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

Approved 11/7/05

STATEMENTS OF DEFENDANT

(WHEN COURT FINDS POLICE INEXCUSABLY FAILED TO ELECTRONICALLY

RECORD STATEMENT)1

A. Charge to be Given When State Offers St atement as Direct Evidence of Defendant’s

Guilt2:

There is for your consideration in this case a (written or oral) statement allegedly made by

the defendant.

The State contends that the defendant made the statement and that the information contained

in it is credible. [HERE STATE DEFENDANT’S ASSERTIONS, IF ANY.]

It is your function to determine (1) whether the statement was actually made, and (2) whether

it, or any portion of it, is credible.

To make that decision, you should take into consideration the circumstances and facts as to

how the statement was made.

[HERE DISCUSS EVIDENCE ADDUCED BEFOR E THE JURY RELATI NG TO SUCH

FACTS AND CIRCUMSTANCES WHICH MAY INCLUDE BUT NEED NOT BE LIMITED

TO RENDITION OF MIRANDA WARNING S AND WAIVER; TIME AND PLACE OF

INTERROGATION; TREATMENT OF DEFENDANT BY LAW ENFORCEMENT

OFFICIALS; DEFENDANT’S MENTAL AND PHYSICAL CONDITION; AND WHETHER

THE STATEMENT IS DEEMED VOL UNTARY UNDER ALL OF THE FACTS AND

CIRCUMSTANCES.]

Among the factors you may consider in deciding whether or not the defendant actually gave

the alleged statement and if so, whether any or all of the statement is credible, is the failure of law

enforcement officials to make an electronic recording of the interrogation conducted and the

1 Rule 3:17-1, which mandates recordation of defendants’ statements, becomes effective for all

homicide offenses on January 1, 2006. It becomes effective for kidnapping, robbery, aggravated sexual

assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, second degree aggravated

assault, aggravated arson, burglary, first or second degree crimes under Chapter 35, any crime involving the

possession or use of a firearm, and conspiracies and attempts to commit any of these crimes, on January 1,

2007. Rule

3:17-1(a).

2 CAVEAT: [IF THE STATE IS ALLEGING THAT PORTIONS OF THE STATEMENT ARE

TRUE AND ARE ADMISSIONS OF GUILT WHILE OTHERS ARE FALSE AND EVIDENCE

DEFENDANT’S EFFORT TO AVOID PROSECUTION AND/OR CONVICTION OR OTHERWISE

EVIDENCE CONSCIOUSNESS OF GUILT, IT MAY BE NECESSARY TO GIVE PORTIONS OF BOTH

CHARGES (A) AND (B).]

STATEMENTS OF DEFENDANT

(WHEN COURT FINDS POLICE

INEXCUSABLY FAILED TO

ELECTRONICALLY RECORD STATEMENT)

defendant’s alleged statement itself. Our Rules require the electronic recording of interrogations by

law enforcement officers when a defendant is charge d with [insert applicable offenses] so as to

ensure that you will have before you a complete picture of all circumstances under which an alleged

statement of a defendant was given, so that you may determine whether a statement was in fact made

and, if so, whether it was accurately reported by State’s witnesses and whether it was made

voluntarily or is otherwise reliable or trustworthy. Where there is a failure to electronically record

an interrogation, you have not been provided with a complete picture of all of the facts surrounding

the defendant’s alleged statement and the precise details of that statement. By way of example, you

cannot hear the tone or inflection of the defendant’s or interrogator’s voices, or hear first hand the

interrogation, both questions and responses, in its entirety. Instead you have been presented with a

summary based upon the recollections of law enforcement personnel. Therefore, you should weigh

the evidence of the defendant’s alleged statemen t with great caution and care as you determine

whether or not the statement was in fact made a nd if so, whether what was said was accurately

reported by State’s witnesses, and what weight, if any, it should be given in your deliberations. The

absence of an electronic recording permits but does not compel you to conclude that the State has

failed to prove that a statement was in fact gi ven and if so, was accurately reported by State’s

witnesses.

[IF ORAL STATEMENT, CHARGE THE FOLLOWING PARAGRAPH]

Furthermore, in considering whether or not an oral statement was actually made by the

defendant, and if made, whether it is credible, you should receive, weigh, and consider this evidence

with caution as well, based on the generally recognized risk of misunderstanding by the hearer, or

the ability of the hearer to recall accurately the words used by the defendant. The specific words

used and the ability to remember them are important to the correct understanding of any oral

communication because the presence, or absence, or change of a single word may substantially

change the true meaning of even the shortest sentence.

If, after consideration of all these factors, you determine that the statement was not actually

STATEMENTS OF DEFENDANT

(WHEN COURT FINDS POLICE

INEXCUSABLY FAILED TO

ELECTRONICALLY RECORD STATEMENT)

made, then you must disregard the statement completely.

If you find that the statement was made, you may give it what weight you think appropriate.

B. Charge to be Given When Statement of Defendant is Introduced by the State for the

Purpose of Inferring the Defendant’s Effort to Avoid Arrest and/or Prosecution Due to

Consciousness of Guilt:

There is for your consideration in this case a (written or oral) statement allegedly made by

the defendant.

The State contends that the statement was made by the defendant, that it was knowingly false

when it was made, and that you may draw inferences from this as to the defendant’s state of mind at

that time. [HERE STATE DEFENDANT’S POSITION, IF ANY.]

It is your function to determine whether the statement was actually made. In considering

whether or not the statement was made by the defendant, you may take into consideration the

circumstances and facts surrounding the giving of the statement.

[HERE DISCUSS FACTS AND CIRCUMSTANCE S SURROUNDING TH E GIVING OF

THE STATEMENT.]

Among the factors you may consider in deciding whether or not the defendant actually gave

the alleged statement is the failure of law enforcement officials to make an electronic recording of

the interrogation conducted and the alleged statem ent itself. Our Rules require the electronic

recording of interrogations by law enforcement offi cers when a defendant is charged with [insert

applicable offenses]. This is done to ensure that you will have before you a complete picture of the

circumstances under which an alleged statemen t of a defendant was given, so that you may

determine whether a statement was in fact made and/or was accurately recorded. Where there is

failure to electronically record an interrogation, you have not been provided with a complete picture

of all the facts surrounding the defendant’s allege d statement and the precise details of that

statement. By way of example, you cannot hear th e tone or inflection of the defendant’s or the

interrogator’s voices, or hear first hand the interrogation, both questions and responses, in its

entirety. Instead you have been presented with a summary based upon the recollections of law

STATEMENTS OF DEFENDANT

(WHEN COURT FINDS POLICE

INEXCUSABLY FAILED TO

ELECTRONICALLY RECORD STATEMENT)

enforcement personnel. Therefore, you should we igh the evidence of the defendant’s alleged

statement with great caution and care as you determ ine whether or not the statement was in fact

made and if so whether it was accurately reported by State’s witnesses, and what, if any, weight it

should be given in your deliberations. The absence of an electronic recording permits but does not

compel you to conclude that the State has failed to prove that a statement was in fact given and if so,

accurately reported by State’s witnesses.

[IF ORAL STATEMENT—CHARGE THE FOLLOWING PARAGRAPH]

Furthermore, in considering whether or not an oral statement was actually made by the

defendant, and, if made, accurately reported by State’s witnesses, you should receive, weigh, and

consider this evidence with caution based on the generally recognized risk of misunderstanding by

the hearer, or the ability of the hearer to reca ll accurately the words used by the defendant. The

specific words used and the ability to remember them are important to the correct understanding of

any oral communication because the presence, or absence, or change of a single word may

substantially change the true meaning of even the shortest sentence.

If after consideration of all of the evidence you determine that the statement was not made,

then you should disregard it completely. If you find that the statement was made, you must

determine what inferences you can draw from it and what weight, if any, to give to it.