FALSE SWEARING
[INCONSISTENT STATEMENTS]
(N.J.S.A. 2C:28‑2c) model jury charge
Defendant
in Count(s) is charged with false swearing. Our law provides that a person who made
inconsistent statements under oath or equivalent affirmation within the period
of the statute of limitations, one of which was false and not believed by the
defendant, is guilty of a crime.[1]
Here, the State alleges that (defendant) committed false swearing by having
made [subsequently sworn to the truth of] [subsequently affirmed] the following
statements, one of which was false and not believed by (defendant) to be true:
[REFER TO STATEMENTS]
To
find (defendant) guilty of false swearing, the State must prove the following
elements beyond a reasonable doubt:
1. That
(defendant) made certain statements;
2. That
those statements were made within the period of the statute of limitations;
3. That
those statements were inconsistent with each other;
4. That
(defendant) made those statements knowingly;
5. That
one of those statements was false and not believed by
(defendant) to be true when he/she made it; and
6. That defendant made the statements
under oath or equivalent affirmation [OR, IF APPLICABLE, that (defendant)
[subsequently swore to] [affirmed] the truth of the previously made statements
while under oath or equivalent affirmation].
First,
the State must prove beyond a reasonable doubt that (defendant) made certain
statements. A statement means any
representation, including a representation of opinion, belief, or other state
of mind only if the representation clearly relates to a state of mind apart
from or in addition to any facts which are the subject of the representation.[2]
Second,
the State must prove beyond a reasonable doubt that the statements were made
within the period of the statute of limitations. This means that the statements had to have
been made on or after (give appropriate date).
Third,
the State must prove beyond a reasonable doubt that the statements made by
(defendant) are inconsistent with each other.
Fourth,
the State must prove beyond a reasonable doubt that (defendant) made the
statements knowingly. A person acts
knowingly with respect to the attendant circumstances of his/her conduct if he/she is aware that such circumstances exist, or is aware of a high
probability of their existence.
"Knowing" or "with knowledge" or equivalent terms
have the same meaning.
Knowledge
is a condition of the mind. It cannot be
seen. Often, it can only be determined 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, members of the jury, that the state
produce witnesses to testify that an accused said he/she knowingly did something. 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 his/her acts and his/her conduct, and from all he/she said and did at the particular time
and place, and from all of the surrounding circumstances.
Fifth,
the State must prove beyond a reasonable doubt that one of the statements was
false and not believed to be true by (defendant) when he/she made it.[3] It is not necessary for the State to prove
which statement was false. Rather, the
State need only prove that one of the statements was false and not believed by
(defendant) to be true. It is not
necessary that you all agree that the same statement was false in order to
convict (defendant) of false swearing, provided that each of you is satisfied
beyond a reasonable doubt that at least one of the statements was false and
that (defendant) did not believe it to be true at the time it was made.[4] (Defendant's) belief that the statement was
not true may be established by proof of (defendant's) actual knowledge that the
statement was untrue, or by proof of such facts from which it might reasonably
be inferred that (defendant) did not believe that the statement was true. I have previously explained to you what
"knowingly" means. There is no
criminal liability, however, for inadvertent misstatements, such as
(defendant's) misunderstanding of a statement or a question or an unconscious
slip of the tongue.
Sixth,
the State must prove beyond a reasonable doubt that the statements were given
under oath or equivalent affirmation [OR, IF APPLICABLE, that defendant
subsequently [affirmed] [swore to] the
truth of the previously made statement while under oath or equivalent
affirmation]. Any device employed to
demonstrate the special importance of the promise of honesty, that is, the
seriousness of the demand for honesty, constitutes an oath or equivalent
affirmation.[5]
The
State must prove each of these elements beyond a reasonable doubt. If the State has failed to prove any of these
elements beyond a reasonable doubt, your verdict must be not guilty of this
charge. If, on the other hand, the State
has proven each of these elements beyond a reasonable doubt, your verdict must
be guilty.
As
part of his/her denial of guilt, (defendant) asserts that he/she retracted a falsification. If (defendant) retracted the false statement
in the course of the proceeding or matter in which it was made before the
proceeding or matter ended, without having caused irreparable harm to anyone,
then he/she is not guilty of false
swearing. To retract means to take back
what was said; to recant. The State has the burden of proving beyond a
reasonable doubt that (defendant) did not retract his/her false statement.
If
the State has failed to prove beyond a reasonable doubt that (defendant) did
not retract [attempt to retract] his/her statement during the course of the proceeding and before causing
irreparable harm to any party, then he/she should be found not guilty of false swearing. However, if the State has proven beyond a
reasonable doubt that (defendant) did not retract [attempt to
retract] his/her false statement, and the other above enumerated elements of the offense
have also been proven beyond a reasonable doubt, then you must return a verdict
of guilty on this charge.
[1] In State v. Bzura, 261 N.J.
Super. 602, 610 (App. Div. 1993), the Appellate Division "construe[d] N.J.S.A.
2C:28-2a and N.J.S.A. 2C:28-2c to define separate offenses with distinct
elements." Only subsection 2a,
however, declares that one who violates its terms "is guilty of a crime of
the fourth degree." Therefore,
rather than quoting subsection 2c verbatim, an amalgam of the two
sections is used to provide a short summary of the crime charged.
[3] Bzura, 261 N.J. Super.
at 610. In Bzura, the defendant
allegedly made six separate statements.
The Court, noting the distinction between the crimes alleged in N.J.S.A.
2C:28-2a and c, respectively, reversed the conviction for false swearing because
the trial court's instructions did not adequately reflect that distinction and,
therefore, may have prevented the jury from reaching unanimity. That jury instruction would have permitted
some jurors to vote to convict by finding that one of defendant's six
statements was false, while permitting other jurors to vote to convict by
finding the kind of inconsistency between the two sets of statements that
establishes that one of them had to be false and not believed to be true. Id. at 614-615. If defendant is charged and tried under both
subsections of N.J.S.A. 2C: 28-2, the trial judge should distinguish
carefully between the two types of false swearing as to each statement alleged.
[5] WHERE THE MANNER IN WHICH THE OATH OR
AFFIRMATION WAS ADMINISTERED IS IN ISSUE: "It is not a defense to false
swearing that the oath or affirmation was administered or taken in an irregular
manner. A document that purports to be
made under oath or affirmation shall be considered as under oath if it is
subsequently presented as being so verified regardless of any technical
irregularities in the effectiveness of the oath for legal purposes." See N.J.S.A.2C:28-1c
