PERJURY
(N.J.S.A. 2C:28-1) model jury charge
The indictment charges this
defendant in Count(s) with perjury in violation of 2C:28-1, which provides in
pertinent part as follows:
A person is guilty of perjury, a crime of the third
degree, if in any official proceeding he makes a false statement under oath or
equivalent affirmation, or swears or affirms the truth of a statement
previously made, when the statement is material and he does not believe it to
be true.[1]
So that you may determine whether or
not the defendant was guilty of perjury, I will define for you the offense of
perjury.
Perjury is the assertion, under oath
[or equivalent affirmation], of a false statement, or the swearing or affirming
under oath [or equivalent affirmation] as to the truth of a previously made
statement, when the person making the statement does not believe that the
statement is true and the statement is material.
In Count(s) of the indictment, the State alleges that the
defendant committed the crime of perjury by virtue of the following testimony
before [the official proceeding] on [date] . This
is the actual quote from the testimony out of which Counts(s) arises:
[INSERT
STATEMENT]
In order to sustain its burden, the
State must prove beyond a reasonable doubt each and every one of the following
elements:
(1) That the statement was made at an
official proceeding;
The term official proceeding is
defined as "a proceeding heard or which may be heard before any
legislative, judicial, administrative or other governmental agency or official
authorized to take evidence, under oath, including any referee, hearing
examiner, commissioner, notary or other person taking testimony or deposition
in connection with any such proceeding.
The term "official proceeding" is intended to include any type
of proceeding where the taking of testimony under oath is authorized.
(2) That the testimony, given before the [the
official proceeding], was given under oath or equivalent
affirmation;
Under this element, any device
employed to demonstrate the special importance of the declaration, that is, the
seriousness of the demand for honesty, constitutes an oath or equivalent
affirmation.
It is not a defense to perjury 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.
(3) That the statement given was knowingly
false;
In this context, a statement is
defined as "any representation, but includes 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." The State must
prove beyond a reasonable doubt that the statement made by the defendant was
false, and that he/she did not believe it to be true.
Under this section, however, there
is no criminal liability for misstatements that are inadvertent in the sense
that the declarant misunderstood the question put to him/her or unconsciously made a slip of the tongue in responding.
The State also alleges that the defendant
made a statement that he/she did not believe to be true. The defendant's belief that the statement was
not true may be established by proof of actual knowledge on the part of the
defendant that the statement was untrue; or from proof of such facts from which
it might reasonably be inferred that the defendant believed the statement was
untrue.
Additionally, under the law of the
State of New Jersey, a defendant cannot be found guilty of perjury solely on
the testimony of one witness. In this
State we have adopted the test that the oath of a single witness must be
supported by proof of corroborating testimony or circumstances of such
character as to clearly overcome the oath of the defendant and legal
presumption of his/her innocence.
To corroborate means to strengthen,
to confirm by additional security, to add strength. Corroborating circumstances when used in
reference to testimony given, are such as serve to strengthen the testimony, to
render it more probable; such, in short as may serve to impress a jury with a
belief of its truth.
Evidence is not corroborative unless
it tends to prove the fact alleged to have been falsely stated. It must relate to the substance of the
evidence on which perjury is assigned; that is, it must be inconsistent with
the truth of the defendant's testimony before the (official proceeding) .
4) That the statement is material;
Falsification is material in the
official proceeding if it could have affected the course or outcome of that
proceeding or the disposition of the matter.
It is irrelevant if the declarant mistakenly believed that the
falsification was not material.
[DISCUSS
THE PARTICULAR FACTS]
Again, the State must prove each of
these elements beyond a reasonable doubt.
If the State has failed to prove one or more of these elements beyond a
reasonable doubt, your verdict must be not guilty. If, on the other hand, the State have proven
each of these elements beyond a reasonable doubt, your verdict must be guilty.
AFFIRMATIVE DEFENSE OF RETRACTION (where applicable)
If the defendant retracted the
falsification in the course of the proceeding or matter in which it was made
prior to termination of the proceeding or matter without having caused
irreparable harm to any party, then the defendant is not guilty of
perjury. To retract means to take back
(what the declarant said) or recant.
There has been evidence in this case
that the defendant did attempt to retract his/her falsification.
If you find that the defendant
retracted his/her statement during the course of the
proceeding and before causing irreparable harm to any party, then he/she must be found not guilty of
perjury. However, if the State has
proven beyond a reasonable doubt that the defendant did not retract the false
statement and the other above enumerated elements of the offense have also been
proven beyond a reasonable doubt, then a verdict of guilty must be rendered.
[1] The question of materiality is now an
issue for the jury. State v. Anderson,
127 N.J. 191 (1992). Prior to Anderson
the issue was a threshold question for the court. See State v. Molnar, 161 N.J. Super.
424 (App. Div. 1978), aff'd 81 N.J. 475.