INSTRUCTIONS
AFTER JURY IS SWORN Model Jury charge NJ Criminal cases
Ladies
and Gentlemen of the jury, you have been selected as the jury in this
case. As you know this is a criminal
case, and to assist you in better understanding your functions and duties, I
will tell you how the case will proceed.
You
are the sole judges of the facts. Your
determination of the facts is to be based solely upon the evidence submitted
during the course of the trial. When I
use the term "evidence" I mean the testimony of witnesses who will
testify, and any exhibits which may be marked into evidence and which will be
taken into the jury room for your review at the end of the case.
The
first order of business will be the prosecutor's opening statement. In the opening statement the prosecutor will
present the State's contentions and will outline what he/she expects to
prove. Following that, the defense
counsel, if he/she chooses, will make an opening statement. [OR,
WHERE APPLICABLE: Defense counsel has chosen not to make an opening
statement which is his/her right and no adverse inference should be drawn.]
What
is said in an opening statement is not evidence. The evidence will come from the witnesses who
will testify and from whatever documents or tangible items that are received in
evidence.
During
the trial the attorneys may make objections as evidence is offered or they may
address motions to me. They have a right
and, indeed, a duty to make objections and motions when it seems to them to be
proper to do so. I have a duty to rule
upon any objections and motions based upon the law.
If
you hear me say that an objection is overruled that means I am ruling against
the attorney making the objection. If I
say the objection is sustained I am ruling in favor of the attorney making the
objection. Anything excluded by me is
not evidence and must not be considered by you in your deliberations. Sometimes these evidence questions or legal
questions will be heard in your presence in open court, other times at a
sidebar, or you may be excused and go into the jury room so that we can discuss
the issue in open court. I realize that
being confined in the jury room for any length of time is not very pleasant,
but I ask your indulgence and patience.
I am sure that you realize that these legal arguments must be heard outside
of your presence.
You
should not conclude that because I rule one way or another that I have any
feelings about the outcome of the case.
I do not; but even if I did, you would have to disregard them since you
will be the sole judges of the facts.
During
the trial from time to time there shall be recesses. During any of those recesses I direct you not
to discuss the case among yourselves, and when we recess overnight, you must
not discuss the case or the testimony with any members of your family or any
other persons or provide an account of your juror service to others, including
through any electronic means, such as shared Internet websites.[1] Thus, for example, do not talk face to
face or use any electronic device, such as the telephone, cell or smart phone,
Blackberry, iPhone, PDA, computer, the Internet, e-mail, any text or instant
message service, any Internet chat room, blog or website such as Facebook,
MYSpace, YouTube, or Twitter, to communicate to anyone any information about
this case. The reason of course is that you should not begin any deliberations
until the entire case has been concluded, i.e., until you have heard all of the
witnesses, the final arguments of counsel, and my instructions as to the
law. It would be improper for any outside
influence to intrude upon your thinking.
If anyone should attempt to discuss the case with you, you should report
the fact to me or my staff immediately.
If
you have a cell phone, pager, or any device that is capable of providing Internet access and
any device that may be used to record or transmit sound or images, whether
video images or still images, you must turn that device off while in the
courtroom. Similarly, you must turn off
these communication devices and cannot use them for any purpose while in the
jury deliberation room. You will be
given a telephone number at which you can be contacted during the trial. Unless
I otherwise instruct, you may only use these communication devices when you are
outside the jury deliberation room during recesses. Please be mindful of these instructions at all
times.
During
jury selection, you were asked and responded to a series of questions from the
court and counsel. If, during the course
of trial, you realize that you may have made a misstatement or omission during
your responses, or if circumstances arise that could change or alter the
answers you gave, do not discuss the matter with your fellow jurors. Rather, you should tell the court officer,
who will notify me at once.[2]
During
the trial, you are not to speak to or associate with any of the attorneys, the
witnesses or the defendant, ____________________, nor are they permitted to
speak or associate with you. This
separation should not be regarded as rudeness but rather as a proper precaution
to ensure fairness to both sides. If
anyone connected with this case, or any other person approaches you or attempts
to influence you in any way, do not discuss it with the other jurors. Simply tell the sheriff's officer and I will
be notified immediately.
Your
deliberations must be based solely on the testimony and exhibits admitted into
evidence, without any outside influence or opinions of relatives or
friends. Additionally, do not read any
news stories or articles, in print, on the Internet, or in any blog about this
case. I do not know if there will be any
newspaper or other media coverage of this trial, but you are instructed to
completely avoid reading, viewing or listening to any newspaper or media
accounts or listening to anyone else discuss them.
Additionally,
I must instruct you not to read any newspaper articles, or search for, or
research information relating to the case, including any participants in the
trial, such as the parties, the witnesses, the lawyers, the judge or court
personnel through any means, including electronic means. This strict prohibition against outside
research or communication applies not only to printed reference materials, such
as dictionaries or encyclopedias, but also to the Internet and any other
electronic medium. You are not to seek
any additional information on the subject matter of this case, the laws in any
way related to this case, or any other factual or legal matter that has any
connection to this case. Do not visit or
view any place discussed in this case and do not use Internet maps or Google
Earth or any other program or device to search for or view any place discussed
in the testimony. I am sure that you can
understand why this instruction is so important. Information from other sources outside the
courtroom is not evidence, is often based upon second or third hand
information, is purely hearsay, is not always accurate and is not subject to
examination by the attorneys. A juror’s
improper use of outside technology threatens the very fairness of our system of
justice and could result in the court having to start the trial all over,
wasting the court’s, the parties’ and your valuable time and resources. In the event that such outside information
comes to your attention, it is important that you tell me or a member of my
staff so I can determine what further action is necessary to insure the
fairness of the trial.
The
court and the parties rely upon your good faith and the fact that you have been
sworn to comply with the instructions of the court so that both sides may
receive a fair trial. Because this
instruction is so important, it is my duty to remind you of it at the end of
each day's proceedings.
Since
you are the sole judges of the facts, you must pay close attention to the
testimony. It is important that you
carry with you to the jury room not only a clear recollection of what the
testimony was, but also a recollection of the manner in which it was
given. It will be your duty to pay
careful attention to all the testimony.
If you are unable to hear any witness, I ask that you indicate this to
me by raising your hand so that I may instruct the witness to speak louder
and/or more clearly. As jurors you will
be required to pass upon all the questions of fact including the credibility or
believability of the witnesses.
You
are not permitted to visit the scene of the alleged incident, do your own
research or otherwise conduct your own investigation. Your verdict must be based solely on the
evidence introduced in this courtroom.
Jurors
are not permitted to take notes.[3] Experience
has shown that note taking is distracting.
It is better to depend upon the combined recollections of all the jurors
than upon notes taken by one or more of them.
At
the conclusion of the testimony the attorneys will speak to you once again in
summation. At that time they will
present to you their final arguments based upon their respective recollections
of the evidence. Again, this is not
evidence but their recollection as to the evidence. It is your recollection as to the evidence presented
that is controlling.
Following
summations you will receive your final instructions on the law from me, and you
will then retire to consider your verdict.
You are not to form or express an opinion on this case but are to keep
an open mind until you have heard all the testimony, have heard summations,
have had the benefit of my instructions as to the applicable law, and have been
instructed to begin your deliberations.
It
is your duty to weigh the evidence calmly and without bias, passion, prejudice
or sympathy, and to decide the issues upon the merits.
You,
as jurors, should find your facts from the evidence adduced during the
trial. 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.
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.
It
is not necessary that facts be proved by direct evidence. They may be proved by direct evidence or
circumstantial evidence or by a combination of direct and circumstantial
evidence. Both direct and
circumstantial evidence are acceptable as a means of proof. Indeed, in many cases, circumstantial
evidence may be more certain, satisfying and persuasive than direct evidence.
In
any event, both circumstantial and direct evidence should be scrutinized and
evaluated carefully. A conviction 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.
Conversely,
if direct or circumstantial evidence gives rise to a reasonable doubt in your
minds as to the defendant's guilt then the defendant must be found not guilty.
A
simple illustration may be helpful. The following is one set of possible
illustrations:
Optional Illustrations:
The
problem is proving that it snowed during the night:
(a)
Direct Evidence: Testimony indicating that the witness
observed snow falling during the night.
(b)
Circumstantial Evidence: Testimony indicating that there was no snow
on
the
ground before the witness went to sleep, and that when he or she arose in the
morning, it was not snowing, but the ground was snow-covered.[4]
The
former directly goes to prove that fact that snow fell during the night; while
the latter establishes facts from which the inference that it snowed during the
night can be drawn.
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 testify; 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 their judgment, their 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 testifies; 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
statements; and any and all other matters in the evidence which serve to
support or discredit his or her testimony to you.
During
your deliberations, you may ask: what is more reasonable; the more probable or
the more logical version?
Inconsistencies
or discrepancies in the testimony of a witness, or between the testimony of
different witnesses, may or may not cause you to discredit such testimony. Two or more persons witnessing an incident
may see or hear it differently; an innocent misrecollection, like failure of
recollection, is not an uncommon experience in weighing the effect of a
discrepancy, consider whether it pertains to a matter of importance or an
unimportant detail, and, whether the discrepancy results from innocent error or
willful falsehood.
A witness or witnesses may testify in this
case with the assistance of a certified court interpreter. Even if you understand the language spoken by
the witness, you must accept the interpretation of the testimony and you must not
provide any translation of your own to the jurors. Every juror is bound by the translation
provided by the interpreter, whether or not the juror agrees or disagrees with
the interpretation, because every juror must consider the same evidence during
deliberations.
[In appropriate cases charge
"Testimony of Expert"]
(
_________________________ ) stands before you on an indictment found by the
Grand Jury charging (him/her) with committing the crime(s) of ____________________________.
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).
The
defendant on trial is presumed to be innocent and unless each and every
essential element of the offense(s) charged is (are) proved beyond a reasonable
doubt, the defendant must be found not guilty of that charge.
The
burden of proving each element of the charge(s) beyond a reasonable doubt rests
upon the State and that burden never shifts to the defendant. It is not the obligation or the duty of the
defendant in a criminal case 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.
You
will note that a jury of 14 has been drawn in this case. At the conclusion of all of the evidence and
the charge of the court, there will be a random selection in which 2 jurors
will be selected to act as alternates.
The 12 remaining jurors will then deliberate and return a verdict. At this point we don't know who the
alternates will be, and whether or not their services will be utilized. Thus, I direct that all jurors should pay
equal attention to the evidence as it is presented, and to the court's rulings
which are applicable to the case.
(OPENINGS)
[1] See
Assignment Judges memorandum, dated March 17, 2010, “Jurors’ Use Of Electronic
Devices During Juror Service - Revised Policy.”
[3] See R. 1:8-8(b), which
authorizes trial judges, at their discretion, to permit jurors to take notes.
[4] For cases
dealing with circumstantial evidence, see: State v. Corby, 28 N.J.
106 (1958); State v. Fiorello, 36 N.J. 80, 87-88 (1961), cert.
denied, 368 U.S. 967 (1962); State v. Ray, 43 N.J. 19,
30-31 (1964); State v. Mills, 51 N.J. 277, 287 (1968), cert.
denied, 393 U.S. 186 (1969); State v. Franklin, 52 N.J.
386, 406 (1968); State v. Mayberry, 52 N.J. 413, 436-37 (1968), cert.
denied, 393 U.S. 1043, (1969); State v. Graziani, 60 N.J.
Super. 1, 13-14 (App. Div. 1959), aff'd o.b., 31 N.J. 538 (1960), cert.
denied, 363 U.S. 830 (1960); State v. Hubbs, 70 N.J. Super.
322, 328-29 (App. Div. 1961); State v. Papitsas, 80 N.J. Super.
420, 424 (App. Div. 1963).