N.J. Model Criminal Jury Charge, N.J.S.A. 2C:5-1 / 2C11-3, 2C:11-4

Revised 6/13/11

U

ATTEMPTED MURDER/ATTEMPTED PASSION/PROVOCATION

MANSLAUGHTER

(N.J.S.A. 2C:11-3, 2C:11-4 and 2C:5-1)

Count __________ of the indictment charges defendant with attempted murder.

[Read count of the indictment]

The law provides1 :

An actor is guilty of attempted murder if he purposely

attempted to cause death and did not act in the heat of

passion arising from reasonable provocation.

In order to convict defendant of this charge , the State must prove the following elements

beyond a reasonable doubt:

1. that it was defendant’s purpose to cause the death of (name of victim);

2. that defendant purposely engaged in c onduct which was intended to cause the death

of the victim, if the attendant circumst ances were as a reasonable person would

believe them to be;

OR

2. that defendant did or omitted to do anything with the purpose of causing the death

of (name of victim) without further conduct on his part;

OR

2. that defendant purposely did or omitted to do anything which, under the

circumstances as a reasonable person woul d believe them to be, was an act or

omission constituting a substantial step in the course of conduct planned to culminate

in the death of (name of victim), and

3. that defendant did not act in the heat of passion arising from reasonable provocation.

If you find that the State has proven beyond a reasonable doubt that defendant purposely

attempted to cause the death of (name of victim) and that defendant did not act in the heat of passion

resulting from reasonable provocation, then you must find defendant guilty of attempted murder. If

you find beyond a reasonable doubt that the State has proven that defendant purposely attempted to

cause the death of (name of victim) and that defendant acted in the heat of passion resulting from a

reasonable provocation, then you must find defe ndant guilty of attempted passion/provocation

manslaughter.

The first element that the State must prove beyond a reasonable doubt is that defendant’s

ATTEMPTED MURDER/ATTEMPTED

PASSION/PROVOCATION MANSLAUGHTER

(N.J.S.A. 2C:11-3, 2C:11-4; and 2C:5-1)

purpose was to cause the death of (name of victim).

The second elem

ent that the State must prove beyond a reasonable doubt is that

defendant

[CHOOSE APPROPRIATE]

[Attempt-Impossibility]

(1) Purposely engaged in conduct which was intended to cause the death of the victim, if

the attendant circumstances were as a reasonable person would believe them to be;

OR

[Attempt-When Causing a Particular Result is an Element of Crime]

(2) Did or omitted to do anything with the purpose of causing the death of (name of

victim) without further conduct on his/her part;

OR

[Attempt-Substantial Step]

(3) Purposely did or omitted to do anyt hing which, under the circumstances as a

reasonable person would believe them to be, was an act or omission constituting a

substantial step in a course of conduct planned to culminate in defendant’s causing

the death of (name of victim). The st ep taken must be one that is strongly

corroborative of criminal purpose. Defendant must be shown to have had a firmness

of criminal purpose in light of the steps he/she had already taken. These preparatory

steps must have been substantial and not just very remote preparatory acts.

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 the individual is aware of the existence of such

circumstances or the individual believes or hopes that they exist. “With purpose,” “designed,” “with

design” or equivalent terms have the same meaning.

The term purposely is a condition of the mind. A condition of the mind cannot be seen. It

can only be determined by inferences from defendant’s 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 that the State produce witnesses to testify that an accused said that he/she had a certain

state of mind when he/she did a particular thing. It is within your power to find that such proof has

1 State v. Robinson, 136 N.J. 476 (1994).

ATTEMPTED MURDER/ATTEMPTED

PASSION/PROVOCATION MANSLAUGHTER

(N.J.S.A. 2C:11-3, 2C:11-4; and 2C:5-1)

been furnished beyond a reasonable doubt by inferences which m ay arise from the nature of his/her

acts and conduct and from all he/she said and di d at the particular time and place and from all

surrounding circumstances established by the evidence.

The use of a deadly weapon such as (describ e deadly weapon) in itself may permit you to

draw an inference that the defendant’s purpose was to take a life. A deadly weapon is any firearm or

other weapon, device, instrument, material or subs tance, which in the manner it is used or is

intended to be used, is known to be capable of producing death. 2 In your deliberations you may

consider the weapon used and the manner and circumstances of the attack, and if you are satisfied

beyond a reasonable doubt that the defendant (shot) (stabbed) (other method of causing injury)

(name of victim) with a (gun) (knife) (other weapon), you may draw an inference as to defendant’s

purpose from the (gun) (knife) (other weapon) used and from the manner and circumstances of the

attack.

3

The third element that the State must prove beyond a reasonable doubt is that defendant did

not act in the heat of passion resulting from a reasonable provocation. Attempted passion/

provocation manslaughter has four factors which distinguish it from attempted murder. In order for

you to find defendant guilty of attempted murder, the State need only prove the absence of any one

of them beyond a reasonable doubt. The four factors are:

1. There was adequate provocation;

2. The provocation actually impassioned defendant;

3. Defendant did not have a reasonable time to cool off between the provocation and

the attack, and

4. Defendant did not actually cool off before committing the attack.

The first factor you must consider is whether the State has proven beyond a reasonable doubt

that the provocation was not adequate. Whether the provocation is inadequate essentially amounts to

whether loss of self-control is a reasonable reaction to the circumstances. In order for the State to

carry its burden it must prove beyond a reasonable doubt that the provocation was not sufficient to

arouse the passions of an ordinary person beyond th e power of his control. For example, words

alone do not constitute adequate provocation. On the other hand, a threat with a gun or knife or a

2 N.J.S.A. 2C:11-1c.

3 If defendant claims that he/she used deadly force in self defense, a rational basis for

passion/provocation manslaughter can be found in evidence supporting the pre-Code theory of imperfect self

defense. See footnote 1 of Model Jury Charge, Justification–Self Defense In Self Protection (N.J.S.A. 2C:3-4).

ATTEMPTED MURDER/ATTEMPTED

PASSION/PROVOCATION MANSLAUGHTER

(N.J.S.A. 2C:11-3, 2C:11-4; and 2C:5-1)

significant physical confrontation might be considered adequate provocation. Again, the State must

prove that the provocation was not adequate.

The second factor you must consider is whether the State has proven beyond a reasonable

doubt that defendant was not actually impassioned, that is, that he did not actually lose his/her self-control.

The third factor you must consider is wh ether the State has proven beyond a reasonable

doubt that defendant had a reasonable time to cool off. In other words, you must determine whether

the State has proven that the time between the provoking event(s) and the attack was adequate for

the return of a reasonable person's self-control.

The fourth factor you must consider is wh ether the State has proven beyond a reasonable

doubt that defendant actually did cool off before committing the attack, that is, that he/she was no

longer actually impassioned.

If you find that the State has proven beyond a reasonable doubt that there was not adequate

provocation or that the provocation did not actually impassion the defendant or that defendant had a

reasonable time to cool off or that defendant actually cooled off and in addition to proving one of

those four factors you determine that the State has proved beyond a reasonable doubt that defendant

purposely attempted to cause the death of (name of victim), then you must find defendant guilty of

attempted murder.

If, on the other hand, you determine that the State has not disproved at least one of the factors

of attempted passion/provocation manslaughter beyond a reasonable doubt, but that the State has

proven beyond a reasonable doubt that defendant purposely attempted to cause the death of (name of

victim), then you must find defendant guilty of attempted passion/provocation manslaughter.

If, however, the State has failed to prove beyond a reasonable doubt that defendant purposely

attempted to cause the death of (name of vic tim), then you must find defendant not guilty of

attempted murder or attempted passion/provocation manslaughter.

PROPOSED VERDICT SHEET

On the charge that defendant purposely attempted to cause the death of (name of victim), our

verdict is

A. NOT GUILTY []

B. GUILTY OF ATTEMPTED

PASSION/PROVOCATION MANSLAUGHTER []

ATTEMPTED MURDER/ATTEMPTED

PASSION/PROVOCATION MANSLAUGHTER

(N.J.S.A. 2C:11-3, 2C:11-4; and 2C:5-1)

C. GUILTY OF ATTEMPTED MURDER []