DISTURBING/DESECRATING
HUMAN REMAINS
(N.J.S.A.
2C:22-1a(1)) model jury charge
Count (INSERT) of the Indictment
charges the defendant with the crime of disturbing/desecrating human
remains. The statute on which this count
of the Indictment is based reads in pertinent part:
A person commits an offense if, he unlawfully disturbs,
moves or conceals human remains.
In
order for you to find the defendant guilty of this offense, the State must
prove each of the following elements beyond a reasonable doubt:
(1) That
the defendant unlawfully (disturbed)(moved) (concealed) human remains.
The first element the State must
prove beyond a reasonable doubt is that the defendant unlawfully
(disturbed)(moved)(concealed) human remains.
“Unlawful” means not done in
accordance with law.
“Human remains” means the body of a
deceased person or the dismembered part of a body of a living person. It does not include cremated remains.[2]
The
State must prove beyond a reasonable doubt that the (act/acts) of
(disturbing)(moving)(concealing) human remains (was/were) not done in
accordance with law.
(CHARGE IF UNLAWFULNESS IS AN ISSUE)
In
this case, there is a contention that the acts were done in accordance with
law. The State bears the burden to prove beyond a reasonable doubt that the
acts were unlawful.
The statute defines lawful acts as
those made in accordance with:
(SELECT APPROPRIATE SECTION(S))
(1)
The “State Medical Examiner Act,” P.L.1967, c. 234 (C.52:17B-78
et al.);
(2)
The “Mortuary Science Act,” P.L.1952, c. 340 (C.45:7-32
et seq.);
(3)
The provisions of chapters 6 and 7 of Title 26 of the Revised
Statutes
concerning disposal of dead bodies and cremation;
(4)
The “New Jersey Cemetery Act,” N.J.S.
8A:1-1 et seq.;
(5) A
criminal investigation conducted by a law enforcement authority;
(6)
An order of a court of competent jurisdiction or other appropriate legal
authority.
A good faith action involving interment or
disinterment which disturbs, moves, conceals, desecrates, damages or destroys
human remains is not unlawful. Interment
means to deposit a dead body into the earth or a tomb.[3] Disinterment means to take a dead body out of
a grave or tomb. The State bears the
burden to disprove the presence of good faith beyond a reasonable doubt.
(RESUMPTION OF
MAIN CHARGE)
The
second element that the State must prove beyond a reasonable doubt is that the
defendant acted knowingly.
A
person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she
is aware that his/her conduct is of that nature, or that such circumstances exist, or
he/she
is aware of a high probability of their existence. A person acts knowingly with respect to a
result of his/her conduct if he/she
is aware that it is practically certain that his/her conduct will cause such a result.
Knowledge
is a condition of the mind that cannot be seen and that can be determined only
by inferences from conduct, words or acts.
A state of mind is rarely susceptible of direct proof but must ordinarily
be inferred from the facts. Therefore,
it is not necessary that the State produce witnesses to testify that an accused
said that he/she
had a certain state of mind when he/she
engaged in a particular act. It is within your power to find that such proof
has been furnished beyond a reasonable doubt by inference, which may arise from
the nature of the defendant’s acts and conduct, from all that he/she
said and did at the particular time and place, and from all surrounding
circumstances.
(CHARGE IF APPROPRIATE)
You
must be unanimous as to at least one of the following either (1) that there was
an unlawful disturbing; (2) that there was an unlawful moving; or (3) that
there was an unlawful concealment in order to find that element has been proven
beyond a reasonable doubt.
(CHARGE IF APPROPRIATE IN
PURPOSEFUL/KNOWING MURDER CASES)
When
I charged you on the law regarding murder, as alleged in count ___ of the
indictment, I instructed you that you may find defendant guilty even if you do
not unanimously agree on whether he/she
acted purposely or knowingly in causing death or serious bodily injury so long
as you all find beyond a reasonable doubt that he/she
acted under one of those mental states.
By contrast, in order to find defendant guilty of
[disturbing/desecrating] human remains, you must unanimously find beyond a
reasonable doubt either (1) that there was unlawful concealment, or (2) that
there was an unlawful moving of the remains.
(RESUMPTION OF MAIN CHARGE)
If
you find that the State has failed to prove any element of the offense beyond a
reasonable doubt, then you must find the defendant not guilty.
If
you find that the State has proved each element of the offense beyond a reasonable
doubt, then you must find the defendant guilty.
