TESTIMONY OF A COOPERATING CO-DEFENDANT OR WITNESS[1] Model Jury Charge Criminal NJ(When witness[2] is a co-defendant)
__________,
who was [charged with] [indicted for] the crime(s) that defendant is on trial
for, has testified on behalf of the State.
(When witness is a co-defendant and has
pleaded guilty prior to defendant's trial)
_________,
who was [charged with] [indicted for] the crime(s) that defendant is on trial
for, has pleaded guilty to (one/some of) those charges, namely ____________,
and has testified on behalf of the State. Evidence of ________'s plea of guilty may be
used only in determining the credibility or believability of the witness'
testimony. A jury has a right to
consider whether a person who has admitted that he/she failed to comply with
society's rules would be more likely to ignore the oath requiring truthfulness
on the witness stand than a person who has never been convicted or pleaded
guilty to a crime. You may consider such
evidence along with all the other factors that I mentioned previously in
determining the credibility of a witness.
However, you may not use ______'s plea of guilty as evidence that this
defendant is guilty of the crimes that he/she is charged with. [3]
OR
(When witness is not a co-defendant)
_________________,
a witness herein, has testified to facts which may show some involvement on his/her
part in CHOOSE AS APPROPRIATE: [the criminal situation out of which the
indictment and trial of the defendant arose] [another criminal matter].[4]
(In all
cases)
The law requires that the testimony of such a
witness be given careful scrutiny. In weighing his/her testimony, therefore,
you may consider whether he/she has a special interest in the outcome of the
case and whether his/her testimony was influenced by the hope or expectation of
any favorable treatment or reward, or by any feelings of revenge or reprisal.
If you believe this witness to be credible
and worthy of belief, you have a right to convict the defendant on his/her
testimony alone, provided, of course, that upon a consideration of the whole
case, you are satisfied beyond a reasonable doubt of the defendant’s guilt.
[1]
This charge should not be given except upon the
request of defense counsel. “While a
defendant is entitled to such a charge if requested and a judge may give it on
his own motion if he thinks it advisable under the circumstances, it is
generally not wise to do so absent a request, because of the possible prejudice
to the defendant. State v. Begyn, 34 N.J. 35, 54-56 (1961); State
v. Gardner, 51 N.J. 444, 460-461 (1968). Certainly, it is not error,
let alone plain error, for a trial judge to fail to give this cautionary
comment where it has not been requested.” State v. Artis, 57 N.J. 24, 33
(1970). See also State
v. Gardner, 51 N.J. 444, 460-461 (1968); State v. Anderson,
104 N.J. Super. 18 (App. Div. 1968), aff’d 53 N.J. 65 (1968), cert.
denied, 394 U.S. 966 (1969).
Other
cases discussing a charge regarding a cooperating codefendant or witness’
testimony are as follows: State v. Harris, 156 N.J. 122,
179-180 (1998); State v. Gross, 121 N.J. 1, 16 (1990); State
v. Begyn, 34 N.J. 35, 54 et seq. (1961); State v.
Spruill, 16 N.J. 73, 78 et seq. (1954).
[2]
Use
of the word “accomplice” should be avoided.
State v. Gardner, 51 N.J.
444, 461 (1968); State v. Anderson, 104 N.J. Super. 19
(App. Div. 1968).
[3] There may be circumstances
where this last sentence is not appropriate. See State v. Murphy, 376 N.J. Super.
114, 122-23 (App. Div. 2005).
[4] There may be other circumstances where a prosecution witness may have a
motive to curry favor with the State, e.g., when the witness is on
parole or probation, and/or facing other pending or potential charges. In such instances, an appropriate cautionary
charge should be tailored to the facts.