RECANTING WITNESS (SUBSTANTIVE) Model Jury charge NJ Criminal cases
[NOTE: Use this charge only where the party
calling a witness offers the witness's prior inconsistent statement as
substantive evidence.]
Evidence
has been presented showing that at a prior time [declarant-witness's name] has
said something or has failed to say something which is inconsistent with the
witness's testimony at the trial.[1]
[CHARGE ONLY THE FOLLOWING PARAGRAPH
FOR PRIOR
STATEMENTS MADE UNDER OATH]
You
may consider this evidence along with all the other evidence in the case.
[CHARGE THE REMAINING PARAGRAPHS FOR
PRIOR STATEMENTS
MADE IN WRITING OR SOUND RECORDING]
In
deciding whether any such statement, if made, is credible you should consider
any relevant factors, including:[2]
[CHARGE WHICHEVER FACTORS APPLY:]
1. [Name
of declarant-witness's] connection to and interest in the matter reported in
his/her prior statement;
2. The
person or persons to whom he/she gave the statement;
3. The
place and occasion for giving the statement;
4. Whether
[name of declarant-witness] was then in custody or otherwise the target of
investigation;
5. The
physical and mental condition of [name of declarant-witness] at the time;
6. The
presence or absence of other persons;
7. Whether [name of declarant-witness] incriminated
himself/herself or sought to exculpate himself/herself by the statement;
8. Whether
the writing is in [name of declarant-witness]'s hand;
9. The
presence or absence, and the nature of, any interrogation;
10. Whether
the [sound recording] [writing] contains all, or only a portion or summary, of
what [name of declarant-witness] said;
11. The
presence or absence of any motive to fabricate;
12. The
presence or absence of any explicit or implicit pressures, inducement, or
coercion for making the statement;
13. Whether
the use to which the authorities would put the statement was apparent or made
known to [name of declarant-witness];
14. The
inherent believability or lack of believability of the statement;
15. The
presence or absence of corroborating evidence.
[CHARGE THE FOLLOWING PARAGRAPH IF
APPLICABLE:]
I
further instruct you that a witness's prior inconsistent statement under police
interrogation must be carefully examined and assessed in light of all the
surrounding circumstances, including his/her interest in giving the statement
at that time.[3]
If
you decide that the statement is reliable, then you may consider it for its
truth and weigh it along with all the other evidence in the case. However, if you decide that the statement is
not reliable, then you may not consider it for any purpose.
[1] The Court should determine whether the
recanting witness's prior inconsistent statement satisfies the "special
reliability" requirements of N.J.R.E.
803a(1) (A) at a Rule 104 hearing before receiving it in evidence, but
should not inform the jury that is has previously found the statement to be
reliable. State v. A. Gross, 121 N.J.
1, 15-17 (1990).