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

Revised 5/12/08

ALIBI1

The defendant as a part of his/her denial of guilt contends that he/she was not present at the

time and place that the crime was allegedly committed, but was somewhere else and therefore could

not possibly have committed or participated in the crime. Where a person must be present at the

scene of the crime to commit it, the burden of proving the defendant’s presence beyond a reasonable

doubt is upon the State. The defendant has neither the burden nor the duty to show that he/she was

elsewhere at the time and so could not have committed the offense. You must determine, therefore,

whether the State has proved each and every element of the offense charged, including that of the

defendant’s presence at the scene of the crime and his/her participation in it.2

(CHARGE THE FOLLOWING PARAGRAPH IN ALL CASES

WHERE THE DEFENDANT HAS TESTIFIED TO AN ALIBI)

You have heard testimony about when (insert name of defendant) first came forward with

his/her account of what happened. I instruct you that (insert name of defendant) had no obligation to

provide an account at any time and there may be many reasons for his/her not doing so. You may

not use the testimony about when (name of defendant) first came forward to affect his/her credibility

or to conclude that he/she violated some obligation to come forward, because (name of defendant)

had no duty to speak on the subject with anyone.3

(CHARGE THE FOLLOWING PARAGRAPH IN ALL

CASES WHERE AN ALIBI WITNESS HAS TESTIFIED)

You will [also]4 recall that the witness testified that ______________________________.

You may consider the evidence concerning when (name of alibi witness) came forward, and why

(name of alibi witness) did so at that time, only for the limited purpose of deciding whether it affects

1 Use of the pejorative word “alibi” should be avoided in the charge. See State v. Peetros, 45 N.J. 540, 553

(1965). If the facts warrant it, defendant is entitled to the charge even in the absence of a request. State v. Searles, 82

N.J. Super. 210 (App. Div. 1964).

2 State v. Garvin, 44 N.J. 268, 272 (1965); State v. Ravenell, 43 N.J. 171, 187 (1964); State v. Driver, 38 N.J.

255, 290 (1962); State v. Mucci, 25 N.J. 423, 431 (1957).

3 State v. Silva, 131 N.J. 438, 451; State v. Brown, 118 N.J. 595, 616 & n.3 (1990).

4 The word [also] should be used when both the defendant and another alibi witness have testified, and the court

has read the preceding paragraph to the jury.

ALIBI

the credibility of (name of alibi witness) account.5 You may not use the evidence to conclude that

(name of alibi witness) violated some obligation to come forward, because (name of alibi witness)

[also] had no duty to speak on the subject with anyone.6

CHARGE IN ALL CASES

If, after a consideration of all of the evid ence, including the evidence of the defendant’s

whereabouts at the time of the offense, you concl ude that the State has failed to prove beyond a

reasonable doubt any of the elements of the offe nse(s) charged, you must find the defendant not

guilty. If, however, after considering all of the evidence, you conclude that the State has proven

every element of the offense(s) charged beyond a reasonable doubt, including the defendant’s

presence at the scene of the crime, then you must find the defendant guilty.

5 This sentence applies only to the testimony of a witne ss other than the defendant and, in cases where the

defendant has testified, the court should emphasize that it does not apply to the defendant’s testimony. State v. Noble,

398 N.J. Super. 574, 594 n.3 (App. Div. 2008).

6 State v. Silva, 131 N.J. 438, 451 (1993); State v. Brown, 118 N.J. 595, 616 & n.3 (1990).