N.J. Model Criminal Jury Charge, N.J.S.A. 2C:2-4

Approved 5/7/07

IGNORANCE OR MISTAKE1

(N.J.S.A. 2C:2-4)

[Charge when N.J.S.A. 2C:2-4a is claimed]

In this case, defendant contends that he/she is not guilty of (offense charged) because

he/she mistakenly believed that (describe mistake of fact or law). If you find that defendant held

this belief,2 then he/she could not have acted with the state of mind that the State is required to

prove beyond a reasonable doubt.3

[IF OFFENSE CHARGED REQUIRES A PURPOSEFUL OR KNOWING

STATE OF MIND, CONTINUE CHARGE AS FOLLOWS]

If you find t

hat the State has failed to prove beyond a reasonable doubt that defendant did

not believe that (mistake of fact or law), then you must fi nd him/her not guilty of (offense

charged). However, if you find that the State has proven beyond a reasonable doubt that

defendant did not believe (mistake of fact or law), and you find that the State has proven all of

the elements of the offense beyond a reasona ble doubt, then you must find him/her guilty of

(offense charged).

1 Although the statute refers to mistake of f act or law as a “defense,” caselaw makes it

clear that it is not genuinely a defense at all: instead, it is “an attack on the pr osecution’s ability

to prove the requisite mental state for at least one objective element of the crime.” State v.

Sexton, 160 N.J . 93, 99-100 (1999). Since it is obviously impossible for any single charge to

“explain precisely how the offered defense plays into the element[s]” of every possible offense

that mistake of fact or law could apply to (Sexton, 160 N.J. at 106), and at best can offer “a more

general charge on the subject” of mistake of fact or law ( State v. Pena , 178 N.J. 297, 319

(2004)), this model charge is organized by reference to the state of mind under N.J.S.A. 2C:2-2b

contained in the offense charged by the State, and then by the degree to which the mistake of fact

or law exonerates or mitigates the defendant’s guilt. As always, the trial court must tailor the

precise type of mistake that de fendant relies on to the facts of the particular crime or offense

charged and the facts adduced at trial. State v. Concepcion, 111 N.J. 373, 379-380 (1988).

2 Since even an unreasonable mistake can negate the required state of mind for the charged

offense, the statutory requireme nt that the defendant “reasona bly arrived at the conclusion

underlying the mistake” was eliminated and, therefore, is not referred to in this model charge.

Sexton, 160 N.J. at 105; Pena, 178 N.J. at 306.

3 Sexton, 160 N.J. at 100; Pena, 178 N.J. at 306.

IGNORANCE OR MISTAKE

(N.J.S.A. 2C:2-4)

[OFFENSE

CHARGED REQUIRES A RECKLESS STATE OF MIND,

CONTINUE CHARGE AS FOLLOWS]

If you find that the State has failed to prove beyond a reasonable doubt that defendant did

not believe that (mistake of fact or law), or that he/she was reckle ss in forming that belief, as I

have already defined that term for you, then you must find him/her not guilty of (offense

charged). However, if you find that the State has proven beyond a reasonable doubt that

defendant did not believe that (mis take of fact or law), or that he/she acted recklessly in forming

that belief, and you find that the State has proven all of the elements of the offense beyond a

reasonable doubt, then you must find defendant guilty of (offense charged).

4

[IF DEFENDANT CLAIMS “INCOMPLETE MISTAKE-OF-FACT”

PURSUANT TO N.J.S.A. 2C:2-4b, CHARGE AS FOLLOWS]

In this case, defendant conte nds that he/she believed that (describe mistake of fact or

law). If you find that defendant held this belief, then he/she would not be guilty of (offense

charged). Instead, he/she would be guilty of (lesser offense), 5 the crime that he/she actually

would have committed had the facts proven to be as he believed. 6 The elements of the (lesser

offense) are ___________.

If you find that the State has failed to prove beyond a reasonable doubt that defendant did

not believe the (mistake of fact or law), then yo u must find defendant guilty of (lesser offense).

4 In Sexton, 160 N.J. at 106, the Court gives an example of how the jury should be

instructed on mistake of fact when reckless ma nslaughter is charged and the defendant contends

that he mistakenly believed that the weapon he fired was not loaded.

5 In Pena, 178 N.J . at 313, the Court found a legislativ e “intent to allow the imperfect

mistake-of-fact defense to a de fendant who commits one crime while believing himself to be

committing another, non-lesser included, offense.”

6 Pena, 178 N.J. at 315.

IGNORANCE OR MISTAKE

(N.J.S.A. 2C:2-4)

However, if you find that the State has proven beyond a reasonable doubt that defendant did not

believe that (mistake of fact or law), and you find that the State has proven all of the elements of

the offense beyond a reasonable doubt, then you must find defendant guilty of (charged

offense).7

[IF DEFENDANT CLAIMS THAT HE/SHE BELIEVED THAT

HIS/HER CONDUCT DID NOT LEGALLY CONSTITUTE AN

OFFENSE PURSUANT TO N.J.S.A. 2C:2-4c, CHARGE AS FOLLOWS]

In this case, defendant conte nds that he/she believed that his/her conduct was not illegal

because (describe mistake of law). 8 If you find that defendant held this belief under the

circumstances I will discuss shortly, then you ca nnot find him/her guilty of (offense charged),

because under these circumstances defendant could not have acted with the state of mind that the

State is required to prove beyond a reasonable doubt before he/she can be convicted of (offense

charged).

In order for you to find that defendant’s belief that his/her conduct was not illegal negates

the state of mind required for (offense charge d), defendant must convince you by clear and

convincing evidence that (choose appropriate alternative):

(1) The statute defining the offense is not known to the actor and has not been published

or otherwise reasonably made available prior to the conduct alleged;9 or

7 In Pena, 178 N.J. at 319, the Court gives an example of how the jury should be instructed

when he/she is charged with posse ssion of CDS, but contends that he believed that he possessed

stolen property other than CDS.

8 In State v. Wikliff , 378 N.J. Super. 328, 335 (App. Div. 2005), the Court noted that the

mistakes of law ordinarily cognizable under subs ection a. will be “as to some external body of

law which may destroy the mens rea for the crime charged” rather than “ignorance of the legal

standard established by the statute....” The la tter type of mistake is excusable only under the

narrow exceptions spelled out in subsection c.

9 N.J.S.A. 2C:2-4c(1).

IGNORANCE OR MISTAKE

(N.J.S.A. 2C:2-4)

(2) He/She acted in reasonable reliance upon an official statem ent of the law, afterward

determined to be invalid or erroneous, containe d in (a) a statute, (b) judicial decision, opinion,

judgment, or rule, (c) an administrative orde r or grant of permission, or (d) an official

interpretation of the public officer or body charged by law with responsibility for the

interpretation, administration or enforcement of the law defining the offense;10 or

(3) He/She otherwise diligently pursues all means available to ascertain the meaning and

application of the offense to hi s conduct and honestly and in good faith concludes his conduct is

not an offense in circumstances in which a law-abiding and prudent person would also so

conclude.11

Clear and convincing evidence is that wh ich produces in your mind a firm belief or

conviction as to the truth of the facts sought to be proven and is evidence so clear, direct,

weighty and convincing as to enable you to come to a clear belief, without hesitancy, of the truth

of the particular facts in issue.12

If you find that defendant’s belief that hi s/her conduct was not illegal, and he/she has

convinced you by clear and convincing evidence that (applicable provision of subsection c), then

you must find him/her not guilty of (offense charge d). However, if defendant has not convinced

you by clear and convincing evidence that (applicable provision of subsection c), or if you find

that the State has proven beyond a reasonable doubt that defendant did not believe that his/her

conduct was not illegal, and if you find that the State has proven all of the elements of the

offense beyond a reasonable doubt, then you must find defendant guilty of (offense charged).

10 N.J.S.A. 2C:2-4c(2).

11 N.J.S.A. 2C:2-4c(3).

12 In re: Broadwalk, 180 N.J. Super 324 (App. Div. 1981).