TAMPERING WITH PHYSICAL
EVIDENCE
(N.J.S.A. 2C:28‑6(2)) model jury charge
Count of the indictment charges the defendant as
follows:
(READ
INDICTMENT)
The Statute upon which this charge
is based reads as follows:
A person commits a crime
. . . if, believing that an official proceeding or investigation is pending or
is about to be instituted, he: (1) Makes, devises, prepares, presents, offers
or uses any article, object, record, document or thing of physical substance
knowing it to be false, and with purpose to mislead a public servant who is
engaged in such proceeding or investigation.
The elements that the State must
prove beyond a reasonable doubt to establish the defendant’s guilt on this
count are as follows:
(1) that
the defendant believed that an official proceeding or investigation was pending or about to be
instituted;
(2) that the defendant purposely (choose
appropriate conduct) made, devised, prepared, presented, offered or used an
(choose relevant object) article, object, record, document or thing of
physical substance, knowing it to be false;
(3) that the defendant’s purpose in (choose
appropriate conduct) making, devising, preparing, presenting, offering, or
using the (choose relevant object) was to mislead a public servant who
was engaged in such proceeding or investigation.
The first element that the State
must prove beyond a reasonable doubt is that the defendant must have believed that
an official proceeding or investigation was pending or about to be instituted.
An official proceeding[1] means a proceeding heard, or which may be
heard, before any legislative, judicial, administrative or other governmental
agency, arbitration proceeding, or other official authorized to take evidence
under oath, including any arbitrator, referee, hearing examiner, commissioner,
notary, or other person taking testimony or deposition in connection with any
such proceeding.
The second element that the State
must prove beyond a reasonable doubt is that the defendant purposely (choose
appropriate conduct) made, devised, prepared, presented, offered or used
the (choose relevant object) article, object, record, document, or thing
of physical substance, knowing it to be false.
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 such circumstances or if he/she believes or hopes that they exist or if he/she means to act in a certain way or to cause
a certain result.
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 if 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. “Knowing,” “with knowledge” or equivalent
terms have the same meaning.
Belief, knowledge and purpose are
conditions of the mind which can not be seen and 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 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 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.
The third element that the State
must prove beyond a reasonable doubt is that defendant’s purpose in (choose
appropriate conduct) making, devising, preparing, presenting, offering or
using the (choose object) article, object, record, document or thing of
physical substance was to mislead a public servant who was engaged in such
proceeding or investigation. Under our law, a public servant is any officer or
employee of government, including legislators and judges, and any person
participating as a juror, advisor, consultant or otherwise, in performing a
governmental function.[2]
If you find that the State has
proven all of the elements of this offense beyond a reasonable doubt, then you
must find the defendant guilty.
If you find that the State has
failed to prove one or more of the elements beyond a reasonable doubt, then
your verdict must be not guilty.