STATEMENT BY DEFENDANT (WHERE ADMISSIBLE
We have in this case an oral/written
statement (MARKED EXHIBIT )
alleged to have been made by the defendant.
This statement has been introduced
by the prosecution not as evidence of defendant's guilt of the
crime charged, but to affect his/her credibility on condition that the jury first determine that the
statement was made.
(HERE
DISCUSS THE STATEMENT)
So you can see ladies and gentlemen
of the jury, prior to your considering this statement for the limited purposes
of affecting the defendant's credibility as a witness, you must determine whether
the statement was actually given. In
considering whether or not the statement was made by the defendant you may take
into consideration the circumstances and facts surrounding the giving of the
statement.
(HERE
DISCUSS FACTS AND CIRCUMSTANCES SURROUNDING
THE
GIVING OF THE STATEMENT)
If you find that the statement was
not made then you must not consider it for any purpose. If you find that only
part of the statement was made then you may only consider that part as it may
affect defendant's credibility.
If you find that the statement was
made it may be considered solely to determine the defendant's credibility if
you believe it does, in fact, affect such credibility and not as
evidence of his/her guilt. In this regard in all
fairness you will want to consider all of the circumstances under which the
claimed prior inconsistent statement occurred; the extent and importance or lack
of importance of the inconsistency on the overall testimony of
the defendant as bearing on his/her credibility, including such factors as where and when the prior
statement occurred and the reasons, if any, therefore.[2]
The extent to which defendant's
credibility is affected by such inconsistencies, if any, is for you to
determine. Consider the materiality and
relationship of such contradictions to the entire testimony and all the
evidence in the case.
[1] See Harris v. New York,
401 U.S. 222, 91 S.Ct. 643, 28 L. Ed. 2d 1 (1971); State
v. Kimbrough, 109 N.J. Super. 57 (App. Div. 1970); State v.
Hampton, 61 N.J. 250 (1972); State v. Miller, 67 N.J.
229 (1975); Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215,
43 L. Ed. 2d 570 (1975).
NOTES:
(1) State
v. Miller, 67 N.J. 229, 233 (1975) interpreting Harris, holds
that:
An
in-custody statement taken from an accused by the police without first
complying with the Miranda rule is not admissible in evidence as part of
the State's main case. However, if it
otherwise satisfies standards of admissibility, it may be used to impeach the
defendant's credibility as a witness should the defendant take the witness
stand and give testimony which is at variance with what was said in the
statement to the police. But the jury
should be instructed as to the limited consideration it may give to the
statement and its contents.
(2) See also Oregon v. Hass,
420 U.S. 714, 95 S.Ct. 1215, 43 L. Ed. 2d 570
(1975).
[2]
If voluntariness is an issue
charge accordingly. See Model
Criminal Charge on Statements of Defendant.
