N.J. Model Criminal Jury Charge, N.J.S.A. Non 2C

Approved 2/6/12

FAILURE OF POLICE TO PRESERVE NOTES1

(effective May 27, 2011)2

You have heard testimony that ___________________ failed to preserve (his/her/their)

original notes in this case. Law enforcement officers are required to preserve contemporaneous

notes of their interviews and observations at the scene of a crime, even after producing their final

reports. A defendant is entitled to test whether the officer has accurately recorded statements and

observations that were made contemporaneously and also to test whether the final report and the

officer’s trial testimony are inaccurate because of some inconsistency with what the officer

recorded at the scene. When the contemporan eous notes are not pres erved, the defendant is

deprived of this opportunity to test the accuracy of the contemporaneous notes, the final report,

and the trial testimony.

[Insert Parties Contentions, If Any]

It is for you the jury to decide the credibility of the evidence presented. In evaluating the

officer’s credibility, you may infer that notes lo st or destroyed by an officer before trial

contained information unfavorable or inconsistent with that officer's trial testimony or final

report. In deciding whether to draw this inference, you may consider all the evidence in the case,

including any explanation given as to the circumstances under which the contemporaneous notes

were lost or destroyed. In th e end, however, the weight to be given to the testimony, and to the

loss or destruction of the notes, is for you, and you alone, to decide.

1 This charge must be requested by a defe ndant, and when given it should be molded, after

conference with counsel, to the facts of the case. State v. W.B., 205 N.J. 588 (2011). Note that the Court

stated in footnote 10 of W.B., "Every opportunity when contemporaneous notes are lost or destroyed does

not necessitate an adverse inference charge." Id . at 608-09. The Court cited State v. P.S ., 202 N.J. 232

(2010), for this proposition, but when the adverse inference charge may be deemed inapplicable is not

entirely clear. The issue will have to be addressed on a case-by-case basis until the Court provides further

guidance on the subject.

2 In State v. W.B , 205 N.J. 588, 608-09 (2011), the Supreme Court held that the rule against

destroying contemporaneous notes would not be effec tive until 30 days after the opinion, which is May

27, 2011. This charge is inapplicable to notes destroyed or lost before this date.