(N.J.S.A.
2C:28-5b) model jury charge
The statute upon which
this indictment is based reads in pertinent part as follows:
A person commits an
offense if he harms another by an unlawful act with purpose to retaliate for or
on account of the service of another as [a witness] [an informant].
There are four elements of this
offense that the State must prove beyond a reasonable doubt. They are:
(1) that defendant harmed another,
(2) that the harm was the result of an unlawful
act committed by defendant,
(3) that defendant's purpose was to
retaliate, and
(4) that the retaliation was for or on
account of the service of another
as
[a witness] [an informant].
Let me
explain each of these elements:
First, you must find beyond a
reasonable doubt that defendant harmed another, namely _____________________. "Harm" means any loss, disadvantage
or injury, or anything so regarded by the person affected. It includes loss, disadvantage or injury to
any other person or entity in whose welfare _______________________ is
interested.[1]
Second, the State must prove beyond
a reasonable doubt that defendant committed an unlawful act which caused
this harm. The unlawful act that the
State alleges that defendant committed is that of (insert offense). A person that another within the meaning of the law commits
an unlawful act. is defined elsewhere in our laws as
follows:____________________________________________________________________.
In short, with regard to the second
element, the State must prove beyond a reasonable doubt that defendant
committed an unlawful act, namely .
The third element the State must
prove beyond a reasonable doubt is that defendant's purpose in committing the
unlawful act was to retaliate against .
A person acts purposely with respect
to the nature of his/her
conduct or a result thereof if it is his/her
conscious object to engage in conduct of that nature or to cause such a
result. A person acts purposely with
respect to attendant circumstances if he/she is
aware of the existence of such circumstances or he/she
believes or hopes that they exist. That
is he/she means
to do what he/she
does. "With purpose,"
"designed," "with design," or equivalent terms have the
same meaning. Purpose is a state of mind that cannot be seen and can only
be determined by inference from conduct, words or acts. Therefore, it is not necessary that the State
produce witnesses to testify that a defendant said that he/she
purposely did something. His/Her purpose may be gathered
from his/her
acts and conduct, from all that he/she
said and did at the particular time and place, and from all the surrounding
circumstances reflected in the testimony [and adduced at trial].
Retaliation means to "pay
back" or "get even" with another by inflicting harm on the
person for something that person did or is perceived to have done previously to
the actor.
The fourth element the State must
prove beyond a reasonable doubt is that the retaliation was for or on account
of the service of another as [a witness] [an informant].
The State alleges that the prior
action for which it claims defendant was retaliating was ___________________________.
The State claims that was acting as when (he/she) .
To recap, the State must prove
beyond a reasonable doubt:
(1) that
defendant harmed another,
(2) that
the harm was the result of an unlawful act committed by defendant,
(3) that
defendant's purpose was to retaliate, and
(4) that the retaliation was for or on account
of the service of another as [a witness] [an informant].
If you find that the State has
proven each and every one of these elements beyond a reasonable doubt, you must
find defendant guilty.
If you find that the State has
failed to prove any one of these elements beyond a reasonable doubt, you must
find defendant not guilty.
[CHARGE WHERE SECOND DEGREE OFFENSE IS
ALLEGED]
Our statute provides that
retaliation against [a witness] [an informant] is a crime of the third degree,
except that it is a crime of the second degree if the actor employed force or
the threat of force.
If you find that the State has
proven defendant guilty beyond a reasonable doubt of this crime, then you must
determine whether or not the State has proven beyond a reasonable doubt that
defendant employed force or threat of force.
"Force" means any degree of physical power or strength used
against another person, even though it entails no pain or bodily harm and
leaves no mark.[2] "Threat of force" means that the
words or actions of defendant must be of such nature as to convey menace or
fear of force to the ordinary person.
The State contends that defendant (describe force or threat of force
alleged).
If you find that the State has
proven beyond a reasonable doubt that defendant employed force or threat of
force, then you must find him/her guilty of Retaliation against [a witness]
[an informant] in the second degree. If,
on the other hand, you find that the State has failed to prove this element
beyond a reasonable doubt, you must find him/her not guilty of Retaliation against [a
witness] [an informant] in the second degree.
