CORRUPTING OR INFLUENCING A JURY
The defendant is
charged with the crime of corrupting or influencing a jury. The indictment
reads in pertinent part as follows:
(Read indictment)
This indictment is based on a
statute which provides:
Any person who,
directly or indirectly, corrupts, influences or attempts to corrupt or
influence a jury or juror to be more favorable to the one side than to the
other by promises, persuasions, entreaties, threats, letters, money,
entertainment or other sinister means; or any person who employs any unfair or
fraudulent practice, art or contrivance to obtain a verdict, or attempts to
instruct a jury or juror beforehand at any place or time, or in any manner or
way, except in open court at the trial of the cause, by the strength of the
evidence, the arguments of the parties or their counsel, or the opinion or
charge of the court is guilty of a crime.
In order for you
to find the defendant guilty of this offense, the State is required to prove
each of the following elements beyond a reasonable doubt:
(Charge as Appropriate)
(1a) that the defendant, directly or
indirectly, corrupted, [or] influenced [or attempted to corrupt or influence] a
jury or juror to be more favorable to one side than to the other by promises,
persuasions, entreaties, threats, letters, money, entertainment or other
sinister means;
(and/or)
(1b) that defendant employed any unfair or
fraudulent practice, art or contrivance to obtain a verdict, [or attempted to
instruct a jury or juror beforehand] at any place or time, or in any manner or
way, except in open court during the course of the trial, by the strength of
the evidence, the arguments of the parties or their counsel or the opinion or
charge of the court; and
(Charge as Appropriate)
(2a) that
defendant acted knowingly.
(and/or)
(2b) that defendant
attempted to corrupt or influence the jury.
The
first element that the State must prove beyond a reasonable doubt is that the
defendant, directly or indirectly, corrupted, [or] influenced [or attempted to
corrupt or influence] a jury or juror to be more favorable to one side than to
the other by either promises, persuasions, entreaties, threats, letters, money,
entertainment or other sinister means;
(and/or)
That
defendant employed any unfair or fraudulent practice, art or contrivance to
obtain a verdict, [or attempted to instruct a jury or juror beforehand] at any
place or time, or in any manner or way, except in open court during the course
of the trial, by the strength of the evidence, the arguments of the parties or
their counsel or the opinion or charge of the court.
The
second element that the State must prove beyond a reasonable doubt is that the
defendant acted knowingly.
A
person acts knowingly with respect to the nature of his/her
conduct or the attendant circumstances if he/she
is aware that his/her
conduct is of that nature, or that such circumstances exist, or he/she
is aware of a high probability of their existence.
A
person acts knowingly with respect to a result of his/her
conduct if he/she
is aware that it is practically certain that his/her
conduct will cause such a result. "Knowing," "with
knowledge" or equivalent terms have the same meaning.
Knowledge
is a condition of the mind. It cannot be
seen. It can only be determined by
inferences from defendant’s conduct, words or acts. A state of mind is rarely susceptible of
direct proof but must ordinarily be inferred from the facts. Therefore, it is
not necessary that the State produce witnesses to testify that an accused said
that he/she
had a certain state of mind when he/she
did a particular thing. It is within
your power to find that such proof has been furnished beyond a reasonable doubt
by inferences which may arise from the nature of his/her
acts and conduct and from all he/she
said and did at the particular time and place and from all surrounding
circumstances established by the evidence.
(and/or)
ALTERNATIVE I
[To be used when defendant is charged with
Attempt]
The second element that the State
must prove beyond a reasonable doubt is that the defendant attempted to corrupt
or influence a jury.
ALTERNATIVE II
[If the facts
raise the question whether the crime was completed, the jury should be
instructed to "turn to a consideration of whether an attempt to commit the
crime has been established."[2]]
The indictment charges that the
defendant committed the crime of corrupting or influencing a jury. If you find that the State has failed to
prove beyond a reasonable doubt that the crime of corrupting or influencing a
jury was committed, then you should consider whether an attempt to commit the
crime has been established.
[If “knowing” or lesser culpability would
have sufficed for the completed crime, add the following]
Before I explain the definition of
an attempt, let me explain an important difference between an attempt and the
crime of corrupting or influencing a jury.
Although it is possible to commit the crime of corrupting or influencing
a jury with [knowledge], to be guilty of an attempt the defendant must act with
purpose. In other words, the defendant
must have the purpose to commit the crime of corrupting or influencing a jury,
in order to be guilty of attempting it.[3]
[MAIN
CHARGE]
[Select
the appropriate section]
[(1)
Attempt - Impossibility]
Purposely engages in conduct which
would constitute the crime if the attendant circumstances were as a reasonable
person would believe them to be;
[or]
[(2)
Attempt - When Causing a Particular Result is an Element of the Crime]
Does or omits to do anything with
the purpose of causing [result] without further conduct on his/her
part.
[or]
[(3)
Attempt-Substantial Step]
Purposely does or omits to do
anything which, under the circumstances as a reasonable person would believe
them to be, is an act or omission constituting a substantial step in the course
of conduct planned to culminate in his/her
commission of the crime.
Thus, in order to find the defendant
guilty of a criminal attempt, the State must prove two elements beyond a
reasonable doubt:
[Select
the appropriate Section]
[(1) Attempt - Impossibility]
The first element is that the
defendant acted purposely. A defendant
acts purposely with respect to the nature of his/her
conduct or a result thereof if it is his/her
conscious object to engage in conduct of that nature or to cause such a
result. A person acts purposely with
respect to attendant circumstances if he/she
is aware of the existence of such circumstances or he/she
believes or hopes that they exist.
The second element is that the
defendant engaged in conduct which would constitute the crime of corrupting or
influencing a jury had the facts been as a reasonable person would have
believed them to be.
[Here define the crime allegedly attempted
if it has not been defined already, or refer jurors to the definition
previously charged]
If the accused purposely engaged in
conduct that would constitute the crime of
corrupting or influencing a jury had the facts been as a reasonable
person would have believed them to be, you should consider that conduct as
evidence of guilt of attempt to commit corrupting or influencing a jury. It does not matter that the defendant failed
to accomplish his/her
intended result because the facts were not as a reasonable person would have
believed them to be; it is no defense that the defendant could not succeed in
reaching his/her
intended result because of circumstances unknown to him/her. However, there cannot be an attempt to commit
a crime unless the attempt, if completed, would have constituted the crime.[5]
[or]
[(2)
When Causing a Particular Result is an Element of the Crime]
First,
that the defendant had the purpose to cause [here state the result that is
an element of the alleged attempted crime].
A defendant acts purposely with respect to the nature of his/her
conduct or a result thereof if it is his/her
conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to
attendant circumstances if he/she
is aware of the existence of such circumstances or he/she
believes or hopes that they exist.
The second element is that the
defendant did or omitted to do anything to cause [state the result which is
an element] without further conduct or action on his/her
part. Where the accused has done all
that he/she)
believes necessary to cause [state the result which is an element], you
should consider that as evidence of guilt of an attempt to commit corrupting or
influencing a jury.
[or]
[(3)
Substantial Step]
First, that the defendant had the
purpose to committing the crime of corrupting or influencing a jury. A defendant acts purposely with respect to
the nature of his/her
conduct or a result thereof if it is his/her
conscious object to engage in conduct of that nature or to cause such a
result. A person acts purposely with
respect to attendant circumstances if he/she
is aware of the existence of such circumstances or he/she
believes or hopes that they exist.
The second element is that the
defendant purposely did or omitted to do anything, which, under the
circumstances as a reasonable person would believe them to be, is an act or
omission that is a substantial step in the course of conduct planned to
culminate in his/her
commission of the crime. However, the
step taken must strongly show the defendant’s criminal purpose. That is, the step taken must be substantial
and not just a very remote preparatory act, and must show that the accused has
a firmness of criminal purpose.
[Charge
in Every Case Except One Involving the Renunciation Defense]
If you find that the State has
proven each of these elements beyond a reasonable doubt, then you must find the
defendant guilty of an attempt to commit corrupting or influencing a jury. However, if you find that the State failed to
prove any of these elements beyond a reasonable doubt, then you must find the
defendant not guilty of an attempt to commit corrupting or influencing a jury.
[Charge
Where Appropriate]
RENUNCIATION
OF CRIMINAL PURPOSE
[To be used when the defendant’s conduct
would otherwise constitute an attempt under Section 2 or 3 above]
As part of the defendant’s denial of
guilt, the defendant raised the defense of renunciation of criminal purpose.
The accused must prove, by a
preponderance of the evidence, that he/she
abandoned his/her
effort to commit the crime or otherwise prevented its commission under
circumstances that show a complete and voluntary decision to renounce his/her
criminal purpose. The abandonment of the
criminal effort must begin with the defendant and not be forced
upon him/her by some outside event, such as police intervention.[6]
Renunciation of criminal purpose is not voluntary if the reason for it is that
it seems more likely that defendant will be detected or caught, or the objective
seems more difficult than it did at the beginning of the course of
conduct. Renunciation is not complete if
the defendant only decides to postpone the criminal conduct to a better time or
to focus on another but similar objective or victim. If mere abandonment of the criminal effort is
not enough to prevent the offense, then the defendant must have taken further
and affirmative steps that actually prevented the commission of the offense.[7]
As
I stated, the defendant must prove renunciation by a preponderance of the
evidence. I previously explained that
the State has the burden of proving every element of the crime(s) charged
beyond a reasonable doubt. The burden of
proving renunciation by a preponderance of the evidence is a lesser
burden. It simply means that the
defendant has the burden of establishing that the evidence supporting
renunciation is more likely true than not.
Another way to describe it is the greater weight of the believable
evidence in the case. It does not
necessarily mean the evidence of the greater number of witnesses, but rather,
the evidence that carries the greater convincing power in your minds. I remind you, however, that the burden of
proving every element of the attempt to commit corrupting or influencing a jury
as I have previously defined it is always on the State and never on the
defendant.
If you find that the State has
failed to prove any one of these elements beyond a reasonable doubt, then you
must find the defendant not guilty of an attempt to commit corrupting or influencing
a jury. Also, if you find the State has
proven each of these elements beyond a reasonable doubt, but that the defendant
has established by a preponderance of the evidence that he/she
renounced his/her criminal purpose, then you must find the defendant not
guilty. However, if you find that the
State has proven each of these elements beyond a reasonable doubt and the
defendant has failed to establish renunciation by a preponderance of the
evidence, then you must find the defendant guilty of attempting to corrupt or
influence a jury.
(Charge in All Cases)
If
you find that the State has not proven any of the elements of the crime charged
beyond a reasonable doubt, you must find the defendant not guilty.
If
you find that the State has proven all of the required elements beyond a
reasonable doubt, then you must find the defendant guilty.
(Charge as Appropriate)
If
you have found the defendant guilty beyond a reasonable doubt of corrupting or
influencing a jury, or of attempting to corrupt or influence a jury, then you
must go on with your deliberations and determine whether the State has proven
beyond a reasonable doubt that the defendant employed force or the threat of
force in the course of committing the crime.
Use
of force or threat of force means to employ or threaten to employ the exercise
of strength or power against another. That force need not entail pain or bodily
harm and need not leave any mark.[8]
If
you find that the State has not proven beyond a reasonable doubt the additional
element that the defendant used or threatened the use of force, then you must
find the defendant guilty only of corrupting or influencing a jury [or
attempting to corrupt or influence a jury].
If
you find that the State has proven beyond a reasonable doubt the additional
element that the defendant used or threatened the use of force, then you must
go on with your deliberations and determine whether the defendant employed
force or the threat of force in connection with an official proceeding
involving any of the following crimes:
(Choose Appropriate)
(1) Murder
(2C:11-3);
(2) Aggravated
manslaughter or manslaughter (2C:11-4);
(3) Vehicular
homicide (2C:11-5);
(4) Aggravated
assault (subsection b. of 2C:12-1);
(5) Disarming
a law enforcement officer (subsection b. of 2C:12-11);
(6) Kidnapping
(2C:13-1);
(7) Aggravated
sexual assault (subsection a. of 2C:14-2);
(8) Sexual
assault (subsection b. and paragraph 1 of subsection c. of 2C:14-2);
(9) Robbery
(2C:15-1);
(10) Carjacking (section 1 of 2C:15-2);
(11) Aggravated arson (paragraph 1 of subsection a. of 2C:17-1);
(12) Burglary (2C:18-2);
(13) Extortion (subsection a. of 2C:20-5);
(14) Booby traps in manufacturing or
distribution facilities (subsection b. of 2C:35-4.1);
(15) Strict liability for drug induced deaths
(2C:35-9);
(16) Terrorism (section 2 of 2C:38-2);
(17) Producing or possessing chemical weapons,
biological agents or nuclear or radiological devices (section 3 of 2C:38-3);
and
(18) First degree racketeering (2C:41-2).
The
term “official proceeding” includes any type of proceeding where the taking of
testimony under oath is authorized.[9]
If
you find that the State has failed to prove beyond a reasonable doubt that the
defendant’s use or threat to use force occurred in connection with an official
proceeding involving one of the previously enumerated crimes, then you must
find defendant guilty only of corrupting or influencing a jury by the use or
threatened use of force.
On
the other hand, if you find that the State has proven beyond a reasonable doubt
that the defendant used or threatened to use force in connection with an
official proceeding involving one of the previously enumerated crimes, then you
must find the defendant guilty of this charge.[10]
[1] N.J.S.A.
2C:29-8 was amended by L. 2009, c. 169, § 1, to upgrade the
offense in subsection (a) to a first-degree crime. The amendment was made effective January 9,
2010.
[4] Because all attempts must be purposeful, State v.
Rhett, 136 N.J. 476; State v. Robinson, 127 N.J. 3,
and because other portions of the statute include the requirement of purpose,
the language in N.J.S.A. 2C:5-1a, “acting with the kind of culpability
otherwise required for the commission of the crime,” should not be
charged.
[5] Final
Report of the New Jersey Criminal Law Revision Commission, Vol. II: Commentary, pp.114-115, quoting from State
v. Moretti, 52 N.J. 182, 186-90 (1968). N.J.S.A. 2C:5-1a(1) rejects outright
the defense of impossibility.
[10] In
sum, there are seven possible verdicts for the jury’s consideration: (1) not
guilty; (2) guilty of third-degree corrupting or influencing a jury; (3) guilty
of attempted third-degree corrupting or influencing a jury; (4) guilty of
second-degree corrupting or influencing a jury while employing the use or
threat to use force; (5) guilty of attempted second-degree corrupting or
influencing a jury while employing the use or threat to use force; (6) guilty
of first-degree corrupting or influencing a jury while employing the use or
threat to use force in connection with an official proceeding involving any of
the enumerated crimes; and (7) guilty of attempted first-degree corrupting or
influencing a jury while employing the use or threat to use force in connection
with an official proceeding involving any of the enumerated crimes.
