N.J. Model Criminal Jury Charge, N.J.S.A. 2C:29-7

Revised 9/8/08

DEFAULT IN REQUIRED APPEARANCE (BAIL JUMPING)1

(N.J.S.A. 2C:29-7)

The indictment charges the defendant with a violation of a statut e that provides in

pertinent part:

A person set at liberty by court orde r, with or without bail, or who

has been issued a summons, up on condition that he will

subsequently appear at a specified time and place in connection

with any offense or any violation of law punishable by a period of

incarceration, commits an offense if, without lawful excuse, he

fails to appear at that time and place.

Therefore, in order to convict the defendant of the crime charged in this indictment, the

State has the burden of proving each of the following elements of this offense beyond a

reasonable doubt:

(1) That the defendant was charged with an offense or violation of law

punishable by a period of incarceration.

For the purpose of determining whether the State has proven this element, you are

instructed that the offense known as

is punishable by a period of

incarceration.2

(2) That the defendant was set at liber ty by court order, with or without bail,

or issued a summons, upon condition th at he/she would subsequently

appear at a specified time and place.3

(3) That the defendant failed to appear at that time and place.

(4) That the defendant's failur e to appear was without lawful excuse.

(5) That the defendant knew of his/he r charges, knew of the conditions of

1 By its explicit language, this statute does not apply to obligations to appear incident to release under

suspended sentence or on probation or parole, nor does it interfere with or prevent a court's exercise of its power to

punish for contempt.

2 Under the statute, a failure to appear for a non-criminal offense could, at most, constitute a disorderly

persons offense. However, the jury may need instruction as to possible lesser in cluded offenses if there is a factual

dispute in a particular case. Also, if a defendant fails to appear for more than one charged offense, it may be

necessary to advise the jury of the nature and degree of e ach offense so that a verdict can be returned specifying the

offense or offenses for which the defendant knowingly did not appear.

3 The time and place for the required appearance may be at a courtroom, but it may also be something else,

such as a required surrender to commen ce a sentence. The jury should be charged accordingly in an appropriate

case.

DEFAULT IN REQUIRED APPEARANCE

(BAIL JUMPING)

(N.J.S.A 2C:29-7)

his/her release, knew of his/her obligation to appear at the particular time

and place, knowingly failed to appear, and knew that his/her failure to

appear was without lawful excuse.4

A person acts knowingly with respect to the nature of his/her conduct or the attendant

circumstances if he/she is aware th at his/her conduct is of that na ture 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 the result of his/her conduct if he/she is aware that it is practically certain that his/her

conduct will cause such a result. Knowledge is a state of mi nd that cannot be se en 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 know ingly did something.

His/Her knowledge may be gathered from his/her acts and conduct, from all that he/she said and

did at the particular time and pl ace, and from all the surrounding circumstances reflected in the

testimony [and adduced at trial].

I have already told you that the State must prove beyond a reasonable doubt that the

defendant's non-appearance was without lawful excuse. A lawful excuse is one that is warranted,

authorized or sanctioned by the law, and that is not contrary to or forbidden by law. An example

of a lawful excuse would be confinement to a hospital or institution, preventing a defendant from

appearing when required at a specific time and place. [CHARGE WHERE APPROPRIATE:

In this case the defense asserts that the defendant did not appear at the scheduled time and place

because he/she had a lawful excuse. (Recite the defendant's assert ed excuse as presented by

the evidence.)] Whether the State has proven beyond a reasonable doubt that the defendant's

failure to appear was without lawful excuse is for you to decide, as all other issues, based on the

evidence that has been presented for your consideration.

If you find that the State has proven all of the elements of the offense beyond a

reasonable doubt, then you must find the defendant guilty. If you find that the State has failed to

4 The language of N.J.S.A. 2C:29-7 purports to make it the defendant's burden to prove by a preponderance

of evidence that the defendant did not knowingly fail to appear, as an affirmative defense. However, in State v.

Emmons, 397 N.J. Super . 112 (App. Div. 2007), certif. denied, 195 N.J. 421 (2008), the court held that application

of this language would place an unconstitutional burden on the defendant. It forbade charging the statutory

language to the jury, and it laid out the elements of the offense as set forth above.

DEFAULT IN REQUIRED APPEARANCE

(BAIL JUMPING)

(N.J.S.A 2C:29-7)

prove any of the elements beyond a reasonabl e doubt, then you must find the defendant not

guilty.

[CHARGE IF APPROPRIATE]

This count of the indictment also alleges that the defendant 's required appearance was to

answer to a charge of a crime of the third degree or greater, or for disposition of any such charge,

and that the defendant took flight or went into hiding to avoid a pprehension, trial or punishment.

If you find that the State has prove n each of the elements I have previously described, and that

the defendant is therefore guilty of the crime ch arged, and only if you make such a finding, then

you must go on to determine whether the Stat e has also proven, beyond a reasonable doubt, two

additional elements:

(1) That the defendant's required appearance was to answer to a charge of a

crime of the third degree or greater, or for disposition of any such charge.

(2) That the defendant took flight or went into hiding, with a specific purpose

to avoid apprehension, trial or punishment.

For the purpose of determining whether th e State has proven the first of these two

elements, you are instructed that the offe nse known as _________________ is defined by law as

a crime of the ___________________ degree. [By legal definition, a charge of the first degree

or second degree is a greater offense than a crime of the third degree.] With reference to the

second element, flight is not mere departure fr om the defendant's residence or workplace, or

from some other location, and hiding is not simply removing oneself to another place. In either

case, flight or hiding must be accompanied by a specific purpose to avoid apprehension, trial or

punishment.

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 hop es that they exist. "With purpose", "designed",

"with design", or equivalent terms, have the same meaning. Purpose, like knowledge, is a state

of mind that cannot be seen and can only be determined by inference from conduct, words or

DEFAULT IN REQUIRED APPEARANCE

(BAIL JUMPING)

(N.J.S.A 2C:29-7)

acts. Therefore, it is not necessary that the St ate produce witnesses to te stify that a defendant

said that he/she purposely did something. His/Her purpose may be gather ed 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].

[While the State alleges that the defendant took flight or went into hiding to avoid

apprehension, trial or punishment, the defense suggested an alternative explanation for the

defendant's conduct:_____________________________________________________________

_____________________________________________________________________________

____________________________________________________________________________.]

As always, it is for you to determine whethe r the State has proven the additional elements

alleged beyond a reasonable doubt. If you find the defendant guilty of this offense it will be

necessary, when you report your verdict, that you specify whether you have or have not found

that the State has proven beyond a reasonable doubt both of the additional elements, namely that

the defendant was charged with a crime of the th ird degree or greater and that the defendant took

flight or went into hiding with a specific purpose to avoid apprehension, trial or punishment.