IDENTITY - POLICE PHOTOS Jury Charge

There are in evidence photographs that were used to identify the defendant in this case.
With reference to the photographs submitted into evidence, you will notice that many or
all of the photographs appeared to have been taken by a law enforcement agency, or some other
government entity.
You are not to consider the fact that the agency obtained a photograph of the defendant as
prejudicing him in any way. The photographs are not evidence that the defendant has ever been
arrested or convicted of any crime. Such photographs come into the hands of law enforcement
from a variety of sources, including but not limited to driver's license applications, passports,
ABC identification cards, various forms of government employment, private employment
requiring state regulation, including but not limited to casino license applications, security guard
applications, etc., or from a variety of other sources totally unconnected with criminal activity.

IDENTIFICATION: IN-COURT AND OUT-OF-COURT IDENTIFICATIONS Jury Charge

(Defendant) as part of [his/her] general denial of guilt contends that the State has not
presented sufficient reliable evidence to establish beyond a reasonable doubt that [he/she] is the
person who committed the alleged offense. The burden of proving the identity of the person who
committed the crime is upon the State. For you to find this defendant guilty, the State must
prove beyond a reasonable doubt that this defendant is the person who committed the crime. The
defendant has neither the burden nor the duty to show that the crime, if committed, was
committed by someone else, or to prove the identity of that other person. You must determine,
therefore, not only whether the State has proved each and every element of the offense charged
beyond a reasonable doubt, but also whether the State has proved beyond a reasonable doubt that
this defendant is the person who committed it.
The State has presented the testimony of [insert name of witness who identified
defendant]. You will recall that this witness identified the defendant in court as the person who
committed [insert the offense(s) charged]. The State also presented testimony that on a prior
occasion before this trial, this witness identified the defendant as the person who committed this
offense [these offenses]. According to the witness, [his/her] identification of the defendant was
based upon the observations and perceptions that [he/she] made of the perpetrator at the time the
offense was being committed. It is your function to determine whether the witness' identification
of the defendant is reliable and believable, or whether it is based on a mistake or for any reason
is not worthy of belief.1 You must decide whether it is sufficiently reliable evidence upon which

1
United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933 (1967); State v. Green, 86 N.J. 281, 291-
293 (1981); State v. Edmonds, 293 N.J. Super. 113, 118-119 (App. Div. 1996).
to conclude that this defendant is the person who committed the offense[s] charged.
IDENTIFICATION: IN-COURT AND
OUT-OF-COURT IDENTIFICATIONS
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In evaluating the identifications, you should consider the observations and perceptions on
which the identifications were based, and the witness' ability to make those observations and
perceptions. If you determine that the out-of-court identification is not reliable, you may still
consider the witness' in-court identification of the defendant if you find it to be reliable. Unless
the in-court identification resulted from the witness' observations or perceptions of the
perpetrator during the commission of the offense, rather than being the product of an impression
gained at the out-of-court identification procedure, it should be afforded no weight. The ultimate
issues of the trustworthiness of both the in-court and out-of-court identifications are for you to
decide.2
To decide whether the identification testimony is sufficiently reliable evidence upon
which to conclude that this defendant is the person who committed the offense[s] charged, you
should evaluate the testimony of the witness in light of the factors for considering credibility that
I have already explained to you. In addition, you may consider the following factors [cite
appropriate factors]:3

[If necessary or appropriate for purposes of clarity, the judge may comment on any
evidence relevant to any of the following factors]4

2
United States v. Wade, 388 U.S. at 229-232, 241, 87 S.Ct. at 1933-1935, 1940 (manner in which lineup or
other identification procedure conducted relevant to reliability of out-of-court identification and in-court
identification following out-of-court identification, and jury's credibility determinations).
3
The first five factors listed below were enumerated in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382 (1972), and
United States v. Wade, 388 U.S. at 241, 87 S.Ct. at 1940, as the factors to be considered in evaluating the likelihood of
misidentification. New Jersey courts employ the same analysis. State v. Madison, 109 N.J. 223, 239-240 (1988). See also State
v. Cherry, 289 N.J. Super. 503, 520 (App. Div. 1995).
4
See State v. Cromedy, 158 N.J. 112, 128 (1999) ("when identification is a critical issue in the case, the trial court is
obligated to give the jury discrete and specific instruction that provides appropriate guidelines to focus the jury's attention on how
to analyze and consider the trustworthiness of eyewitness identification"); State v. Green, 86 N.J. at 292, 293 (noting that model
charge could have been used as a guide, court holds that "the defendant had a right to expect that the appropriate guidelines
would be given, focusing the jury's attention on how to analyze and consider the factual issues with regard to the trustworthiness
of [the witness's] in-court identification"); but see State v. Robinson, 165 N.J. 32, 42-45 (2000) (reaffirming obligation under
Green to explain abstract identification factors in factual context of case, but holding that court need not necessarily summarize
weaknesses of State’s evidence); see generally, State v. Gartland, 149 N.J. 456, 475 (1997) (holding that jury charges must relate
the law to the specific facts in a case); State v. A. Gross, 121 N.J. 1 (1990) (same); State v. Concepcion, 111 N.J. 373 (1988)
(same).

IDENTIFICATION: IN-COURT AND
OUT-OF-COURT IDENTIFICATIONS
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(1) The witness' opportunity to view the person who committed the offense at the time
of the offense.5
(2) The witness' degree of attention to the perpetrator at the time of the offense.6
(3) The accuracy of any description the witness gave prior to identifying the perpetrator.7
(4) The degree of certainty expressed by the witness in making any identification.8
(5) The length of time between the witness' observation of the offense and the first
identification.9

5
Facts that may be relevant to this factor include the witness's ability to observe what he/she said he/she saw, the amount
of time during which the witness saw the perpetrator, the distance from which the witness saw the perpetrator, and the lighting
conditions at the time. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253 (1977); Neil v. Biggers, 409 U.S. at
200-201, 93 S.Ct. at 382; State v. Madison, 109 N.J. at 239.
Where supported by evidence that the victim might have difficulty perceiving, recalling, or relating the events, it may
be appropriate to add the following to factor (1): “. . . including the nature of the event being observed and the likelihood that the
witness would perceive, remember, and relate it correctly.” State v. Herrera, 187 N.J. 493, 509 (2006) (quoting State v. Ramirez,
817 P.2d 774, 781 (Utah 1991)).
6
Facts that may be relevant to this factor include whether the witness was merely a passing or casual observer or one
who would be expected to pay scrupulous attention to detail, whether the witness was involved in a direct confrontation with the
perpetrator, whether the witness was nervous, shocked or scared as a result of any confrontation with the perpetrator, and whether
the witness's attention was focused on or away from the perpetrator's features. See Manson v. Brathwaite, 432 U.S. at 115, 97
S.Ct. at 2253; Neil v. Biggers, 409 U.S. at 200, 93 S.Ct. at 382-383; State v. Madison, 109 N.J. at 240.
7
Facts that may be relevant to this factor include whether any description the witness gave of the perpetrator after
observing the incident but before making the identification was accurate or inaccurate, whether the prior description provided
details or was just general in nature, whether the witness' testimony at trial was consistent with, or different from, his/her prior
description of the perpetrator. See Manson v. Brathwaite, 432 U.S. at 115, 97 S.Ct. at 2253; Neil v.Biggers, 409 U.S. at 200, 93
S.Ct. at 383; United States v. Wade, 388 U.S. at 241, 87 S.Ct. at 1940; State v. Madison, 109 N.J. at 240-241; State v. Edmonds,
293 N.J. Super. 113 (App. Div. 1996).
8
Facts that may be relevant to this factor include whether witnesses making the identification received inadvertent or
intentional confirmation, whether certainty was expressed at the time of the identification or some time later, whether intervening
events following the identification affected the witness’s certainty, and whether the identification was made spontaneously and
remained consistent thereafter. See N.J. Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup
Identification Procedures, April 18, 2001, at 2 (quoted in Herrera, 187 N.J. at 190); National Institute of Justice, Convicted by
Juries, Exonerated by Science, June 1996, at 24 (available at https://www.ndjrs.gov/pdffiles/dnaevid.pdf); Gary Wells & Amy
Bradfield, “Good, You Identified the Suspect,” 83 J. Applied Psychol. 360 (1998); Ramirez, 817 P.2d at 781. Whether the
witness made an identification quickly upon viewing the suspect, or whether the witness hesitated, may also be a relevant fact.
See S. Sporer, Eyewitness Identification Accuracy, Confidence, and Decision Times in Simultaneous and Sequential Lineups, 78
J. Applied Psychol. 22, 23 (1993).
Other relevant facts include whether, at a time prior to making the identification of this defendant, the witness either
failed to identify the defendant or identified another person as the perpetrator. See Manson v. Brathwaite, 432 U.S. at 115, 97
S.Ct. at 2253; Neil v. Biggers, 409 U.S. at 201, 93 S.Ct. at 383; Foster v. California, 394 U.S. 440, 442-443 & n.2, 89 S.Ct. 1127,
1128-1129 & n.2 (1969); United States v. Wade, 388 U.S. at 241, 87 S.Ct. at 1940; State v. Madison, 109 N.J. at 241. Madison
cautions, with respect to an identification witness's "demonstrated certainty in his testimony," that "a witness's feeling of
confidence in the details of memory generally do not validly measure the accuracy of the recollection," and that "[i]n fact,
witnesses 'frequently become more confident of the correctness of their memory over time while the actual memory trace is
probably decaying.'" Id. at 241-242 (quoting W.LaFave and J.Israel, Criminal Procedure).
9
See Manson v. Brathwaite, 432 U.S. at 115-116, 97 S.Ct. at 2253-2254; Neil v. Biggers, 409 U.S. at 201, 93 S.Ct. at
383; State v. Madison, 109 N.J. at 242.
IDENTIFICATION: IN-COURT AND
OUT-OF-COURT IDENTIFICATIONS
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(6) Discrepancies or inconsistencies between identifications, if any.10
(7) The circumstances under which any out-of-court identification was made, including
whether it was the product of a suggestive procedure.11 In making this
determination you may consider the following circumstances:

[REFER TO CIRCUMSTANCES OF THE IDENTIFICATION PROCEDURE AS
NECESSARY FOR CLARITY, CHOOSING AS APPROPRIATE ANY OF THE
FOLLOWING FACTORS, OR ANY OTHER FACTORS RELATING TO
SUGGESTIVENESS, THAT ARE SUPPORTED BY THE EVIDENCE:]

• whether anything was said to the witness prior to viewing a photo array, line-up or
showup;12
• whether a photo array shown to the witness contained multiple photographs of the
defendant;13
• whether “all in the lineup but the [defendant] were known to the identifying witness”;14
• whether “the other participants in a lineup were grossly dissimilar in appearance to the
[defendant]”;15
• whether “only the [defendant] was required to wear distinctive clothing which the culprit
allegedly wore”;16
• whether "the witness is told by the police that they have caught the culprit after which the
defendant is brought before the witness alone or is viewed in jail";17
• whether “the [defendant] is pointed out before or during a lineup”;18

10
Facts that may be relevant to this factor include whether the witness' identification at trial was different from, or the
same as, any prior identification that took place out-of-court. See State v. Edmonds, 293 N.J. Super. at 118.
11
See State v. Herrera, 187 N.J. 493 (2006), in which the New Jersey Supreme Court addressed the propriety of a “show-
up” identification; the majority opinion concluded that, while such a procedure is inherently suggestive, the identification
procedure employed there was reliable and did not result in a substantial likelihood of misidentification.
12
See State v. Cherry, 289 N.J. Super. 503 (App. Div. 1995).
13
Id.
14
United States v. Wade, 388 U.S. at 233, 87 S.Ct. at 1935.
15
Id.
16
Id.
17
Id.
18
Id., 87 S.Ct. at 1935-1936.
IDENTIFICATION: IN-COURT AND
OUT-OF-COURT IDENTIFICATIONS
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• whether the witness’s identification was made spontaneously and remained consistent
thereafter;19
• whether the individual conducting the lineup either indicated to the witness that a suspect
was present or failed to warn the witness that the perpetrator may or may not be in the
procedure;20
• whether the witness was exposed to opinions, descriptions, or identifications given by
other witnesses, to photographs or newspaper accounts, or to any other information or
influence that may have affected the independence of his/her identification.21
[CHARGE IN ALL CASES:]
(8) Any other factor based on the evidence or lack of evidence in the case which you
consider relevant to your determination whether the identifications were reliable.
[(9) Jury should be charged on any other relevant factor present in the case22]
[IN THE APPROPRIATE CASE,23 CHARGE THE FOLLOWING FACTOR:]
(10) The fact that an identifying witness is not of the same race as the perpetrator and/or
defendant, and whether that fact might have had an impact on the accuracy of the
witness's original perception, and/or the accuracy of the subsequent identification.


19
See Herrera, 187 N.J. at 509 (quoting State v. Ramirez, 817 P.2d 774, 781 (Utah 1991)).
20
See N.J. Attorney General’s Guidelines, supra, Guideline I.B. (requiring administrator to instruct witness that
perpetrator may not be present); State v. Ledbetter, 881 A.2d 290 (Ct. 2005) (requiring jury instruction to that effect).
21
See Herrera, 187 N.J. at 509 (quoting Ramirez, 817 P.2d at 781 n. 2 (citing State v. Long, 721 P.2d 483, 494 n. 8 (Utah
1986)).
22
The list of factors enumerated in Biggers and Madison is not exhaustive. See State v. White, 158 N.J. 230, (1999) (in
declining to find plain error in identification charge, court notes that instruction went beyond model charge, "noting the
discrepancy ... between identifications made by different witnesses"). Additional relevant factors that should be brought to jury's
attention include the witness's inability to make an in-court identification if asked to do so while on the witness stand, any failure
on the part of the State to record a line-up or preserve a photo array, as bearing upon the probative value of the out-of-court
identification, see State v. Delgado, 188 N.J. 48, 63 (2006); State v. Earle, 60 N.J. 550, 552 (1972); State v. Peterkin, 226 N.J.
Super. 25, 46 (App. Div. 1988),and any discrepancies between identifications made by different witnesses, State v. White, 158
N.J. 230, 248.
23
An instruction that cross-racial identification is a factor to be considered “should be given only when ... identification is
a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it
independent reliability." State v. Cromedy, 158 N.J. at 132; see also State v. Romero, 186 N.J. 604 (2006) (granting certification
to consider whether failure to give cross-racial identification charge was reversible error in factual circumstances of that case).


IDENTIFICATION: IN-COURT AND
OUT-OF-COURT IDENTIFICATIONS
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You should consider that in ordinary human experience, people may have greater
difficulty in accurately identifying members of a different race.24
[CHARGE IN ALL CASES:]
Unless the in-court and out-of-court identifications resulted from the witness's
observations or perceptions of the perpetrator during the commission of the offense, rather than
being the product of an impression gained at the in-court and/or out-of-court identification
procedures, it should be afforded no weight. The ultimate issue of the trustworthiness of the
identification is for you to decide.
If, after consideration of all of the evidence, you determine that the State has not proven
beyond a reasonable doubt that (defendant) was the person who committed this offense [these
offenses], then you must find him/her not guilty. If, on the other hand, after consideration of all
of the evidence, you are convinced beyond a reasonable doubt that (defendant) was correctly
identified, you will then consider whether the State has proven each and every element of the
offense[s] charged beyond a reasonable doubt.

24
Cromedy holds that in order for the jury to determine the reliability of a cross-racial identification not corroborated by
independent evidence, the jury must be informed “of the potential risks associated with such identifications,” that the jury must
be instructed “about the possible significance of the cross-racial identification factor....” 158 N.J. at 132-133.

IDENTIFICATION: OUT-OF-COURT IDENTIFICATION ONLY Jury Charge

(Defendant), as part of [his/her] general denial of guilt, contends that the State has not
presented sufficient reliable evidence to establish beyond a reasonable doubt that [he/she] is the
person who committed the alleged offense. The burden of proving the identity of the person who
committed the crime is upon the State. For you to find (defendant) guilty, the State must prove
beyond a reasonable doubt that this person is the person who committed the crime. (Defendant)
has neither the burden nor the duty to show that the crime, if committed, was committed by
someone else, or to prove the identity of that other person. You must determine, therefore, not
only whether the State has proved each and every element of the offense charged beyond a
reasonable doubt, but also whether the State has proved beyond a reasonable doubt that (this
defendant) is the person who committed it.
The State has presented testimony that on a prior occasion before this trial, [insert name
of witness who identified defendant] identified (defendant) as the person who committed [insert
the offense(s) charged]. According to the witness, [his/her] identification of the defendant was
based upon the observations and perceptions that [he/she] made of the perpetrator at the time the
offense was being committed. It is your function to determine whether the identification of
(defendant) is reliable and believable or whether it is based on a mistake or for any reason is not
worthy of belief.1 You must decide whether it is sufficiently reliable evidence upon which to
conclude that (this defendant) is the person who committed the offense[s] charged. You should
consider the observations and perceptions on which the identification was based, and the
circumstances under which the identification was made. In deciding what weight, if any, to give
to the identification testimony, you may consider the following factors [cite appropriate
factors]:2

1
United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933 (1967); State v. Green, 86 N.J. 281, 291-293 (1981);
State v. Edmonds, 293 N.J. Super. 113, 118-119 (App. Div. 1996).
2
The first five factors listed below were enumerated in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382 (1972), and
United States v. Wade, 388 U.S. at 241, 87 S.Ct. at 1940, as the factors to be considered in evaluating the likelihood of
misidentification. New Jersey courts employ the same analysis. State v. Madison, 109 N.J. 223, 239-240 (1988). See also State
IDENTIFICATION:OUT-OF-COURT
IDENTIFICATION ONLY
Page 2 of 5


[If necessary or a omment on any
3
(1) Th to view the person who committed the offense at the time
4
5
6

(4) The degree of certainty expressed by the witness in making the identification.7
ppropriate for purposes of clarity, the judge may c
evidence relevant to any of the following factors]
e witness's opportunity
of the offense.
(2) The witness's degree of attention to the perpetrator at the time of the offense.
(3) The accuracy of any description the witness gave prior to identifying the perpetrator.

v. Cherry, 289 N.J. Super. 503, 520 (App. Div. 1995).
3
See State v. Cromedy, 158 N.J. 112, 128 (1999) ("when identification is a critical issue in the case, the trial court is
obligated to give the jury discrete and specific instruction that provides appropriate guidelines to focus the jury's attention on how
to analyze and consider the trustworthiness of eyewitness identification"); State v. Green, 86 N.J. at 292, 293 (noting that model
charge could have been used as a guide, court holds that "the defendant had a right to expect that the appropriate guidelines
would be given, focusing the jury's attention on how to analyze and consider the factual issues with regard to the trustworthiness
of [the witness's] in-court identification"); but see State v. Robinson, 165 N.J. 32, 42-45 (2000) (reaffirming obligation under
Green to explain abstract identification factors in factual context of case, but holding that court need not necessarily summarize
weaknesses of State’s evidence); see generally, State v. Gartland, 149 N.J. 456, 475 (1997) (holding that jury charges must relate
law tothe the specific facts in a case); State v. A. Gross, 121 N.J. 1 (1990) (same); State v. Concepcion, 111 N.J. 373 (1988)
(same).
4
Facts that may be relevant to this factor include the witness's ability to observe what he/she said he/she saw, the amount
of time during which the witness saw the perpetrator, the distance from which the witness saw the perpetrator, and the lighting
conditions at the time. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253 (1977); Neil v. Biggers, 409 U.S. at
200-201, 93 S.Ct. at 382; State v. Madison, 109 N.J. at 239.
Where supported by evidence that the victim might have difficulty perceiving, recalling, or relating the events, it may
be appropriate to add the following to factor (1): “. . . including the nature of the event being observed and the likelihood that the
witness would perceive, remember, and relate it correctly.” State v. Herrera, 187 N.J. 493, 509 (2006) (quoting State v. Ramirez,
817 P.2d 774, 781 (Utah 1991)).
5
Facts that may be relevant to this factor include whether the witness was merely a passing or casual observer or one
who would be expected to pay scrupulous attention to detail, whether the witness was involved in a direct confrontation with the
perpetrator, whether the witness was nervous, shocked or scared as a result of any confrontation with the perpetrator, and whether
witnethe ss's attention was focused on or away from the perpetrator's features. See Manson v. Brathwaite, 432 U.S. at 115, 97
S.Ct. at 2253; Neil v. Biggers, 409 U.S. at 200, 93 S.Ct. at 382-383; State v. Madison, 109 N.J. at 240.
6
Facts that may be relevant to this factor include whether any description the witness gave of the perpetrator after
observing the incident but before making the identification was accurate or inaccurate, whether the prior description provided
details or was just general in nature, whether the witness's testimony at trial was consistent with, or different from, his/her prior
description of the perpetrator. See Manson v. Brathwaite, 432 U.S. at 115, 97 S.Ct. at 2253; Neil v.Biggers, 409 U.S. at 200, 93
S.Ct. at 383; United States v. Wade, 388 U.S. at 241, 87 S.Ct. at 1940; State v. Madison, 109 N.J. at 240-241; State v. Edmonds,
293 N.J. Super. 113 (App. Div. 1996).
7
Facts that may be relevant to this factor include whether witnesses making the identification received inadvertent or
intentional confirmation, whether certainty was expressed at the time of the identification or some time later, whether intervening
events following the identification affected the witness’s certainty, and whether the identification was made spontaneously and
remained consistent thereafter. See N.J. Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup
Identification Procedures, April 18, 2001, at 2 (quoted in Herrera, 187 N.J. at 190); National Institute of Justice, Convicted by
Juries, Exonerated by Science, June 1996, at 24 (available at https://www.ndjrs.gov/pdffiles/dnaevid.pdf); Gary Wells & Amy
Bradfield, “Good, You Identified the Suspect,” 83 J. Applied Psychol. 360 (1998); Ramirez, 817 P.2d at 781. Whether the
witness made an identification quickly upon viewing the suspect, or whether the witness hesitated, may also be a relevant fact.
ee S S. Sporer, Eyewitness Identification Accuracy, Confidence, and Decision Times in Simultaneous and Sequential Lineups, 78
J. Applied Psychol. 22, 23 (1993).
Other relevant facts include whether, at a time prior to making the identification of this defendant, the witness either
failed to identify the defendant or identified another person as the perpetrator. See Manson v. Brathwaite, 432 U.S. at 115, 97
S.Ct. at 2253; Neil v. Biggers, 409 U.S. at 201, 93 S.Ct. at 383; Foster v. California, 394 U.S. 440, 442-443 & n.2, 89 S.Ct. 1127,
1128-1129 & n.2 (1969); United States v. Wade, 388 U.S. at 241, 87 S.Ct. at 1940; State v. Madison, 109 N.J. at 241. Madison
IDENTIFICATION:OUT-OF-COURT
IDENTIFICATION ONLY
Page 3 of 5


(5) The length of time between the witness's observation of the perpetrator during the
offense and the identification.8
(6) The circumstances under which the identification was made, including whether or not
it was the product of a suggestive procedure.9 In making this determination you may
consider the following circumstances:

[REFER TO CIRCUMSTANCES OF THE IDENTIFICATION PROCEDURE AS
NECESSARY FOR CLARITY, CHOOSING AS APPROPRIATE ANY OF THE
FOLLOWING FACTORS, OR ANY OTHER FACTORS RELATING TO
SUGGESTIVENESS, THAT ARE SUPPORTED BY THE EVIDENCE:]

• whether anything was said to the witness prior to viewing a photo array, line-up or
showup;10
• whether a photo array shown to the witness contained multiple photographs of the
defendant;11
• whether “all in the lineup but the [defendant] were known to the identifying witness”;12
• whether “the other participants in a lineup were grossly dissimilar in appearance to the
[defendant]”;13
• whether “only the [defendant] was required to wear distinctive clothing which the culprit
allegedly wore”;14
• whether "the witness is told by the police that they have caught the culprit after which the
defendant is brought before the witness alone or is viewed in jail";15
• whether “the [defendant] is pointed out before or during a lineup”;16

cautions, with respect to an identification witness's "demonstrated certainty in his testimony," that "a witness's feeling of
confidence in the details of memory generally do not validly measure the accuracy of the recollection," and that "[i]n fact,
tnesses 'frwi equently become more confident of the correctness of their memory over time while the actual memory trace is
probably decaying.'" Id. at 241-242 (quoting W.LaFave and J.Israel, Criminal Procedure).
8
See Manson v. Brathwaite, 432 U.S. at 115-116, 97 S.Ct. at 2253-2254; Neil v. Biggers, 409 U.S. at 201, 93 S.Ct. at
383; State v. Madison, 109 N.J. at 242.
9
See State v. Herrera, 187 N.J. 493 (2006), in which the New Jersey Supreme Court addressed the propriety of a “show-
ident h a procedure is inherently suggesup” ification; the majority opinion concluded that, while suc
ployed there was reliable and did not result in a substanti tive, the identification cedure al likelihood of misidentification. pro em
10
See State v. Cherry, 289 N.J. Super. 503 (App. Div. 1995).
11
Id.
12
United States v. Wade, 388 U.S. at 233, 87 S.Ct. at 1935.
13
Id.
14
Id.
IDENTIFICATION:OUT-OF-COURT
IDENTIFICATION ONLY
Page 4 of 5


• whether the witness’s identification was made spontaneously and remained consistent
thereafter;17
• whether the individual conducting the lineup either indicated to the witness that a suspect
was present or failed to warn the witness that the perpetrator may or may not be in the
procedure;18
• whether the witness was exposed to opinions, descriptions, or identifications given by
other witnesses, to photographs or newspaper accounts, or to any other information or
influence that may have affected the independence of his/her identification.19
[CHARGE IN ALL CASES:]
(7) Any other factor based on the evidence or lack of evidence in the case which you
consider relevant to your determination of whether the out-of-court identification was
reliable.
[(8) Jury should be charged on any other relevant factor present in the case20]
[IN THE APPROPRIATE CASE,21 CHARGE THE FOLLOWING FACTOR:]
(9) The fact that an identifying witness is not of the same race as the perpetrator and/or
defendant, and whether that fact might have had an impact on the accuracy of the
witness's original perception, and/or the accuracy of the subsequent identification.
You should consider that in ordinary human experience, people may have greater
difficulty in accurately identifying members of a different race.22

15
Id.
16
Id., 87 S.Ct. at 1935-1936.
17
See Herrera, 187 N.J. at 509 (quoting State v. Ramirez, 817 P.2d 774, 781 (Utah 1991)).
18
See N.J. Attorney General’s Guidelines, supra, Guideline I.B. (requiring administrator to instruct witness that
etratoperp r may not be present); State v. Ledbetter, 881 A.2d 290 (Ct. 2005) (requiring jury instruction to that effect).
19
See Herrera, 187 N.J. at 509 (quoting Ramirez, 817 P.2d at 781 n. 2 (citing State v. Long, 721 P.2d 483, 494 n. 8 (Utah
6)). 198
20
The list of factors enumerated in Biggers and Madison is not exhaustive. See State v. White, 158 N.J. 230, (1999) (in
declining to find plain error in identification charge, court notes that instruction went beyond model charge, "noting the
discrepancy ... between identifications made by different witnesses"). Additional relevant factors that should be brought to jury's
attention include the witness's inability to make an in-court identification if asked to do so while on the witness stand, any failure
on the part of the State to record a line-up or preserve a photo array, as bearing upon the probative value of the out-of-court
identification, see State v. Delgado, 188 N.J. 48, 63 (2006); State v. Earle, 60 N.J. 550, 552 (1972); State v. Peterkin, 226 N.J.
Super. 25, 46 (App. Div. 1988),and any discrepancies between identifications made by different witnesses, State v. White, 158
.N.J 230, 248.
21
An instruction that cross-racial identification is a factor to be considered “should be given only when ... identification is
a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it
independent reliability." State v. Cromedy, 158 N.J. at 132; see also State v. Romero, 186 N.J. 604 (2006) (granting certification
onsideto c r whether failure to give cross-racial identification charge was reversible error in factual circumstances of that case).
22
Cromedy holds that in order for the jury to determine the reliability of a cross-racial identification not corroborated by
independent evidence, the jury must be informed “of the potential risks associated with such identifications,” that the jury must
IDENTIFICATION:OUT-OF-COURT
IDENTIFICATION ONLY
Page 5 of 5


[CHARGE IN ALL CASES:]
Unless the out-of-court identification resulted from the witness's observations or
perceptions of the perpetrator during the commission of the offense, rather than being the
product of an impression gained at the out-of-court identification procedure, it should be
afforded no weight. The ultimate issue of the trustworthiness of the identification is for you to
decide.
If, after considering all the evidence, you determine that the State has not proven beyond
a reasonable doubt that (defendant) was the person who committed this offense [these offenses],
then you must find him/her not guilty. If, on the other hand, after considering all of the evidence,
you are convinced beyond a reasonable doubt that (defendant) was correctly identified, you will
then consider whether the State has proven each and every element of the offense[s] charged
beyond a reasonable doubt.


be instructed “about the possible significance of the cross-racial identification factor....” 158 N.J. at 132-33.

IDENTIFICATION: IN-COURT IDENTIFICATION ONLY Jury Charge

(Defendant), as part of [his/her] general denial of guilt, contends that the State has not
presented sufficient reliable evidence to establish beyond a reasonable doubt that [he/she] is the
person who committed the alleged offense. The burden of proving the identity of the person who
committed the crime is upon the State. For you to find (defendant) guilty, the State must prove
beyond a reasonable doubt that this person is the person who committed the crime. (Defendant)
has neither the burden nor the duty to show that the crime, if committed, was committed by
someone else, or to prove the identity of that other person. You must determine, therefore, not
only whether the State has proved each and every element of the offense charged beyond a
reasonable doubt, but also whether the State has proved beyond a reasonable doubt that (this
defendant) is the person who committed it.
The State has presented testimony of [insert name of witness who identified defendant].
You will recall that this witness identified the defendant as the person who committed [insert the
offense(s) charged]. According to the witness, [his/her] identification of the defendant was
based upon the observations and perceptions that [he/she] made of the perpetrator at the time the
offense was being committed. It is your function to determine whether the identification of
(defendant) is reliable and believable or whether it is based on a mistake or for any reason is not
worthy of belief.1 You must decide whether it is sufficiently reliable evidence upon which to
conclude that (this defendant) is the person who committed the offense[s] charged. You should
consider the observations and perceptions on which the identification was based, and the
circumstances under which the identification was made. In deciding what weight, if any, to
give to the identification testimony, you may consider the following factors [cite appropriate
factors]:2

1
United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933 (1967); State v. Green, 86 N.J. 281, 291-293 (1981);
State v. Edmonds, 293 N.J. Super. 113, 118-119 (App. Div. 1996).
2
The first five factors listed below were enumerated in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382 (1972), and
United States v. Wade, 388 U.S. at 241, 87 S.Ct. at 1940, as the factors to be considered in evaluating the likelihood of
misidentification. New Jersey courts employ the same analysis. State v. Madison, 109 N.J. 223, 239-240 (1988). See also State
v. Cherry, 289 N.J. Super. 503, 520 (App. Div. 1995).
IDENTIFICATION:IN-COURT
IDENTIFICATION ONLY
Page 2 of 5



[If necessary or appropriate for purposes of clarity, the judge may comment on any
evidence relevant to any of the following factors]3
(1) The witness's opportunity to view the person who committed the offense at the time
of the offense.4
(2) The witness's degree of attention to the perpetrator at the time of the offense.5
(3) The accuracy of any description the witness gave prior to identifying the perpetrator.6
(4) The degree of certainty expressed by the witness in making the identification.7

3
See State v. Cromedy, 158 N.J. 112, 128 (1999) ("when identification is a critical issue in the case, the trial court is
obligated to give the jury discrete and specific instruction that provides appropriate guidelines to focus the jury's attention on how
to analyze and consider the trustworthiness of eyewitness identification"); State v. Green, 86 N.J. at 292, 293 (noting that model
charge could have been used as a guide, court holds that "the defendant had a right to expect that the appropriate guidelines
would be given, focusing the jury's attention on how to analyze and consider the factual issues with regard to the trustworthiness
of [the witness's] in-court identification"); but see State v. Robinson, 165 N.J. 32, 42-45 (2000) (reaffirming obligation under
Green to explain abstract identification factors in factual context of case, but holding that court need not necessarily summarize
weaknesses of State’s evidence); see generally, State v. Gartland, 149 N.J. 456, 475 (1997) (holding that jury charges must relate
the law to the specific facts in a case); State v. A. Gross, 121 N.J. 1 (1990) (same); State v. Concepcion, 111 N.J. 373 (1988)
(same).
4
Facts that may be relevant to this factor include the witness's ability to observe what he/she said he/she saw, the amount
of time during which the witness saw the perpetrator, the distance from which the witness saw the perpetrator, and the lighting
conditions at the time. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253 (1977); Neil v. Biggers, 409 U.S. at
200-201, 93 S.Ct. at 382; State v. Madison, 109 N.J. at 239.
Where supported by evidence that the victim might have difficulty perceiving, recalling, or relating the events, it may
be appropriate to add the following to factor (1): “. . . including the nature of the event being observed and the likelihood that the
witness would perceive, remember, and relate it correctly.” State v. Herrera, 187 N.J. 493, 509 (2006) (quoting State v. Ramirez,
817 P.2d 774, 781 (Utah 1991)).
5
Facts that may be relevant to this factor include whether the witness was merely a passing or casual observer or one
who would be expected to pay scrupulous attention to detail, whether the witness was involved in a direct confrontation with the
perpetrator, whether the witness was nervous, shocked or scared as a result of any confrontation with the perpetrator, and whether
the witness's attention was focused on or away from the perpetrator's features. See Manson v. Brathwaite, 432 U.S. at 115, 97
S.Ct. at 2253; Neil v. Biggers, 409 U.S. at 200, 93 S.Ct. at 382-383; State v. Madison, 109 N.J. at 240.
6
Facts that may be relevant to this factor include whether any description the witness gave of the perpetrator after
observing the incident but before making the identification was accurate or inaccurate, whether the prior description provided
details or was just general in nature, whether the witness's testimony at trial was consistent with, or different from, his/her prior
description of the perpetrator. See Manson v. Brathwaite, 432 U.S. at 115, 97 S.Ct. at 2253; Neil v.Biggers, 409 U.S. at 200, 93
S.Ct. at 383; United States v. Wade, 388 U.S. at 241, 87 S.Ct. at 1940; State v. Madison, 109 N.J. at 240-241; State v. Edmonds,
293 N.J. Super. 113 (App. Div. 1996).
7
Facts that may be relevant to this factor include whether witnesses making the identification received inadvertent or
intentional confirmation, whether certainty was expressed at the time of the identification or some time later, whether intervening
events following the identification affected the witness’s certainty, and whether the identification was made spontaneously and
remained consistent thereafter. See N.J. Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup
Identification Procedures, April 18, 2001, at 2 (quoted in Herrera, 187 N.J. at 190); National Institute of Justice, Convicted by
Juries, Exonerated by Science, June 1996, at 24 (available at https://www.ndjrs.gov/pdffiles/dnaevid.pdf); Gary Wells & Amy
Bradfield, “Good, You Identified the Suspect,” 83 J. Applied Psychol. 360 (1998); Ramirez, 817 P.2d at 781. Whether the
witness made an identification quickly upon viewing the suspect, or whether the witness hesitated, may also be a relevant fact.
See S. Sporer, Eyewitness Identification Accuracy, Confidence, and Decision Times in Simultaneous and Sequential Lineups, 78
J. Applied Psychol. 22, 23 (1993).
Other relevant facts include whether, at a time prior to making the identification of this defendant, the witness either
failed to identify the defendant or identified another person as the perpetrator. See Manson v. Brathwaite, 432 U.S. at 115, 97
S.Ct. at 2253; Neil v. Biggers, 409 U.S. at 201, 93 S.Ct. at 383; Foster v. California, 394 U.S. 440, 442-443 & n.2, 89 S.Ct. 1127,
1128-1129 & n.2 (1969); United States v. Wade, 388 U.S. at 241, 87 S.Ct. at 1940; State v. Madison, 109 N.J. at 241. Madison
cautions, with respect to an identification witness's "demonstrated certainty in his testimony," that "a witness's feeling of
IDENTIFICATION:IN-COURT
IDENTIFICATION ONLY
Page 3 of 5


(5) The length of time between the witness's observation of the perpetrator during the
offense and the identification.8
(6) The circumstances under which the identification was made, including whether or not
it was the product of a suggestive procedure.9 In making this determination you may
consider the following circumstances:

[REFER TO CIRCUMSTANCES OF THE IDENTIFICATION PROCEDURE AS
NECESSARY FOR CLARITY, CHOOSING AS APPROPRIATE ANY OF THE
FOLLOWING FACTORS, OR ANY OTHER FACTORS RELATING TO
SUGGESTIVENESS, THAT ARE SUPPORTED BY THE EVIDENCE:]

• whether anything was said to the witness prior to viewing a photo array, line-up or
showup;10
• whether a photo array shown to the witness contained multiple photographs of the
defendant;11
• whether “all in the lineup but the [defendant] were known to the identifying witness”;12
• whether “the other participants in a lineup were grossly dissimilar in appearance to the
[defendant]”;13
• whether “only the [defendant] was required to wear distinctive clothing which the culprit
allegedly wore”;14
• whether "the witness is told by the police that they have caught the culprit after which the
defendant is brought before the witness alone or is viewed in jail";15


confidence in the details of memory generally do not validly measure the accuracy of the recollection," and that "[i]n fact,
witnesses 'frequently become more confident of the correctness of their memory over time while the actual memory trace is
probably decaying.'" Id. at 241-242 (quoting W.LaFave and J.Israel, Criminal Procedure).
8
See Manson v. Brathwaite, 432 U.S. at 115-116, 97 S.Ct. at 2253-2254; Neil v. Biggers, 409 U.S. at 201, 93 S.Ct. at
383; State v. Madison, 109 N.J. at 242.
9
See State v. Herrera, 187 N.J. 493 (2006), in which the New Jersey Supreme Court addressed the propriety of a “show-
up” identification; the majority opinion concluded that, while such a procedure is inherently suggestive, the identification
procedure employed there was reliable and did not result in a substantial likelihood of misidentification.
10
See State v. Cherry, 289 N.J. Super. 503 (App. Div. 1995).
11
Id.
12
United States v. Wade, 388 U.S. at 233, 87 S.Ct. at 1935.
13
Id.
14
Id.
15
Id.
IDENTIFICATION:IN-COURT
IDENTIFICATION ONLY
Page 4 of 5


• whether “the [defendant] is pointed out before or during a lineup”;16
• whether the witness’s identification was made spontaneously and remained consistent
thereafter;17
• whether the individual conducting the lineup either indicated to the witness that a suspect
was present or failed to warn the witness that the perpetrator may or may not be in the
procedure;18
• whether the witness was exposed to opinions, descriptions, or identifications given by
other witnesses, to photographs or newspaper accounts, or to any other information or
influence that may have affected the independence of his/her identification.19
[CHARGE IN ALL CASES:]
(7) Any other factor based on the evidence or lack of evidence in the case which you
consider relevant to your determination of whether the out-of-court identification was
reliable.
[(8) Jury should be charged on any other relevant factor present in the case20]
[IN THE APPROPRIATE CASE,21 CHARGE THE FOLLOWING FACTOR:]
(9) The fact that an identifying witness is not of the same race as the perpetrator and/or
defendant, and whether that fact might have had an impact on the accuracy of the
witness's original perception, and/or the accuracy of the subsequent identification.



16
Id., 87 S.Ct. at 1935-1936.
17
See Herrera, 187 N.J. at 509 (quoting State v. Ramirez, 817 P.2d 774, 781 (Utah 1991)).
18
See N.J. Attorney General’s Guidelines, supra, Guideline I.B. (requiring administrator to instruct witness that
perpetrator may not be present); State v. Ledbetter, 881 A.2d 290 (Ct. 2005) (requiring jury instruction to that effect).
19
See Herrera, 187 N.J. at 509 (quoting Ramirez, 817 P.2d at 781 n. 2 (citing State v. Long, 721 P.2d 483, 494 n. 8 (Utah
1986)).
20
The list of factors enumerated in Biggers and Madison is not exhaustive. See State v. White, 158 N.J. 230, (1999) (in
declining to find plain error in identification charge, court notes that instruction went beyond model charge, "noting the
discrepancy ... between identifications made by different witnesses"). Additional relevant factors that should be brought to jury's
attention include the witness's inability to make an in-court identification if asked to do so while on the witness stand, any failure
on the part of the State to record a line-up or preserve a photo array, as bearing upon the probative value of the out-of-court
identification, see State v. Delgado, 188 N.J. 48, 63 (2006); State v. Earle, 60 N.J. 550, 552 (1972); State v. Peterkin, 226 N.J.
Super. 25, 46 (App. Div. 1988),and any discrepancies between identifications made by different witnesses, State v. White, 158
N.J. 230, 248.
21
An instruction that cross-racial identification is a factor to be considered “should be given only when ... identification is
a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it
independent reliability." State v. Cromedy, 158 N.J. at 132; see also State v. Romero, 186 N.J. 604 (2006) (granting certification
to consider whether failure to give cross-racial identification charge was reversible error in factual circumstances of that case).
IDENTIFICATION:IN-COURT
IDENTIFICATION ONLY
Page 5 of 5


You should consider that in ordinary human experience, people may have greater
difficulty in accurately identifying members of a different race.22
[CHARGE IN ALL CASES:]
Unless the in-court identification resulted from the witness's observations or perceptions
of the perpetrator during the commission of the offense, it should be afforded no weight. The
ultimate issue of the trustworthiness of the identification is for you to decide.
If, after considering all the evidence, you determine that the State has not proven beyond
a reasonable doubt that (defendant) was the person who committed this offense [these offenses],
then you must find him/her not guilty. If, on the other hand, after considering all of the evidence,
you are convinced beyond a reasonable doubt that (defendant) was correctly identified, you will
then consider whether the State has proven each and every element of the offense[s] charged
beyond a reasonable doubt.


22
Cromedy holds that in order for the jury to determine the reliability of a cross-racial identification not corroborated by
independent evidence, the jury must be informed “of the potential risks associated with such identifications,” that the jury must
be instructed “about the possible significance of the cross-racial identification factor....” 158 N.J. at 132-33.

HYPNOTICALLY REFRESHED TESTIMONY Jury Charge

The State [the defense] has presented the testimony of [witness’s name], whose testimony
it claims has been hypnotically refreshed.1 Hypnosis is a state of heightened concentration with
diminished awareness of peripheral events.2 In evaluating this testimony you must consider first
of all the ordinary tests of credibility that I have already explained to you. However, you must
also consider the following four special facts about the effects of hypnosis.
First, people who have been hypnotized are vulnerable to intentional or unintentional
suggestions made by the interviewers. This means that they have a tendency to remember things
under hypnosis only because the interviewers intentionally or unintentionally suggested them,
and not because they really happened. Second, they tend to lose critical judgment while under
hypnosis, which means that they have less ability to judge for themselves whether what they
appear to remember is plausible or accurate. Third, they tend to confuse hypnotic recall with
waking memory, which means that hypnotized people tend to confuse their memories with facts
injected during hypnosis, and tend to think that they actually remember the injected facts.
Fourth, they tend to have increased confidence about the accuracy of their testimony after
hypnosis.3
Therefore, while the credibility of this testimony is a question for you as jurors to decide,
you must consider these special features of hypnotically refreshed testimony along with the
ordinary tests of credibility that I have already explained. At the end of this process, you may as
judges of the facts accept all of the hypnotically refreshed testimony, or a portion of it, or none of
it.

1
If the parties have presented any testimony by the person who conducted the hypnosis session, or any
expert witnesses who challenge or support the testimony’s reliability, give the model charge on expert testimony.
Also, the model charge on credibility of witnesses should be given before this charge.
2
State v. Hurd, 86 N.J. 525, 534 (1981).
3
State v. Fertig, 143 N.J. 115, 127 (1996), citing State v. Hurd, 86 N.J. at 540.

FRESH COMPLAINT: SILENCE OR FAILURE TO COMPLAIN Jury Charge

The law recognizes that stereotypes about sexual assault complainants may lead some of you
to question [complaining witness’s] credibility based solely on the fact that [he or she] did not
complain about the alleged abuse sooner. You may not automatically conclude that [complaining
witness’s] testimony is untruthful based only on [his or her] silence/delayed disclosure. Rather, you
may consider the silence/delayed disclosure along with all of the other evidence including
[complaining witness’s] explanation for his/her silence/delayed disclosure when you decide how
much weight to afford to [complaining witness’s] testimony.

1
This charge should be used when there is no Child Sexual Abuse Accommodation Syndrome
testimony. State v. P.H., 178 N.J. 378 (2004).

FLIGHT Jury Charge

There has been some testimony in the case from which you may infer that the defendant
fled shortly after the alleged commission of the crime. The defendant denies any flight, (or, the
defendant denies that the acts constituted flight). The question of whether the defendant fled
after the commission of the crime is another question of fact for your determination. Mere
departure from a place where a crime has been committed does not constitute flight. If you find
that the defendant, fearing that an accusation or arrest would be made against (him/her) on the
charge involved in the indictment, took refuge in flight for the purpose of evading the accusation
or arrest on that charge, then you may consider such flight in connection with all the other
evidence in the case, as an indication or proof of consciousness of guilt. Flight may only be
considered as evidence of consciousness of guilt if you should determine that the defendant's
purpose in leaving was to evade accusation or arrest for the offense charged in the indictment.
OR
(THE FOLLOWING SHOULD BE USED WHERE THE DEFENSE HAS NOT DENIED
THAT (HE/SHE) DEPARTED THE SCENE BUT HAS SUGGESTED AN
EXPLANATION.)

There has been some testimony in the case from which you may infer that the defendant
fled shortly after the alleged commission of the crime. The defense has suggested the following
explanation:
(SET FORTH EXPLANATION SUGGESTED BY DEFENSE)

If you find the defendant’s explanation credible, you should not draw any inference of the
defendant’s consciousness of guilt from the defendant’s departure.
If, after a consideration of all the evidence, you find that the defendant, fearing that an
accusation or arrest would be made against (him/her) on the charge involved in the indictment,
took refuge in flight for the purpose of evading the accusation or arrest, then you may consider
such flight in connection with all the other evidence in the case, as an indication or proof of a
consciousness of guilt.
It is for you as judges of the facts to decide whether or not evidence of flight shows a
consciousness of guilt and the weight to be given such evidence in light of all the other evidence
in the case.


FLIGHT
Page 2 of 2


CASES:
State v. Mann, 132 N.J. 410 (1993).
State v. Leak, 128 N.J. Super. 212 (App. Div.), certif. denied 65 N.J. 565 (1974).
State v. Petrolia, 45 N.J. Super. 230 (App. Div. 1957).
State v. Centalonza, 18 N.J. Super. 154, 161 (App. Div. 1952).


NOTE:
1. Mere departure from the scene is distinguished from flight.
See: State v. Sullivan, 43 N.J. 209 (1964).
State v. Jones, 94 N.J. Super. 137 (App. Div. 1967)

2. State v. Wilson, 57 N.J. 49 (1970) states:
"You the jury must first find that there was a "departure" from the scene and then
you must also find a motive which would turn the departure into flight." This
charge may be necessary to include contingent upon the right factual context.

FINGERPRINTS Jury Charge

There was testimony that the (law enforcement agency) had fingerprints of the defendant
on file. You are not to consider that fact as prejudicing the defendant in any way. That fact is
not evidence that the defendant has ever been convicted, or even arrested for any crime, and is
not to be considered as such by you.
The fact that the (law enforcement agency) is in possession of a person's fingerprints does
not mean that the person has a criminal record. Fingerprints come into the hands of law
enforcement agencies from many legitimate sources. These include, but are not limited to: birth
certificates, grade school child identification programs, military service, many forms of
employment, including municipal, county, state and federal jobs, casino license applications,
private security guard applications, firearms and liquor license applications, passport
applications, as well as other sources totally unconnected with criminal activity.

FALSE IN ONE - FALSE IN ALL Jury Charge

(A TRIAL JUDGE, IN (HIS/HER) DISCRETION, MAY GIVE THIS CHARGE IN ANY
SITUATION IN WHICH (HE/SHE) REASONABLY BELIEVES A JURY MAY FIND A
BASIS FOR ITS APPLICATION - SEE STATE V. ERNST, 32 N.J. 567 (1960)).

If you believe that any witness or party willfully or knowingly testified falsely to any
material facts in the case, with intent to deceive you, you may give such weight to his or her
testimony as you may deem it is entitled. You may believe some of it, or you may, in your
discretion, disregard all of it.

State v. Ernst, 32 N.J. 567, 583 (1960)
State v. D'Illopito, 22 N.J. 318, 324 (1956)
State v. Sturchio, 127 N.J.L. 366, 369 (Sup. Ct. 1941)
State v. Samuels, 92 N.J.L. 131, 133 (Sup. Ct. 1918)

The same charge applies to the civil side.

Lawnton v. Virginia Stevedoring Co., 50 N.J. Super. 564, 581 (App. Div. 1958)
Hargrave v. Stockloss, 127 N.J.L. 262, 266 (E.&A. 1941)
Coleman v. Public Service Coordinated Transport, 120 N.J.L. 384, 387 (Sup. Ct.
1938)

For a full discussion of the use and application of the maxim, see,
Vol. 3A Wigmore on Evidence (1970) Sec. 1008 et. seq.

DISMISSAL OF JURY Jury Charge

Ladies and gentlemen of the jury, as you now must realize, the function which you have
performed is the most important task which you will ever be called upon to fulfill. With the
return of your verdict, your service in this case is complete.
The key to your function has been the free discussion among yourselves during your
deliberations. It is essential to the continuation of the fair administration of justice that those
discussions remain solely within your minds.
Upon your discharge you are not required, except upon Order of this Court, to discuss
your deliberations or verdict with anyone. Additionally, no person connected with this trial is
permitted, under the Rules of Court, to engage you in conversation about this matter or your role
in its outcome.
All jurors have a right to expect that their communications with their fellow jurors during
deliberations will remain confidential. (It is in the public interest that there be the utmost
freedom of discussion in the jury room and that each juror be permitted to express his or her
views without fear of incurring public scorn or the anger of any of the litigants.)
Under no circumstances should you make a statement which you would not be willing to
repeat under oath in open court in the presence of your fellow jurors.

[Thank Jurors For Their Service]


*In addition to giving this charge upon dismissal of the jury, a judge may wish to give the charge
at the beginning of the case as well.

DEFENDANT'S ELECTION NOT TO TESTIFY Jury Charge

As you know, (defendant) elected not to testify at trial. It is his/her constitutional right to
remain silent.
You must not consider for any purpose or in any manner in arriving at your verdict the fact
that (defendant) did not testify. That fact should not enter into your deliberations or discussions in
any manner, at any time.
(Defendant) is entitled to have the jury consider all evidence presented at trial. He/she is
presumed innocent even if he/she chooses not to testify.
Malloy v. Hogan, 378 U.S. 1 (1964).
Griffin v. California, 380 U.S. 609 (1965).
State v. McLaughlin, 93 N.J. Super. 435, 439 (App. Div. 1967).
N.J.S. 2A:84A-17(1).

U.S. v. Garguillo, 310 F. 2d 249, 252 (2 Cir. 1962).

U.S. v. Kelly, 349 F. 2d 720, 769 (2 Cir. 1965), cert. denied 384 U.S. 947 (1966).
State v. De Stasio, 49 N.J. 247 (1967).





1
The defendant’s individual consent should be obtained when giving this charge. Also, where non-
testifying defendants disagree as to whether the charge should be given, it is preferable to give the charge as to all
defendants. See State v. McNeil, 164 N.J. Super. 27 (App. Div. 1978) and Lakeside v. Oregon, 435 U.S. 333 (1978).

DEFENDANT’S ABSENCE FROM TRIAL Jury Charge

As you know, (defendant) was absent from the trial. You should not speculate about the
reason for his/her absence.
You are not to consider for any purpose or in any manner in arriving at your verdict the
fact that (defendant) was not present at trial. That fact should not enter into your deliberations or
discussions in any manner, at any time.
(Defendant) is entitled to have the jury consider all evidence presented at trial. He/she is
presumed innocent even if he/she is not present.




1
This instruction may need to be modified or may be inappropriate altogether if a
Flight from Trial charge is warranted.

CREDIBILITY - PRIOR CONVICTION OF A WITNESS Jury charge

REVISED 2/24/03




You have heard evidence that [name of witness(es)] has [have] previously been convicted
of [a] crime[s]. This evidence may be only used in determining the credibility or believability of
[these] witness' [witnesses’] testimony.
A jury has a right to consider whether a person who has previously failed to comply with
society's rules as demonstrated through [a] criminal conviction(s) would be more likely to ignore
the oath requiring truthfulness on the witness stand than a person who has never been convicted
of a crime. You may consider in determining this issue the nature and degree1 of the prior
conviction[s] and when it [they] occurred.
You are not, however, obligated to change your opinion as to the credibility of this
[these] witness[es] simply because of [a] prior conviction[s]. You may consider such evidence
along with all the other factors we previously discussed in determining credibility of a witness.

1
State v. Brunson, 132 N.J. 377 (1993)[sanitization of defendant’s conviction].

CREDIBILITY - PRIOR CONVICTION OF A DEFENDANT Jury charge

You have heard evidence that (name of defendant) has previously been convicted of [a]
crime[s]. This evidence may only be used in determining the credibility or believability of the
defendant’s testimony. You may not conclude that the defendant committed the crime charged
in this case or is more likely to have committed the crime charged simply because he/she
committed a crime on another occasion.
A jury has a right to consider whether a person who has previously failed to comply with
society's rules as demonstrated through a criminal conviction would be more likely to ignore the
oath requiring truthfulness on the witness stand than a person who has never been convicted of
any crime. You may consider in determining this issue the nature and degree1 of the prior
conviction[s] and when it [they] occurred.
Our law permits a conviction to be received in evidence only for the purpose of affecting
the credibility of the defendant and for not other purpose. You are not, however, obligated to
change your opinion as to the credibility of the defendant simply because of [a] prior
conviction[s]. You may consider such evidence along with all the other factors we previously
discussed in determining the credibility of the defendant.

1
State v. Brunson, 132 N.J. 377 (1993)

CREDIBILITY OF WITNESS - PRIOR ADJUDICATION OF DELINQUENCY Jury charge

Revised 3/22/2004




Evidence has been introduced to show that [Name of Witness] has been previously
adjudicated a juvenile delinquent and is presently on [CHOOSE APPROPRIATE:
parole/probation/conditional discharge/other deferred disposition]. This evidence of this
witness' present status does not have any bearing on the general credibility to be given [his/her]
testimony. Rather, the evidence has been admitted to allow you to determine whether [his/her]
testimony has been influenced by possible bias, prejudice, interest or ulterior motive.1 More
specifically, this evidence may be relevant to the question whether testimony is influenced by a hope
or expectation of favorable treatment.2

1
Davis v. Alaska, 415 U.S. 308 (1974); Biunno, Current New Jersey Rules of Evidence, Comment 4 to
N.J.R.E. 611 (2003 Edition, page 760).
2
State v. Spano, 69 N.J. 231, 235 (1976); United States ex. rel. Herring v. Fenton, 531 F.Supp. 937,
941 (D.N.J. 1981); Biunno, Current New Jersey Rules of Evidence, Comment 2 to N.J.R.E. 609 (2003
Edition, page 717).

COMPENSATION OF EXPERTS Jury charge

OPTIONAL CHARGE CONCERNING COMPENSATION OF EXPERTS


The expert witnesses who testified, of course, are paid for their work. [CHARGE
WHERE APPROPRIATE:1 Experts are paid for their special knowledge, skill, experience, or
training. Some may be full-time employees who receive a regular salary for their work, and some
may be outside experts consulted for this particular case who receive a fixed or hourly fee.]
You may consider the compensation received by the expert witness(es) as bearing on
(his/her/their) credibility. You should understand, however, that there is nothing improper in any
expert receiving reasonable compensation for (his/her) work or for (his/her) appearing in court.
[CHARGE WHERE APPROPRIATE IF RAISED BY THE EVIDENCE]
If you find from the evidence that the amount of compensation received is unreasonable,
or if you find from the evidence that the expert was paid simply to reach a particular result, you
may consider whether that affects the credibility, interest or bias of the witness.
[CHARGE IN ALL CASES]
As always, you may give the opinion such weight as you determine it deserves, consistent
with the general rules of determining credibility.

1
See State v. Smith, 167 N.J. 158, 189 (2001).

CHILD SEXUAL ABUSE ACCOMMODATION Jury Charge

Revised 03/22/04

CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME1
[WHERE STATE PRESENTS NO EVIDENCE THEREOF]


The law recognizes that stereotypes about sexual assault complaints may lead some of
you to question [complainant’s] credibility based solely on the fact that [he/she] did not complain
about the alleged abuse earlier. You may not automatically conclude that his/her testimony is
untruthful based only on his/her [silence/delayed disclosure] [CHOOSE APPLICABLE
TERM]. Rather, you may consider the [silence/delayed disclosure] along with all other
evidence including [complainant’s] explanation for his/her silence/delayed disclosure in deciding
how much weight, if any, to afford to complainant’s testimony.2
You may recall evidence that (NAME) [failed to disclose, or recanted, or acted or failed
to act in a way addressed by the Child Sexual Abuse Accommodation Syndrome]. In this
respect, Dr. [A], Ph.D., testified on behalf of the State [and Dr. [B], Ph.D., testified on behalf of
the defendant].3 Both witnesses were qualified as experts as to the Child Sexual Abuse
Accommodation Syndrome.4 You may only consider the testimony of these experts for a limited
purpose, as I will explain.
You may not consider Dr. [A]’s testimony as offering proof that child sexual abuse
occurred in this case. [Likewise, you may not consider Dr. [B]’s testimony as proof that child
sexual abuse did not occur]. The Child Sexual Abuse Accommodation Syndrome is not a

1
This charge should be given, where applicable, as part of the Expert Witness charge.

2
This language is derived from that approved by the Supreme Court in State v. P.H., 178 N.J. 378, 399-400
(2004).

3
This Model Charge should be modified where an expert on the Accommodation Syndrome is called by
only one party.

4
See State v. J.Q., 252 N.J. Super. 11 (App. Div. 1991), aff’d 130 N.J. 554 (1993).
CHILD SEXUAL ABUSE ACCOMMODATION
SYNDROME [WHERE STATE PRESENTS NO
EVIDENCE THEREOF]
Page 2 of 3

diagnostic device and cannot determine whether or not abuse occurred. It relates only to a
pattern of behavior of the victim which may be present in some child sexual abuse cases. You
may not consider expert testimony about the Accommodation Syndrome as proving whether
abuse occurred or did not occur. Similarly, you may not consider that testimony as proving, in
and of itself, that , the alleged victim here, was or was not truthful.
Dr. [A]’s testimony may be considered as explaining certain behavior of the alleged
victim of child sexual abuse. As I just stated, that testimony may not be considered as proof that
abuse did, or did not, occur. The Accommodation Syndrome, if proven, may help explain why a
sexually abused child may [delay reporting and/or recant allegations of abuse and/or deny that
any sexual abuse occurred].
To illustrate, in a burglary or theft case involving an adult property owner, if the owner
did not report the crime for several years, your common sense might tell you that the delay
reflected a lack of truthfulness on the part of the owner. In that case, no expert would be offered
to explain the conduct of the victim, because that conduct is within the common experience and
knowledge of most jurors.
Here, Dr. [A] testified that, in child sexual abuse matters, [SUMMARIZE
TESTIMONY]. This testimony was admitted only to explain that the behavior of the alleged
victim was not necessarily inconsistent with sexual abuse. [CHARGE, IF APPLICABLE:
Here, Dr. [B] testified that, in child sexual abuse matters, [SUMMARIZE TESTIMONY]. This
testimony was admitted only to explain that the behavior of the victim was not necessarily
consistent with sexual abuse].


The weight to be given to Dr. [A]’s [or Dr. [B]’s] testimony is entirely up to you. You
may give it great weight, or slight weight, or any weight in between, or you may in your
discretion reject it entirely.
You may not consider the expert testimony as in any way proving that [defendant]
committed, or did not commit, any particular act of abuse. Testimony as to the Accommodation
Syndrome is offered only to explain certain behavior of an alleged victim of child sexual abuse.

CHILD SEXUAL ABUSE ACCOMMODATION Jury Charge

CHILD SEXUAL ABUSE ACCOMODATION SYNDROME1
(WHERE STATE PRESENTS EVIDENCE THEREOF)


The law recognizes that stereotypes about sexual assault complaints may lead some of
you to question [complainant’s] credibility based solely on the fact that [he/she] did not complain
about the alleged abuse earlier. You may not automatically conclude that his/her testimony is
untruthful based only on his/her [silence/delayed disclosure] [CHOOSE APPLICABLE
TERM]. Rather, you may consider the [silence/delayed disclosure] along with all other
evidence including [complainant’s] explanation for his/her silence/delayed disclosure in deciding
how much weight, if any, to afford to complainant’s testimony. You may also consider the
expert testimony that explained that silence/delay is one of the many ways in which a child may
respond to sexual abuse. Accordingly, your deliberations in this regard should be informed by
the testimony presented concerning the child sexual abuse accommodation syndrome. 2
You may recall evidence that (NAME) [failed to disclose, or recanted, or acted or failed
to act in a way addressed by the Child Sexual Abuse Accommodation Syndrome]. In this
respect, Dr. [A], Ph.D., testified on behalf of the State [and Dr. [B], Ph.D., testified on behalf of
the defendant].3 Both witnesses were qualified as experts as to the Child Sexual Abuse
Accommodation Syndrome.4 You may only consider the testimony of these experts for a limited
purpose, as I will explain.

1
This charge should be given, where applicable, as part of the Expert Witness charge.

2
This language is derived from that approved by the Supreme Court in State v. P.H., 178 N.J. 378, 399-400
(2004).

3
This Model Charge should be modified where an expert on the Accommodation Syndrome is called by
only one party.

4
See State v. J.Q., 252 N.J. Super. 11 (App. Div. 1991, aff’d 130 N.J. 554 (1993).
CHILD SEXUAL ABUSE ACCOMMODATION
SYNDROME [WHERE STATE PRESENTS
EVIDENCE THEREOF]
Page 2 of 3

You may not consider Dr. [A]’s testimony as offering proof that child sexual abuse
occurred in this case. [Likewise, you may not consider Dr. [B]’s testimony as proof that child
sexual abuse did not occur]. The Child Sexual Abuse Accommodation Syndrome is not a
diagnostic device and cannot determine whether or not abuse occurred. It relates only to a
pattern of behavior of the victim which may be present in some child sexual abuse cases. You
may not consider expert testimony about the Accommodation Syndrome as proving whether
abuse occurred or did not occur. Similarly, you may not consider that testimony as proving, in
and of itself, that , the alleged victim here, was or was not truthful.
Dr. [A]’s testimony may be considered as explaining certain behavior of the alleged
victim of child sexual abuse. As I just stated, that testimony may not be considered as proof that
abuse did, or did not, occur. The Accommodation Syndrome, if proven, may help explain why a
sexually abused child may [delay reporting and/or recant allegations of abuse and/or deny that
any sexual abuse occurred].
To illustrate, in a burglary or theft case involving an adult property owner, if the owner
did not report the crime for several years, your common sense might tell you that the delay
reflected a lack of truthfulness on the part of the owner. In that case, no expert would be offered
to explain the conduct of the victim, because that conduct is within the common experience and
knowledge of most jurors.
Here, Dr. [A] testified that, in child sexual abuse matters, [SUMMARIZE TESTIMONY].
This testimony was admitted only to explain that the behavior of the alleged victim was not necessarily
inconsistent with sexual abuse. [CHARGE, IF APPLICABLE: here, Dr. [B] testified that, in child
sexual abuse matters, [SUMMARIZE TESTIMONY]. This testimony was admitted only to explain that
the behavior of the victim was not necessarily consistent with sexual abuse].

The weight to be given to Dr. [A]’s [or Dr. [B]’s] testimony is entirely up to you. You may give
it great weight, or slight weight, or any weight in between, or you may in your discretion reject it entirely.
You may not consider the expert testimony as in any way proving that [defendant] committed, or
did not commit, any particular act of abuse. Testimony as to the Accommodation Syndrome is offered
only to explain certain behavior of an alleged victim of child sexual abuse.