PUBLIC COMMUNICATION OF
OBSCENITY
(N.J.S.A. 2C:34‑4b) model jury charge
The defendant is charged with the
offense of public communication of obscenity.
The indictment reads in part as follows:
(Read
Indictment)
The pertinent part of the statute on
which this indictment is based reads as follows:
(Use that portion that applies to
your case)
(A) A person who knowingly publicly
communicates obscene material . . . is guilty of a crime . . .
or
(B) A person who knowingly causes or permits
obscene material to be publicly communicated on property he owns or (leases) or
(operates) is guilty of a crime . . .
In order for you to find the
defendant guilty of this offense, the State must prove beyond a reasonable
doubt each of the following elements:
(Elements as to A)
1. That
(exhibit) is obscene material;
2. That
the obscene material was communicated publicly by the defendant;
3. That
the defendant made that communication knowingly.
That is, he/she either had knowledge of the character and
content of the material (or film) described in the indictment, or he/she failed to exercise reasonable inspection
which would disclose its character and content.
(Elements as to B)
1. That
(exhibit) is obscene material;
2. That
the obscene material was communicated publicly on property that the defendant
owns (leases) (operates);
3. That
the defendant either caused or permitted another person to publicly communicate
that obscene material;
4. That
the defendant did that knowingly, that is, he/she either had knowledge of the character
content of the material (film), or he/she failed to exercise reasonable inspection
which would disclose its character and content.
Under our law you may infer that the
defendant made the communication knowingly or caused or permitted it to be made
knowingly if you find beyond a reasonable doubt that he/she publicly communicated obscene material.
However, you are not required to
make this inference. It is the exclusive
province of the jury to determine whether the facts and circumstances shown by
the evidence in this case warrant any inference which the law permits the jury
to draw.
(Use
when applicable)
In considering whether or not to
draw the inference, you are reminded that in the exercise of his/her
constitutional rights the accused need not take the witness stand and testify.
Public communication of obscene
material raises a permissible inference only that the defendant acted
knowingly. It does not raise a mandatory
inference. That is, you may accept or
reject such inference after considering all the other evidence in the
case. If you accept the inference, you
should weigh it in connection with all the other evidence, keeping in mind that
the burden of proof is upon the State to prove guilt beyond a reasonable
doubt. The permissible inference to
which I have referred does not shift that burden of proof.
"Obscene material" is
defined as any description, narrative account, display, or depiction of a
specified anatomical area or specified sexual activity contained in, or
consisting of, a picture or other representation, publication, sound recording,
live performance or film, which by means of posing, composition, format or
animated sensual details, emits sensuality with sufficient impact to
concentrate prurient interest on the area or activity.
"Specified anatomical
area" is defined as:
(1) Less
than completely and opaquely covered human genitalia, pubic region, buttock or
female breasts below a point immediately above the top of the areola; or
(2) Human
male genitals in a discernible turgid state; even if covered.
"Specified
sexual activity" is defined as:
(1) Human
genitals in a state of sexual stimulation or arousal; or
(2) Any
act of human masturbation, sexual intercourse or deviant sexual intercourse; or
(3) Fondling
or other erotic touching of covered or uncovered human genitals, pubic region,
buttock or female breast.
"Publicly communicate" is
defined as to display, post, exhibit, give away or vocalize material in such a
way that its character and content may be readily and distinctly perceived by
the public by normal unaided vision or hearing when viewing or hearing it in,
on, or from a public streets road, thoroughfare, recreation or shopping center
or area or public transportation facility or vehicle used for public
transportation.
If you find that the State has
proved all of the foregoing elements of the offense beyond a reasonable doubt,
you should find the defendant guilty. If
the State has failed to prove any of the elements of the offense beyond a
reasonable doubt, you must find the defendant not guilty.