FALSE SWEARING
(N.J.S.A. 2C:28‑2a) model jury charge
(Defendant)
is charged with false swearing in violation of a statute which provides in
pertinent part as follows:
A person who makes a false statement under
oath or equivalent affirmation, or swears or affirms the truth of such a
statement previously made, when he does not believe the statement to be true,
is guilty of a crime ... .
Here, the
State alleges that (defendant) committed false swearing by having [made]
[subsequently sworn to the truth of] [subsequently affirmed] the following
statement:
[REFER TO STATEMENT]
To
find (defendant) guilty of false swearing, the State must prove the following
elements beyond a reasonable doubt:
1. That (defendant) made a statement.
3.
That the statement was false.
5. That the statement was made under oath
or equivalent affirmation [OR, IF APPLICABLE, that (defendant) subsequently
swore to, or affirmed, the truth of the previously made statement while under
oath or equivalent affirmation].
First,
the State must prove beyond a reasonable doubt that (defendant) made a
statement.[1] A statement means any representation,
including a representation of opinion, belief, or other state of mind, only if
the representation clearly relates to state of mind apart from or in addition
to any facts which are the subject of the representation.
Second,
the State must prove beyond a reasonable doubt that (defendant) made the
statement 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.
Knowledge
is a condition of the mind. It cannot be
seen. Often, it can only be determined
by inference 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 a defendant said that he/she knowingly did something. It is
within your power to find that such proof has been furnished beyond a
reasonable doubt by inferences which may arise from the nature of his/her acts and conduct, and from all that he/she said and did at the particular time and place, and from all the
surrounding circumstances.
Third,
the State must prove beyond a reasonable doubt that the statement was false.
Fourth,
the State must prove beyond a reasonable doubt that (defendant) did not believe
that the statement was true when he/she made it. (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 the concept of “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.
Fifth,
the State must prove beyond a reasonable doubt that the statement was given
under oath or equivalent affirmation [OR, IF APPLICABLE, that defendant
subsequently affirmed or 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.[2]
The
State must prove each of these elements beyond a reasonable doubt. If the State has failed to prove each of
these elements beyond a reasonable doubt, your verdict must be not guilty of
this offense. 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 [attempted to retract] a falsification. If (defendant) retracted [attempted to
retract] the false statement in the course of the proceeding in which it was
made before that proceeding ended, without having caused irreparable harm to
anyone, 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 [attempt to 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 anyone, he/she must 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
enumerated elements of the offense have also been proven beyond a reasonable
doubt, you must return a verdict of guilty on this offense.
[2] WHERE APPLICABLE [Where the manner in
which the oath or affirmation is 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.