N.J. Model Criminal Jury Charge, N.J.S.A. 2C:28-6(1)

Approved 12/13/99

TAMPERING WITH PHYSICAL EVIDENCE

(N.J.S.A. 2C:28-6(1))

Count of the indictment charges the defendant as follows:

(READ INDICTMENT)

The Statute upon which this char ge is based reads as follows:

A person commits a crime . . . if, believing that an official

proceeding or investigation is pending or is about to be instituted,

he: (1) Alters, destroys, conceals or removes any article, object,

record, document or thing of physical substance w ith purpose to

impair its verity or availability in such proceeding or investigation.

The elements that the State must prove beyond a reasonable doubt to establish the

defendant’s guilt on this count are as follows:

(1) that the defendant believed that an official proceeding or investigation was

pending or about to be instituted;

(2) that the defendant purposely (choose appropriate conduct) altered,

destroyed, concealed or removed an (choose relevant object) article,

object, record, document or thing of physical substance;

(3) that the defendant’s purpose in (choose appropriate conduct) altering,

destroying, concealing, or removing the (choose relevant object) was to

impair its verity or availability in the proceeding or investigation.

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

defendant must have believed that an official proceeding or investigation was pending or about

to be instituted. An official proceeding

1 means a proceeding heard, or which may be heard,

before any legislative, judicial, administrative or other gove rnmental agency, arbitration

proceeding, or other official authorized to ta ke evidence under oath, including any arbitrator,

referee, hearing examiner, commissioner, notary, or other person taking testimony or deposition

in connection with any such proceeding.

The second and third elements that the State must prove beyond a reasonable doubt are

that the defendant purposely (choose appropriate conduct) altered, destroyed, concealed or

1 See N.J.S.A. 2C:27-1d for definition and cite as appropriate.

TAMPERING WITH PHYSICAL EVIDENCE

(N.J.S.A. 2C:28-6(1))

removed2 the (choose relevant object) article, object, record, docum ent, or thing of physical

substance in order to impair its verity or availa bility in the official pr oceeding or investigation.

Verity means truthfulness or ac curacy. A person acts purposely with respect to the nature of

his/her conduct or a result thereof if it is his/he r conscious object to enga ge in conduct of that

nature or to cause such a result. A person acts purposel y with respect to attendant circumstances

if he/she is aware of such circum stances or if (he/she) believes or hopes that they exist or if

he/she means to act in a certain way or to cause a certain result.

The defendant’s belief and purpose are conditions of the mind which can not be seen and

can only be determined by inferences from conduc t, words or acts. A state of mind is rarely

susceptible of direct proof, but mu st ordinarily be inferred from the facts. Therefore, it is not

necessary, members of the jury, that the State pr oduce witnesses to testify that an accused said

he/she had a certain state of mind when he/she e ngaged in a particular ac t. It is within your

power to find that such proof has been furn ished beyond a reasonable doubt by inference which

may arise from the nature of his/her acts and his/ her conduct, and from all he/she said and did at

the particular time and place, and from all of the surrounding circumstances.

If you find that the State has proven all of the elements of this offense beyond a

reasonable doubt, then you must find the defendant guilty.

If you find that the State has failed to pr ove one or more of the elements beyond a

reasonable doubt, then your verdict must be not guilty.

2 Note that in State v. Sharpless , 314 N.J. Super . 440 (App. Div. 1998) the Court held that the phrase

“concealment of any article with the pu rpose to impair its availability” in N.J.S.A. 2C:28-6 refers only to evidence

of a completed criminal act, not a curren t possessory crime. Caution must be exercised when giving this instruction

in connection with an indictment that also charges possession of the tampered evidence.