PROOF OF OTHER CRIMES, WRONGS, OR ACTS[1]
(N.J.R.E. 404(b))
The
State has introduced evidence that the defendant
[OR]
[Describe the evidence of other crimes,
wrongs, or acts[2]
offered by the State.]
Normally,
such evidence is not permitted under our rules of evidence. Our rules
specifically exclude evidence that a defendant has committed other crimes,
wrongs, or acts when it is offered only to show that he/she has a disposition or tendency to do wrong and therefore must be guilty
of the charged offenses. Before you can give any weight to this evidence, you
must be satisfied that the defendant committed the other [crime, wrong, or
act]. If you are not so satisfied, you
may not consider it for any purpose.[3]
However,
our rules do permit evidence of other crimes, wrongs, or acts when the evidence
is used for certain specific, narrow purposes.[4]
(CHARGE IN ALL CASES)
In this case, [Describe the
limited purpose, relevant to a genuine, disputed issue, for which the evidence
has been introduced, and explain specifically how that limited purpose relates
to the facts of the case.][5]
(CHARGE IN APPROPRIATE CASE)
[Where the limited purpose for which the evidence is
offered is to prove identity,
charge if applicable:
Here, the evidence has been offered to attempt to
convince you that [the prior crime] and [the charged crime] are so similar and
so unique that you may infer that the same person committed both of them. You
may not draw this inference unless you conclude that the prior criminal
activity with which defendant is identified is so nearly identical in method as
to earmark the crime as defendant’s handiwork. The conduct in question must be
unusual and distinctive so as to be like a signature, and there must be proof
of sufficient facts in both crimes to establish an unusual pattern.][6]
(CHARGE IN APPROPRIATE CASE)
[Where the
limited purpose for which the evidence is offered is to prove consciousness of
guilt related to post-crime conduct, charge if applicable:
Here the evidence has been offered to attempt to
convince you that [describe the alleged post-crime conduct] is evidence of a
consciousness of guilt on the defendant’s part regarding the [particular
crime(s) at issue]. You may not draw this inference unless you conclude that
the acts alleged were an attempt by the defendant to cover up the crime(s)
being alleged][7]
(CHARGE IN ALL CASES)
Whether
this evidence does in fact demonstrate [state the specific purpose for which
the State offers it] is for you to decide. You may decide that the evidence does not
demonstrate [state the purpose] and is not helpful to you at all. In that case, you must disregard the evidence.
On the other hand, you may decide that the evidence does demonstrate [state
the purpose] and use it for that specific purpose.[8]
However,
you may not use this evidence to decide that the defendant has a tendency to
commit crimes or that he/she is a bad person. That is, you may
not decide that, just because the defendant has committed other crimes, wrongs,
or acts, he/she must be guilty of the present crime[s]. I have admitted the evidence only to help you
decide the specific question of [describe specific purpose]. You may not consider it for any other purpose
and may not find the defendant guilty now simply because the State has offered
evidence that he/she committed other crimes, wrongs, or acts.
[1] The court must instruct the jury on
the limited purpose of this evidence both at the time of its admission and in
the final charge. See State v. Williams, 190 N.J. 114,
133-134 (2007); State v. Angoy, 329 N.J.Super. 79 (App. Div.
2000).
[2] The exclusionary scope of N.J.R.E.
404(b) is broader than that of former Evid. R. 55 and extends to
bad acts. State v. Nance, 148 N.J. 376, 386 (1997).
[3] See State v. Wilson, 158
N.J. Super. 1, 10 (App. Div. 1978) (it is for the jury to determine
whether they accept the evidence of the uncharged offenses).
[4] See State v. Marrero,
148 N.J. 469, 495-96 (1997); State v. G.S., 145 N.J. 460,
468 (1996); State v. Cusick, 219 N.J. Super. 452, 466-67 (App.
Div. 1987) (cited in State v. Oliver, 133 N.J. 141, 158 (1993)).
[5] It is not enough for the trial judge
to tell the jurors that they may not use the evidence to infer propensity and
that they may only consider it for the limited purpose of proving some other
fact in issue. The judge must instruct the jurors on the specific, limited
purpose, relevant to a genuine, disputed issue, for which they may consider the
evidence. N.J.R.E. 404(b); State v. Oliver, 133 N.J. 141,
153, 156-58 (1993); State v. Cofield, 127 N.J. 328, 340-42
(1992); State v. Stevens, 115 N.J. 289, 301 (1989). Furthermore, the judge must do more than
state the general exception to the rule against other crimes invoked by the
State. Instead, he or she must relate the abstract exception to the specific
facts of the case. Oliver, 133 N.J.
at 158-59; Cofield, 127 N.J. at 341; Stevens, 115 N.J. at 304.
[6] State v. Fortin, 162 N.J.
517, 532 (2000) (quoting State v. Reldan, 185 N.J. Super. 494,
502 (App. Div. 1982)).
[7] State v. Williams, 190 N.J.
114, 134 (2007). Note that a limiting instruction should be made at the time of
the introduction of the evidence.
