[NOTE: Use this charge only where the party
calling a witness is surprised by the inconsistent testimony and it is
inadmissible under N.J.R.E. 803a(1) (A).
See separate charge.]
Evidence
has been presented showing that at a prior time [declarant-witness's name] has
said something or has omitted to say something which is inconsistent with the
witness's testimony at the trial. More
specifically, [Describe prior statement].
You may consider this prior statement only for the limited purpose of
deciding whether to believe the portion of the witness's testimony which was
omitted or contradicted.[2] If after hearing the prior statement you
decide that the witness's testimony at trial is not credible, then you must
disregard that portion of the testimony at trial that is contradicted by the
prior statement. In no event may you
consider [declarant-witness's] prior statement as proving the truth of the
facts it contains.
[1] The Court should determine whether the
recanting witness's prior statement is contradictory to the present testimony,
whether proponent is surprised, and whether the testimony is harmful to the
proponent's case. Its findings, if
favorable to the proponent, should not be revealed to the jury. State v. Gallicchio, 44 N.J.
540, 547-48 (1965).
