STATEMENTS OF DEFENDANT
(WHEN COURT FINDS POLICE INEXCUSABLY
FAILED TO ELECTRONICALLY
A. Charge
to be Given When State Offers Statement as Direct Evidence of Defendant’s Guilt[2]:
There is for your consideration in this
case a (written or oral) statement allegedly made by the defendant.
The State contends
that the defendant made the statement and that the information contained in it
is credible. [HERE STATE DEFENDANT’S
ASSERTIONS, IF ANY.]
It is your
function to determine (1) whether the statement was actually made, and (2)
whether it, or any portion of it, is credible.
To make that
decision, you should take into consideration the circumstances and facts as to
how the statement was made.
[HERE DISCUSS EVIDENCE ADDUCED BEFORE THE
JURY RELATING TO SUCH FACTS AND CIRCUMSTANCES WHICH MAY INCLUDE BUT NEED NOT BE
LIMITED TO RENDITION OF MIRANDA WARNINGS
AND WAIVER; TIME AND PLACE OF INTERROGATION; TREATMENT OF DEFENDANT BY LAW
ENFORCEMENT OFFICIALS; DEFENDANT’S MENTAL AND PHYSICAL CONDITION; AND WHETHER
THE STATEMENT IS DEEMED VOLUNTARY UNDER ALL OF THE FACTS AND CIRCUMSTANCES.]
Among the factors
you may consider in deciding whether or not the defendant actually gave the
alleged statement and if so, whether any or all of the statement is credible,
is the failure of law enforcement officials to make an electronic recording of
the interrogation conducted and the defendant’s alleged statement itself. Our Rules require the electronic recording
of interrogations by law enforcement officers when a defendant is charged with
[insert applicable offenses] so as to ensure that you will have before you a
complete picture of all circumstances under which an alleged statement of a
defendant was given, so that you may determine whether a statement was in fact
made and, if so, whether it was accurately reported by State’s witnesses and
whether it was made voluntarily or is otherwise reliable or trustworthy. Where there is a failure to electronically
record an interrogation, you have not been provided with a complete picture of
all of the facts surrounding the defendant’s alleged statement and the precise
details of that statement. By way of
example, you cannot hear the tone or inflection of the defendant’s or
interrogator’s voices, or hear first hand the interrogation, both questions and
responses, in its entirety. Instead you
have been presented with a summary based upon the recollections of law
enforcement personnel. Therefore, you
should weigh the evidence of the defendant’s alleged statement with great
caution and care as you determine whether or not the statement was in fact made
and if so, whether what was said was accurately reported by State’s witnesses,
and what weight, if any, it should be given in your deliberations. The absence of an electronic recording
permits but does not compel you to conclude that the State has failed to prove
that a statement was in fact given and if so, was accurately reported by
State’s witnesses.
[IF ORAL STATEMENT, CHARGE THE FOLLOWING
PARAGRAPH]
Furthermore, in
considering whether or not an oral statement was actually made by the
defendant, and if made, whether it is credible, you should receive, weigh, and
consider this evidence with caution as well, based on the generally recognized
risk of misunderstanding by the hearer, or the ability of the hearer to recall
accurately the words used by the defendant.
The specific words used and the ability to remember them are important
to the correct understanding of any oral communication because the presence, or
absence, or change of a single word may substantially change the true meaning
of even the shortest sentence.
If, after
consideration of all these factors, you determine that the statement was not
actually made, then you must disregard the statement completely.
If you find that the statement was made,
you may give it what weight you think appropriate.
B. Charge to be Given When Statement of
Defendant is Introduced by the State for the Purpose of Inferring the
Defendant’s Effort to Avoid Arrest and/or Prosecution Due to Consciousness of
Guilt:
There is for your
consideration in this case a (written or oral) statement allegedly made by the
defendant.
The State contends that the statement was
made by the defendant, that it was knowingly false when it was made, and that
you may draw inferences from this as to the defendant’s state of mind at that
time. [HERE STATE DEFENDANT’S POSITION, IF ANY.]
It is your
function to determine whether the statement was actually made. 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.]
Among the factors
you may consider in deciding whether or not the defendant actually gave the
alleged statement is the failure of law enforcement officials to make an
electronic recording of the interrogation conducted and the alleged statement
itself. Our Rules require the electronic
recording of interrogations by law enforcement officers when a defendant is
charged with [insert applicable offenses].
This is done to ensure that you will have before you a complete picture
of the circumstances under which an alleged statement of a defendant was given,
so that you may determine whether a statement was in fact made and/or was accurately
recorded. Where there is failure to
electronically record an interrogation, you have not been provided with a
complete picture of all the facts surrounding the defendant’s alleged statement
and the precise details of that statement.
By way of example, you cannot hear the tone or inflection of the
defendant’s or the interrogator’s voices, or hear first hand the interrogation,
both questions and responses, in its entirety.
Instead you have been presented with a summary based upon the
recollections of law enforcement personnel.
Therefore, you should weigh the evidence of the defendant’s alleged
statement with great caution and care as you determine whether or not the
statement was in fact made and if so whether it was accurately reported by
State’s witnesses, and what, if any, weight it should be given in your
deliberations. The absence of an
electronic recording permits but does not compel you to conclude that the State
has failed to prove that a statement was in fact given and if so, accurately
reported by State’s witnesses.
[IF ORAL STATEMENT—CHARGE THE FOLLOWING
PARAGRAPH]
Furthermore, in
considering whether or not an oral statement was actually made by the
defendant, and, if made, accurately reported by State’s witnesses, you should
receive, weigh, and consider this evidence with caution based on the generally
recognized risk of misunderstanding by the hearer, or the ability of the hearer
to recall accurately the words used by the defendant. The specific words used and the ability to
remember them are important to the correct understanding of any oral
communication because the presence, or absence, or change of a single word may
substantially change the true meaning of even the shortest sentence.
If after
consideration of all of the evidence you determine that the statement was not
made, then you should disregard it completely.
If you find that the statement was made, you must determine what
inferences you can draw from it and what weight, if any, to give to it.
[1] Rule 3:17-1, which mandates recordation of
defendants’ statements, becomes effective for all homicide offenses on January
1, 2006. It becomes effective for
kidnapping, robbery, aggravated sexual assault, sexual assault, aggravated
criminal sexual contact, criminal sexual contact, second degree aggravated
assault, aggravated arson, burglary, first or second degree crimes under
Chapter 35, any crime involving the possession or use of a firearm, and
conspiracies and attempts to commit any of these crimes, on January 1,
2007. Rule 3:17-1(a).
[2]
CAVEAT:
[IF THE STATE IS ALLEGING THAT PORTIONS OF THE STATEMENT ARE TRUE AND ARE
ADMISSIONS OF GUILT WHILE OTHERS ARE FALSE AND EVIDENCE DEFENDANT’S EFFORT TO
AVOID PROSECUTION AND/OR CONVICTION OR OTHERWISE EVIDENCE CONSCIOUSNESS OF
GUILT, IT MAY BE NECESSARY TO GIVE PORTIONS OF BOTH CHARGES (A) AND (B).]
