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

Revised 9/12/16

PROOF OF OTHER CRIMES, WRONGS, OR ACTS1

(N.J.R.E. 404(b))

The State has introduced evidence that the defendant

[OR]

[Describe the evidence of other crimes, wrongs, or acts2 offered by the State.]

Normally, such evidence is not permitted under our rule s of evidence. Our rules

specifically exclude evidence that a defendant has committed other crimes, wrongs, or acts when

it is offered only to show that he/she has a disposition or tendency to do wrong and therefore

must be guilty of the char ged offenses. Before you can give any weight to this evidence, you

must be satisfied that the defendant committed the other [crime, wrong, or act]. If you are not so

satisfied, you may not consider it for any purpose.3

However, our rules do permit evidence of other crimes, wrongs, or acts when the

evidence is used for certain specific, narrow purposes.4

(CHARGE IN ALL CASES)

In this case, [Describe the limited purpose, relevant to a genuine, disputed issue, for which

the evidence has been introduced, and explain specifically how that limited purpose relates

to the facts of the case.]5

(CHARGE IN APPROPRIATE CASE)

[Where the limited purpose for which the evidence is offered is to prove identity,

charge if applicable:

1 The court must instruct the jury on the limited pur pose of this evidence both at the time of its admission

and in the final charge. See State v. Williams, 190 N.J. 114, 133-34 (2007); State v. Angoy, 329 N.J.Super. 79 (App.

Div. 2000).

2 The exclusionary scope of N.J.R.E. 404(b) is broader than that of former Evid. R. 55 and extends to bad

acts. State v. Nance, 148 N.J. 376, 386 (1997).

3 See State v. Wilson , 158 N.J. Super. 1, 10 (App. Div. 1978) (it is for the jury to determine whether they

accept the evidence of the uncharged offenses).

4 See State v. Marrero, 148 N.J. 469, 495-96 (1997); State v. G.S., 145 N.J. 460, 468 (1996); State v. Cusick,

219 N.J. Super. 452, 466-67 (App. Div. 1987) (cited in State v. Oliver, 133 N.J. 141, 158 (1993)).

5 It is not enough for the trial judge to tell the jurors that they may not use the evidence to infer propensity

and that they may only consider it for the limited purpose of proving some other fact in issue. The judge must

instruct the jurors on the specific, limited purpose, relevant to a genuine, disputed issue , for which they may

consider the evidence. N.J.R.E. 404(b); State v. Oliver, 133 N.J. 141, 153, 156-58 (1993); State v. Cofield , 127 N.J.

328, 340-42 (1992); State v. Stevens, 115 N.J. 289, 301 (1989). Furthermore, the judge must do more than state the

general exception to the rule against other crimes invoked by the State. Instead, he or she must relate the abstract

exception to the specific facts of the case. Oliver , 133 N.J. at 158-59; Cofield, 127 N.J. at 341; Stevens, 115 N.J. at

304.

PROOF OF OTHER CRIMES, WRONGS, OR ACTS

N.J.R.E. 404(b)

Here, the evidence has been offered to attempt to convince you that

[the prior crime] and [the charged crime] are so similar and so

unique that you may infer that the same person committed both of

them. You may not draw this inference unless you conclude that

the prior criminal activity with wh ich defendant is identified is so

nearly identical in method as to earmark the crime as defendant’s

handiwork. The conduct in question must be unusual and

distinctive so as to be like a signature, and there must be proof of

sufficient facts in both crimes to establish an unusual pattern.]

6

(CHARGE IN APPROPRIATE CASE)

[Where the limited purpose for which the evidence is offered is to prove

consciousness of guilt related to post-crime conduct, charge if applicable:

Here the evidence has been offered to att empt to convince you that

[describe the alleged post -crime conduct] is evidence of a consciousness

of guilt on the defendant’s part regarding the [particular crime(s) at issue].

You may not draw this inference unless you conclude that the acts alleged

were an attempt by the defendant to cover up the crime(s) being alleged]

7

(CHARGE IN ALL CASES)

Whether this evidence does in fact demonstrate [state the specific purpose for which

the State offers it] is for you to decide. You may decide that the evidence does not demonstrate

[state the purpose] and is not helpful to you at all. In that case, you must disregard the

evidence. On the other hand, you may decide that the evidence does demonstrate [state the

purpose] and use it for that specific purpose.8

However, you may not use this evidence to decide that the defendant has a tendency to

commit crimes or that he/she is a bad person. That is, you may not decide that, just because the

defendant has committed other crimes, wrongs, or acts, he/she must be guilty of the present

crime[s]. I have admitted the evidence only to help you decide the specific question of [describe

specific purpose]. You may not consider it for any other purpose and may not find the defendant

guilty now simply because the State has offered evidence that he/she committed other crimes,

wrongs, or acts.

6 State v. Fo rtin, 162 N.J . 517, 532 (2000) (quoting State v. Reldan , 185 N.J. Super . 494, 502 (App. Div.

1982)).

7 State v. Williams, 190 N.J. 114, 134 (2007). Note that a limiting instruction should be made at the time of

the introduction of the evidence.

8 State v. J.M., Jr., 225 N.J. 146, 159 (2016).

PROOF OF OTHER CRIMES, WRONGS, OR ACTS

N.J.R.E. 404(b)

(CHARGE IN APPROPRIATE CASE UPON DEFENDANT REQUEST)

(Where the prior conduct alleged has been the subject of a prior trial in which the

defendant was acquitted)

The prior conduct which the State alleges you should consider had previously resulted in

a criminal charge being brought against the defendant. A previous jury9 acquitted the defendant

of that charge.10

9 If the acquittal was as the result of a bench trial, the jury may be instructed that the defendant was acquitted

of the charge by the appropriate fact finder.

10 State v. J.M., Jr. , 225 N.J. 146, 163, n.2 (2016). The jury should not be instructed that the State has the

burden to prove beyond a reasonable doubt the act in the instant trial. Id. at 163.