GENERAL INFORMATION
Ladies
and Gentlemen of the Jury, the evidence in this case has been presented and the
attorneys have completed their summations.
We now arrive at that time when you, as jurors, are to perform your
final function in this case.
At the
outset, let me express my thanks and appreciation to you for your attention to
this case. I would like to commend counsel for the professional manner in which
they have presented their respective cases and for their courtesy to the court
and jury during the course of this trial.
Before
you retire to deliberate and reach your verdict, it is my obligation to
instruct you as to the principles of law applicable to this case. You shall consider my instructions in their
entirety and not pick out any particular instruction and overemphasize it.
Generally speaking, these instructions consist of four parts. The first part deals with the general principles
of law that apply to a criminal case.
The second part describes the evidence that you may consider in your
deliberations. The third part is about
the portions of the Criminal Code of New Jersey that you must apply to the
facts you find in this case to determine whether the State has proven beyond a
reasonable doubt that the defendant violated a specific criminal statute. Finally, the fourth part of the instructions
tells you how to go about conducting your deliberations.
You must
accept and apply this law for this case as I give it to you in this
charge. Any ideas you have of what the
law is or what the law should be or any statements by the attorneys as to what
the law may be, must be disregarded by you, if they are in conflict with my
charge.
NATURE OF INDICTMENT
Now,
beginning with the general principles of law that apply to a criminal case, the
defendant(s) stand(s) before you on an indictment returned by the grand jury
charging him/her with [Insert
Counts of Indictment for the jury to consider]:
The
indictment is not evidence of the defendant's guilt on the charge(s). An indictment is a step in the procedure to
bring the matter before the court and jury for the jury's ultimate
determination as to whether the defendant is guilty or not guilty on the
charge(s) stated in it.
The
defendant has pleaded not guilty to the charge(s).
PRESUMPTION OF INNOCENCE,
BURDEN OF PROOF, REASONABLE DOUBT
The
defendant on trial is presumed to be innocent and unless each and every
essential element of an offense charged is proved beyond a reasonable doubt,
the defendant must be found not guilty of that charge.
The
burden of proving each element of a charge beyond a reasonable doubt rests upon
the State and that burden never shifts to the defendant. The defendant in a criminal case has no
obligation or duty to prove his/her innocence or offer any proof relating to his/her innocence.
The
prosecution must prove its case by more than a mere preponderance of the
evidence, yet not necessarily to an absolute certainty.
The State
has the burden of proving the defendant guilty beyond a reasonable doubt. Some
of you may have served as jurors in civil cases, where you were told that it is
necessary to prove only that a fact is more likely true than not true. In criminal cases, the State’s proof must be
more powerful than that. It must be
beyond a reasonable doubt.
A
reasonable doubt is an honest and reasonable uncertainty in your minds about
the guilt of the defendant after you have given full and impartial
consideration to all of the evidence. A
reasonable doubt may arise from the evidence itself or from a lack of
evidence. It is a doubt that a
reasonable person hearing the same evidence would have.
Proof
beyond a reasonable doubt is proof, for example, that leaves you firmly
convinced of the defendant's guilt. In
this world, we know very few things with absolute certainty. In criminal cases the law does not require
proof that overcomes every possible doubt.
If, based on your consideration of the evidence, you are firmly
convinced that the defendant is guilty of the crime charged, you must find him/her
guilty. If, on the other hand, you are
not firmly convinced of defendant's guilt, you must give defendant the benefit
of the doubt and find him/her not
guilty.
FUNCTION OF THE COURT
The
function of the judge is separate and distinct from the function of the
jury. It is my responsibility to
determine all questions of law arising during trial and to instruct the jury as
to the law which applies in this case.
You must accept the law as given to you by me and apply it to the facts
as you find them to be.
During
the course of the trial, I was required to make certain rulings on the
admissibility of the evidence either in or outside of your presence. These rulings involved questions of law. The comments of the attorneys on these
matters were not evidence. In ruling, I
have decided questions of law and, whatever the ruling may have been in any particular
instance, you should understand that it was not an expression or opinion by me
on the merits of the case. Neither
should my other rulings on any other aspect of the trial be taken as favoring
one side or the other. Each matter was
decided on its own merits.
I may have
sustained an objection(s) to some questions asked by counsel which may have
contained statements of certain facts.
The mere fact that an attorney asks a question and inserts facts or
comments or opinions in that question in no way proves the existence of those
facts. You will only consider such facts
which in your judgment have been proven by the testimony of witnesses or from
exhibits admitted into evidence by the court.
JUDGE'S QUESTIONING
The fact
that I may have asked questions of a witness in the case must not influence you
in any way in your deliberations. The
fact that I asked such questions does not indicate that I hold any opinion one
way or the other as to the testimony given by the witness. Any remarks made by me to counsel or by
counsel to me or between counsel, are not evidence and should not affect or
play any part in your deliberations.
FUNCTION OF THE JURY
As I
instructed you when we started the case, I explained to you that you are the
judges of the facts and, as judges of the facts, you are to determine the
credibility of the various witnesses as well as the weight to be attached to
their testimony. You and you alone are
the sole and exclusive judges of the evidence, of the credibility of the
witnesses and the weight to be attached to the testimony of each witness.
Regardless
of what counsel said or I may have said recalling the evidence in this case, it
is your recollection of the evidence that should guide you as judges of
the facts. Arguments, statements,
remarks, openings and summations of counsel are not evidence and must not be
treated as evidence. Although the
attorneys may point out what they think important in this case, you must rely
solely upon your understanding and recollection of the evidence that was
admitted during the trial. Whether or
not the defendant has been proven guilty beyond a reasonable doubt is for you
to determine based on all the evidence presented during the trial. Any comments by counsel are not controlling.
It is
your sworn duty to arrive at a just conclusion after considering all the
evidence which was presented during the course of the trial.
Now I
will move on to the second part of the instructions and discuss the evidence
that you may consider in judging the facts of the case. When I use the term “evidence” I mean the testimony you have heard and seen from this
witness box, any stipulations and the exhibits that have been admitted into
evidence. Any exhibit that has not been
admitted into evidence cannot be given to you in the jury room even though it
may have been marked for identification.
Only those items admitted into evidence can be given to you.
Any
testimony that I may have had occasion to strike is not evidence and shall not
enter in your final deliberations. It
must be disregarded by you. This means
that even though you may remember the testimony you are not to use it in your
discussions or deliberations. Further,
if I gave a limiting instruction as to how to use certain evidence, that
evidence must be considered by you for that purpose only. You cannot use it for any other purpose.
As
jurors, it is your duty to weigh the evidence calmly and without passion,
prejudice or sympathy. Any influence
caused by these emotions has the potential to deprive both the State and the
defendant(s) of what you promised them - a fair and impartial trial by fair and
impartial jurors. Also, speculation,
conjecture and other forms of guessing play no role in the performance of your
duty.
DIRECT AND CIRCUMSTANTIAL
EVIDENCE
As I instructed you at the beginning
of the case, evidence may be either direct or circumstantial. Direct evidence means evidence that directly
proves a fact, without an inference, and which in itself, if true, conclusively
establishes that fact. On the other
hand, circumstantial evidence means evidence that proves a fact from which an
inference of the existence of another fact may be drawn.[1]
An inference is a deduction of fact that may
logically and reasonably be drawn from another fact or group of facts
established by the evidence. Whether or
not inferences should be drawn is for you to decide using your own common
sense, knowledge and every day experience.
Ask yourselves is it probable, logical and reasonable.
It is not
necessary that all the facts be proven by direct evidence. They may be proven by direct evidence, circumstantial
evidence or by a combination of direct and circumstantial evidence. All are acceptable as a means of proof. In many
cases, circumstantial evidence may be more certain, satisfying and persuasive
than direct evidence.
However,
direct and circumstantial evidence should be scrutinized and evaluated
carefully. A verdict of guilty may be
based on direct evidence alone, circumstantial evidence alone or a combination
of direct evidence and circumstantial evidence provided, of course, that it
convinces you of a defendant's guilt beyond a reasonable doubt. The reverse is also true, a defendant may be
found not guilty by reason of direct evidence, circumstantial evidence, a
combination of the two or a lack of evidence if it raises in your mind a reasonable
doubt as to the defendant's guilt.
CREDIBILITY OF WITNESSES
As the judges of the facts,
you are to determine the credibility of the witnesses and, in determining
whether a witness is worthy of belief and therefore credible, you may take into
consideration:
the appearance and demeanor of the
witness;
the manner in which he or she may
have testified;
the witness' interest in the outcome
of the trial if any;
his or her means of obtaining
knowledge of the facts;
the witness' power of discernment
meaning his or her judgment - understanding;
his or her ability to reason,
observe, recollect and relate;
the possible bias, if any, in favor
of the side for whom the witness testified;
the
extent to which, if at all, each witness is either corroborated or contradicted,
supported or discredited by other evidence;
whether the witness testified with
an intent to deceive you;
the reasonableness or
unreasonableness of the testimony the witness has given;
whether the witness made any
inconsistent or contradictory statement;
and any
and all other matters in the evidence which serve to support or discredit his
or her testimony.
Through
this analysis, as the judges of the facts, you weigh the testimony of each
witness and then determine the weight to give to it. Through that process you may accept all of
it, a portion of it or none of it.
(CHARGE, IF APPLICABLE MODEL CHARGE(S) (ATTACHED)
ON: ALIBI, DEFENDANT'S
ELECTION NOT TO TESTIFY, CREDIBILITY-PRIOR CONVICTION OF A DEFENDANT, CREDIBILITY-
PRIOR CONVICTION OF A WITNESS, CREDIBILITY OF WITNESS-PRIOR ADJUDICATION OF
DELINQUENCY, EXPERT TESTIMONY, FALSE IN ONE-FALSE IN ALL, TESTIMONY OF
CHARACTER WITNESS, FINGERPRINTS, FLIGHT, IDENTIFICATION, IDENTITY-POLICE PHOTOS, PRIOR CONTRADICTORY STATEMENTS OF WITNESSES, STATEMENT BY DEFENDANT (WHERE ADMISSIBLE FOR
CREDIBILITY PURPOSES ONLY), STATEMENTS OF DEFENDANT, WITNESS IMMUNITY, WITNESS -
TESTIFYING WHILE WEARING RESTRAINTS, WITNESS-TESTIFYING IN JAIL GARB OR PRISON
GARB, and DEFENDANT-TESTIFYING IN JAIL GARB OR PRISON GARB).[2]
Now, I
will instruct you on the third part of the instructions on the portions of the
Criminal Code that you must apply to the facts you find to determine whether
the State has proven beyond a reasonable doubt that the defendant violated a specific
criminal statute. The statute read
together with the indictment identifies the elements which the State must prove
beyond a reasonable doubt to establish the guilt of the defendant on each of
the counts in the indictment.
[CHARGE
IF APPLICABLE]
In
addition, you will have the opportunity to consider certain other offenses
besides those charged specifically in the indictment. These are what we call lesser offenses,
crimes or offenses of a lesser degree that are considered to be included within
the charges brought in the indictment. I
will give you instructions about how to consider these lesser offenses shortly.
[CHARGE
IF APPLICABLE]
MULTIPLE CHARGES
There are
_______________offenses charged in the indictment. They are separate offenses by separate counts
in the indictment. In your determination
of whether the State has proven the defendant guilty of the crimes charged in
the indictment beyond a reasonable doubt, the defendant is entitled to have
each count considered separately by the evidence which is relevant and material
to that particular charge based on the law as I will give it to you.
[CHARGE
IF APPLICABLE]
You must also return separate
verdicts for each defendant as to each of the charges being tried. In other words, you will have to decide each
case individually. Whether the verdicts
as to each defendant are the same depends on the evidence and your
determination as judges of the facts.
DELIBERATIONS
I will
now give you some information on the final part of these instructions on
conducting your deliberations.
There is
nothing different in the way a jury is to consider the proof in a criminal case
from that in which all reasonable persons treat any questions depending upon
evidence presented to them. You are expected to use your own good common sense;
consider the evidence for only those purposes for which it has been admitted
and give it a reasonable and fair construction in the light of your knowledge of
how people behave. It is the quality of
the evidence, not simply the number of witnesses that control.
As I said
before, any exhibit that has not been marked into evidence cannot be given to
you in the jury room even though it may have been marked for identification. Only those items marked in evidence can be
given to you.
Very
shortly you will go into the jury room to start your deliberations. I remind you that, during deliberations, and,
in fact, any time that you are in the jury deliberation room, you must keep any
cell phone, pager or other communication device you may possess turned off.
You are
to apply the law as I have instructed you to the facts as you find them to be,
for the purpose of arriving at a fair and correct verdict. The verdict must represent the considered
judgment of each juror and must be unanimous as to each charge. This means all of you must agree if the
defendant is guilty or not guilty on each charge.
It is
your duty, as jurors, to consult with one another and to deliberate with a view
to reaching an agreement, if you can do so without violence to individual
judgment. Each of you must decide the
case for yourself, but do so only after an impartial consideration of the
evidence with your fellow jurors. In the
course of your deliberations, do not hesitate to re-examine your own views and
change your opinion if convinced it is erroneous but do not surrender your
honest conviction as to the weight or effect of evidence solely because of the
opinion of your fellow jurors, or for the mere purpose of returning a
verdict. You are not partisans. You are judges--judges of the facts.
UNANIMOUS VERDICT
You may
return on each crime charged a verdict of either not guilty or guilty. Your verdict, whatever it may be as to each
crime charged, must be unanimous. Each
of the twelve members of the deliberating jury must agree as to the verdict.[5]
INSTRUCTIONS AS TO VERDICT
FORM
To assist
you in reporting a verdict I have prepared a verdict sheet for you. You will have this with you in the jury
room. This verdict form is not
evidence. This form is only to be used
to report your verdict.
[Go
Over Form With Jury]
JURY QUESTIONS
If,
during your deliberations, you have a question or feel that you need further
assistance or instructions from me, or wish to have certain testimony read or
played back (or video or audio exhibit played back), write your question or
request on a sheet of paper and give it to the sheriff's officer who will be
standing at the jury room door who, in turn, will give it to me. That court officer will be sworn to perform
certain duties, such as keeping the jury together in a private place for
purposes of deliberations, and ensuring that no one speaks with you except by
order of the court.
You are
not to discuss with or ask the officer about trial matters or procedures. Please be aware that the officer is also
instructed not to initiate communications with you, or to enter the
deliberation room without your consent, except to communicate on my behalf
regarding administrative matters, such as information about breaks or meals, or
otherwise to ensure your comfort. If the
officer must enter the deliberation room, the officer will knock first and
complete the officer’s responsibilities without delay. When the officer enters the room, please stop
your deliberations and do not resume until the officer has left and closed the
door.
Once I
receive your question or request, I will go over it with the lawyers and will
try to answer it as quickly as possible.
Please be patient. If you do send
out a question do not disclose where you stand on your deliberations. Do not tell us, as an example, that
you are 10 to 2 or 8 to 4 on a given charge.
If you have reached a unanimous verdict on each charge, knock on the
door and let the officer know that and we will bring you into court as soon as
possible to receive your verdict.
I have come to the end of my charge.
[Do sidebar to give counsel opportunity to note
objections on the record or excuse jury for that purpose]
[Recharge
if Necessary]
[1] The court may make reference to the example given to the
jury previously in the “Instructions After Jury is Sworn” model charge.
[3] When
accomplice liability is involved charge according to State v. Bielkiewicz,
267 N.J. Super. 520 (App. Div. 1993).
[4]
This bracketed text should be deleted
from the final draft of the charge to be given to the jury.
[5] See State v. Milton,
178 N.J. 421 (2004), setting forth the process to be used in determining
the unanimity of the verdict. In some cases, a specific unanimity
instruction is appropriate. See State v. Parker, 124 N.J.
628 (1991) and State v. Frisby, 174 N.J. 583 (2002). In those cases, a judge should instruct a
jury that it must be unanimous as to a particular theory of a case or as to a
particular set of facts. The Judge must also provide the jury a special verdict
form in such cases.
