Evidence has been presented showing
that at a prior time a witness has said something or has failed to say
something which is inconsistent with the witness' testimony at the trial. This evidence may be considered by you as
substantive evidence or proof of the truth of the prior contradictory statement
or omitted statement.
However, before deciding whether the
prior inconsistent or omitted statement reflects the truth, in all fairness you
will want to consider all of the circumstances under which the statement or
failure to disclose occurred. You may
consider the extent of the inconsistency or omission and the importance or lack
of importance of the inconsistency or omission on the overall testimony of the
witness as bearing on his or her credibility.
You may consider such factors as where and when the prior statement or
omission occurred and the reasons, if any, therefore.
[CHARGE
IF APPLICABLE]
In regard to the testimony of
(witness' names) on cross-examination inconsistencies were shown (admitted)
between the prior statements and those given on the stand [or: between the witness's prior silence and
statements on the stand.] The
witness(es) gave reasons therefor, saying that [many of] such prior statements
or omissions were untrue. Among the
reasons given that I recall, were (list reasons: self protection, exculpation, poor
recollection at the time, things recently remembered and not, therefore,
formerly disclosed, not believing a matter was important, etc.)
The
extent to which such inconsistencies or omissions reflect the truth is for you
to determine. Consider their materiality
and relationship to (his/her) entire testimony and all the evidence in the
case, when, where and the circumstances under which they were said or omitted
and whether the reasons (he/she) gave you therefor appear to be to you
believable and logical. In short,
consider all that I have told you before about prior inconsistent statements or
omissions.
You will, of course, consider other
evidence and inferences from other evidence including statements of other
witnesses or acts of the witness and others, disclosing other motives that the
witness may have had to testify as (he/she) did, that is, reasons other than
which (he/she) gave to us.
Perhaps, a hypothetical example will
help you to understand what constitutes a prior contradictory statement and,
more importantly, how it may be used by you.
Assume at the trial the witness testifies: "The car was red". In cross-examination of that witness, or at
some other point in the trial, it is shown that at an earlier time, the witness
testified or said: "The car was blue". You may consider the prior contradictory
statement that "The car was blue" as a factor in deciding whether or
not you believe that statement made at trial that "The car was
red". You may also consider the
earlier statement that "The car was blue" as proof of the fact or a
evidence that the car was blue.
[1] In
the case where the party calling a witness offers the witness's prior
inconsistent statement as substantive evidence see State v. Anthony
Gross, 121 N.J. 1, 15-17 (1990); State v. Frank Gross, 121 N.J.
18 (1990) and State v. Spruell, 121 N.J. 32 (1990).
