CRIME OF OFFICIAL DEPRIVATION OF CIVIL RIGHTS
(N.J.S.A. 2C:30-6) model jury charge
Count ___________ of the indictment
charges the defendant with the Crime of Official Deprivation of Civil Rights. [Read count of the Indictment.] The
statute upon which this charge is based reads as follows:
A public servant acting
or purporting to act in an official capacity commits the crime of official
deprivation of civil rights if, knowing that his conduct is unlawful, and
acting with the purpose to intimidate or discriminate against an individual or group of individuals because of
race, color, religion, gender, handicap, sexual orientation or ethnicity, the
public servant: (1) subjects another to unlawful arrest or detention,
including, but not limited to, motor vehicle investigative stops, search,
seizure, dispossession, assessment, lien or other infringement of personal or
property rights; or (2) denies or impedes another in the lawful exercise or
enjoyment of any right, privilege, power or immunity.
In order to find the defendant
guilty of this charge, the State must prove beyond a reasonable doubt the
following elements:
1.
That the defendant was a public servant;
2.
That the defendant knowingly acted or purported to act in an official capacity;
3.
That the defendant knew that his/her
conduct was unlawful;
4.
That the defendant acted with the purpose to intimidate
or discriminate against an individual or group of individuals because of
[choose appropriate category] race, color, religion, gender, handicap, sexual
orientation or ethnicity, and;
[Choose appropriate section]
5(1). That the
defendant subjected another to unlawful arrest or detention, including but not
limited to, motor vehicle investigative stops, search, seizure, dispossession, assessment,
lien or other infringement of personal or property rights;
[or]
5(2). That the
defendant denied or impeded another in the lawful exercise or enjoyment of any
right, privilege, power or immunity.
[Resume full charge]
The first element the State must
prove beyond a reasonable doubt is that the defendant was a public servant at
the relevant time(s). A public servant
means any officer or employee of government including legislators and judges,
and any person participating as juror, advisor, consultant or otherwise, in performing
a governmental function, but the term does not include witnesses.[1]
Here the State alleges __________. [Charge if the defendant requests:] The
defendant counters as follows: __________.
The second element the State must
prove beyond a reasonable doubt is that the defendant knowingly acted or
purported to act in an official capacity. The act must relate to the public servant’s
office.
The third element the State must
prove beyond a reasonable doubt is that the defendant knew his/her
conduct was unlawful.
For purposes of this section, an act
is unlawful if it violates the Constitution of the United States, or the Constitution
of this State, or if it constitutes a criminal offense under the laws of this
State.[2]
The fourth element the State must prove
beyond a reasonable doubt is that the defendant acted with the purpose to
intimidate or discriminate against an individual or group of individuals because
of [choose appropriate category]
race, color, religion, gender[3],
handicap[4],
sexual orientation or ethnicity. To intimidate means to put another person in
fear. [Charge if appropriate]: When
the actual victim is one other than the intended victim, it is immaterial that
the actual victim was not the intended victim.[5]
[If
the category includes ‘handicap’, consider using the following definition of
‘disability:’
“Disability” means
physical disability, infirmity, malformation or disfigurement which is caused
by bodily injury, birth defect or illness including epilepsy and other seizure
disorders, and which shall include, but not be limited to, any degree of
paralysis, amputation, lack of physical coordination, blindness or visual impediment,
deafness or hearing impediment, muteness or speech impediment or physical
reliance on a service or guide dog, wheelchair, or other remedial appliance or device,
or any mental, psychological, or developmental disability, including autism
spectrum disorders, resulting from anatomical, psychological, physiological or
neurological conditions which prevents the normal exercise of any bodily or
mental functions or is demonstrable, medically or psychologically, by accepted clinical
or laboratory diagnostic techniques.
[Continue with full charge]
A person acts purposely with respect
to the nature of his/her
conduct or a result of his/her
conduct if it is the person’s 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 the person is aware of the existence of such circumstances or
believes or hopes that they exist. “With purpose,” “designed,” “with design,” or equivalent terms
have the same meaning.
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 if he/she
is aware of a high probability of their existence. A person acts knowingly with
respect to the 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.
Purpose
and knowledge refer to conditions of the mind. They cannot be seen. Often, they
can be determined only by inferences from conduct, words or acts. It is not
necessary, for the State to prove the existence of such a mental state by
direct evidence such as a statement by the defendant that he/she
had a particular purpose or that he/she
acted with knowledge when he/she
had dominion and control over a particular thing. It is within your power to
find that proof of a state of mind has been furnished beyond a reasonable doubt
by inferences which may arise from the nature of the acts and the surrounding
circumstances. The defendant’s conduct and everything done or said by him/her preceding, connected with, and immediately succeeding the
alleged acts are among the circumstances to be considered.
[Choose appropriate sections]
The fifth element the State must
prove beyond a reasonable doubt is that the defendant subjected [the victim(s)]
to [choose appropriate:] [unlawful arrest] or [detention,] including but not limited
to [choose appropriate categories:] [motor vehicle investigative stops,]
[search,] [seizure,] [dispossession,] [assessment,] [lien] or [other
infringement of personal or property rights].
[or]
The fifth element the State must
prove beyond a reasonable doubt is that the defendant denied or impeded [the
victim(s)] in the lawful exercise or enjoyment of any [choose appropriate:] [right,]
[privilege,] [power] or [immunity].
[Charge in all cases]
Here the State alleges _______.
[Charge if the defendant requests:] The defendant counters as follows:
__________.
[Charge
where appropriate]
Proof that a public servant made
[choose appropriate:]
i) a
false statement,
ii) prepared
a false report,
iii) or, if the agency that employs the public
servant, the Attorney General or
the
county prosecutor having supervisory authority over the agency required a
report to be prepared, failed to prepare a report concerning the conduct that
is the subject of the prosecution,
An inference is a deduction of fact
which may be drawn logically and reasonably from another fact or group of facts
established by the evidence. Whether or not the inference relating to [the
defendant’s] state of mind should be drawn is for you to decide, using your own
common sense, knowledge and everyday experience, after you consider whether it
is probable, logical, and reasonable to draw such an inference. As judges of the
facts, you decide whether the facts and circumstances reflected in the evidence
support any inference. You are always free to draw, or to reject, any inference.
If you decide to draw this
particular inference as to the purpose of (the defendant), weigh it in
connection with all other evidence that you have seen and heard. Drawing an inference does not reduce or lessen
the burden of proof imposed upon the State. The State must prove each element
of each offense beyond a reasonable doubt.
[Charge in all cases]
If you find that the State has
failed to prove any of these elements beyond a reasonable doubt, then you must
find the defendant not guilty. If, however, you find that the State has proven
each and every one of these elements beyond a reasonable doubt, then you must
find the defendant guilty.
[If the State charges a crime of the second degree, charge the following]
[N.J.S.A. 2C:30-6b(2) - second degree]
Furthermore, if you find that the
State has proven the defendant guilty of the Crime of Official Deprivation of Civil
Rights, you must then consider if bodily injury resulted from depriving a
person of a right or privilege in violation of this section. A section of the statutes provides that the Crime
of Official Deprivation of Civil Rights is a crime of the third degree. However, if the State proves two additional
elements beyond a reasonable doubt then the crime is one of second degree.
First, the State must prove beyond a
reasonable doubt that the victim suffered bodily injury.
Second, the State must prove beyond
a reasonable doubt that the bodily injury suffered by the victim resulted from
depriving the victim of a right or a privilege.[9]
If the State has proven each of
these two additional elements of this crime beyond a reasonable doubt, then you
must find the defendant guilty of the second-degree Crime of Official Deprivation
of Civil Rights. If, on the other hand, the State has failed to prove either of
these two additional elements beyond a reasonable doubt, then you must find the
defendant not guilty of the second-degree Crime of Official Deprivation of Civil
Rights but guilty of third-degree Official Deprivation of Civil Rights.
[Or]
[If the State charges a crime of the first-degree, charge the following]
[N.J.S.A. 2C:30-6c - First Degree]
Furthermore, if you find that the
State has proven the defendant guilty of the Crime of Official Deprivation of Civil
Rights, you must then consider if, during the course of violating the
provisions of this section, a public servant committed or attempted or
conspired to commit [choose appropriate:] murder, manslaughter, kidnapping or
aggravated sexual assault against a person who is being deprived of a right or
privilege in violation of this section. A
section of the statutes provides that the Crime of Official Deprivation of Civil
Rights is a crime of the third degree. However,
if the State proves two additional elements beyond a reasonable doubt then the
crime is one of the first degree.
First, the State must prove beyond a
reasonable doubt that the defendant committed or attempted[10]
to commit or conspired[11]
to commit [choose appropriate[12]:]
murder, manslaughter, kidnapping or aggravated sexual assault.
Second, the State must prove beyond
a reasonable doubt that the defendant committed this act or attempted it or
conspired to commit it during the course of violating the provisions of the Crime
of Official Deprivation of Civil Rights.[13]
If you find that the State has
proven each of these two additional elements beyond a reasonable doubt, then
you must find the defendant guilty of the first-degree Crime of Official Deprivation
of Civil Rights. If, on the other hand, you find that the State has failed to
prove either of these two additional elements beyond a reasonable doubt, then
you must find the defendant not guilty of the first-degree Crime of Official Deprivation
of Civil Rights but guilty of third-degree Official Deprivation of Civil Rights.
[2] N.J.S.A.
2C:30-6e.
[3] The
Committee notes that gender identity or expression means having or being
perceived as having a gender related identity or expression whether or not
stereotypically associated with a person’s assigned sex at birth. See N.J.S.A.
2C:16-1g.
[4] The
term ‘disability’ has replaced the term ‘handicap.’ See N.J.S.A.
2C:16-1a (the bias intimidation charge specifically defines disability); State
v. Dixon, 396 N.J. Super. 329, 338-40 (App. Div. 2007)(‘disability’
has replaced the term ‘handicap’).
[5] See
N.J.S.A. 2C:2-3d.
[6] State
v. Dixon, 396 N.J. Super. at 339. See note 4, supra. See also N.J.S.A. 10:5-5q.
[8] N.J.S.A.
2C:11-1(a).
[9] If
causation is an issue, charge pursuant to N.J.S.A. 2C:2-3.
[10] See
N.J.S.A. 2C:5-1a.
[11] See
N.J.S.A. 2C:5-2.
[12] Charge
appropriate predicate crime as alleged in the indictment.
[13] If
causation is an issue, charge pursuant to N.J.S.A. 2C:2-3.