilty. If, however, after considering all of the evidence, you are convinced beyond a reasonable doubt of the defendant’s presence at the scene of the crime and have concluded that the State has proved each and every element of the offense charged in the indictment beyond a reasonable doubt, then you must find the defendant guilty.
