(CHARGE
THE FOLLOWING PARAGRAPH IN ALL CASES WHERE THE DEFENDANT HAS TESTIFIED TO AN
ALIBI)
You
have heard testimony about when (insert name of defendant) first came forward
with his/her
account of what happened. I instruct you
that (insert name of defendant) had no obligation to provide an account at any
time and there may be many reasons for his/her
not doing so. You may not use the
testimony about when (name of defendant) first came forward to affect his/her
credibility or to conclude that he/she violated some obligation to come forward, because (name of
defendant) had no duty to speak on the subject with anyone.[3]
(CHARGE
THE FOLLOWING PARAGRAPH IN ALL CASES WHERE AN ALIBI WITNESS HAS TESTIFIED)
You
will [also][4]
recall that the witness testified that ______________________________.
You
may consider the evidence concerning when (name of alibi witness) came forward,
and why (name of alibi witness) did so at that time, only for the limited
purpose of deciding whether it affects the credibility of (name of alibi
witness) account.[5] You may not use the evidence to conclude that
(name of alibi witness) violated some obligation to come forward, because (name
of alibi witness) [also] had no duty to speak on the subject with anyone.[6]
CHARGE
IN ALL CASES
If,
after a consideration of all of the evidence, including the evidence of the
defendant’s whereabouts at the time of the offense, you conclude that the State
has failed to prove beyond a reasonable doubt any of the elements of the
offense(s) charged, you must find the defendant not guilty. If, however, after considering all of the
evidence, you conclude that the State has proven every element of the
offense(s) charged beyond a reasonable doubt, including the defendant’s
presence at the scene of the crime, then you must find the defendant guilty.
[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; State v. Brown, 118 N.J. 595, 616 & n.3 (1990).
[4] The word [also] should be used when
both the defendant and another alibi witness have testified, and the court has
read the preceding paragraph to the jury.
[5] This
sentence applies only to the testimony of a witness other than the defendant
and, in cases where the defendant has testified, the court should emphasize
that it does not apply to the defendant’s testimony. State v. Noble, 398 N.J. Super.
574, 594 n.3 (App. Div. 2008).
[6] State
v. Silva, 131 N.J. 438, 451 (1993); State v. Brown, 118 N.J.
595, 616 & n.3 (1990).