WITNESS - TESTIFYING WHILE WEARING RESTRAINTS[1] Model Jury Charge Criminal NJ

 WITNESS - TESTIFYING WHILE WEARING RESTRAINTS^[1] Model Jury Charge Criminal NJ 

During trial, (NAME OF WITNESS) was wearing restraints.  You must not speculate about the reason for such restraints.  That fact that (NAME OF WITNESS) testified while wearing such restraints should not enter into your discussions or deliberations in any manner as you decide whether the State has proven defendant’s guilt of the charge(s) beyond a reasonable doubt.^[2]

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^[1]           This instruction must be given where a trial court requires an incarcerated witness to appear and testify at a trial while wearing restraints. State v. Artwell, 177 N.J. 526, 538 (2003).  The general rule is neither a witness for the defendant nor a witness for the State should be forced to appear and to testify in restraints, absent compelling security concerns. State v. Dock, 205 N.J. 237, 253 (2011).  Before ordering that an incarcerated witness testify in restraints, the trial court should have  “a straightforward, candid colloquy among the court, counsel and security staff” outside the presence of the jury, in order to determine if the restraints are necessary. State v. Kuchera, 198 N.J. 483, 496 (2009).

The Court should consider: (1) the seriousness of the present charge (2) the person's character (3) the person's past record  (4) past escapes by the person (5) attempted escapes by the person (6) evidence the person is planning an escape (7) threats of harm to others (8) threats to cause disturbance  (9) evidence the person is bent upon self-destruction (10) any risk of mob violence (11) the risk of attempted revenge by victim's family (12) whether there are other offenders still at large or (13) any other relevant consideration. Artwell, supra, 177 N.J. at 538.

^[2]           Kuchera, supra, 198 N.J. at 501.

WITNESS - TESTIFYING IN JAIL GARB OR PRISON GARB[1] Model Jury Charge Criminal NJ

WITNESS - TESTIFYING IN JAIL GARB OR PRISON GARB^[1] Model Jury Charge Criminal NJ

During trial, (NAME OF WITNESS) testified in [jail] [prison] garb.  You must not speculate about the reason the witness is wearing such clothing.  The fact that (NAME OF WITNESS) testified while wearing [jail] [prison] clothing should not enter into your discussions or deliberations in any manner, as you decide whether the State has proven defendant’s guilt of the charge(s) beyond a reasonable doubt.^[2]

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^[1]           Because of the potential impact it might have on the defendant’s right to a fair trial, an incarcerated defense witness may not be required by the trial court to testify in jail clothing or prison clothing, absent a waiver by defendant. State v. Artwell, 177 N.J. 526, 539 (2003).

As for an incarcerated State witness, a trial court may, upon application of the prosecution, exercise its discretion to allow an incarcerated state witness to testify in distinctive jail clothing or prison clothing in front of a jury under certain limited circumstances. State v. Kuchera, 198 N.J. 483, 501 (2009).

This jury instruction must be given where a trial court allows any witness to testify at a trial and the witness is wearing jail clothing or prison clothing. Id. at 497.

^[2]           Kuchera, supra, 198 N.J. at 501.

WITNESS IMMUNITY[1] Model Jury Charge Criminal NJ

WITNESS IMMUNITY[1] Model Jury Charge Criminal NJ

                                            , a witness for the State, has testified that (he/she) has been granted immunity in return for his testimony.

            What do we mean by immunity?  Generally in any criminal proceeding before a court or Grand Jury a person may refuse to answer a question or produce evidence of any kind on the ground that (he/she) may be incriminated thereby, if there is a basis for (his/her) refusal.  In New Jersey we have a law whereby under certain conditions the court may order the witness to testify, and the witness may not refuse to comply with the order on the basis of (his/her) privilege against self-incrimination.  However, none of (his/her) testimony or any information derived directly or indirectly from (his/her) testimony which was compelled by the court order may be used against the witness in any criminal case, except, as with any other witness, a prosecution for perjury or for giving a false statement.

            The fact that the witness has been granted immunity with respect to any testimony which might incriminate (him/her) is a factor which you should consider in evaluating (his/her) testimony and in determining the weight you will give to the testimony.  The testimony of such a witness should be given careful scrutiny.  In weighing (his/her) testimony, therefore, you may consider whether in order to obtain the immunity for (himself/herself), (he/she) is telling a lie to you or whether, having been granted immunity, (he/she) is telling the truth.

            If you believe this witness to be credible and worthy of belief, you have a right to accept (his/her) testimony in the same manner as any other witness' testimony.

            It is important that you understand, however, that the immunity granted the witness is not immunity from prosecution, but simply immunity from the use of (his/her) testimony against (him/her) in a criminal proceeding.  In other words, what (he/she) is saying in court or any information derived directly or indirectly from what (he/she) says in court may not be used against (him/her) in a criminal proceeding by the State, but the State is not precluded from prosecuting (him/her) for a crime on other evidence that is not derived directly or indirectly from (his/her) evidence given here in court.

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[1]           N.J.S.A. 2A:81-17.3 as amended and eff. May 7, 1973.  P.L. 1973, c.112.

NOTE:

Young v. Paterson, 132 N.J. Super. 170 (App. Div. 1975) holds that a Grand Jury witness, granted immunity pursuant to N.J.S.A. 2A:81-173, is not immunized in connection with a civil departmental hearing pertaining to or involving the offense which was the subject matter of his grand jury testimony.

            In re Addonizio, 53 N.J. 107 (1968); State v. Sotteriou, 123 N.J. Super. 434 (App. Div. 1973).

WITNESS - FAILURE OF THE DEFENDANT TO PRODUCE[1] Model Jury Charge Criminal NJ

WITNESS - FAILURE OF THE DEFENDANT TO PRODUCE^[1] Model Jury Charge Criminal NJ

During the course of this trial, reference has been made to ____________(NAME OF PERSON)  as a witness in this matter (as having information relevant to the matter before you) and that the defendant has failed to call (him/her) to testify.  If you find that   _____________ (NAME OF PERSON) is a person whom you would naturally expect the defendant to produce to testify, you have a right to infer from the non-production of this witness that (his/her) testimony would be adverse to the interest of the defendant.

The basis for this rule is that where the defense fails to produce a witness who probably could testify about certain facts in issue, it raises a natural inference that the defense believes that the testimony of the witness on that issue would be unfavorable to its case.^[2]

An inference is a deduction of fact that may be drawn logically and reasonably from another fact or group of facts established by the evidence.  Whether or not an inference should be drawn is for you to decide using your own common sense, knowledge and everyday experience.  Ask yourselves is it probable, logical and reasonable.  However, you are never required or compelled to draw an inference.  You alone decide whether the facts and circumstances shown by the evidence support an inference and you are always free to draw or not to draw an inference.

If you choose to draw this inference, however, you cannot consider it to be affirmative evidence either of defendant’s guilt of the crime(s) charged, or of his/her consciousness of guilt.  The inference simply permits you to assign more or less weight to the evidence that has been offered on the point that _________________(NAME OF PERSON) would have testified about.  I remind you that the State bears the burden of proving defendant’s guilt beyond a reasonable doubt.^[3]

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^[1]           In State v. Hill, 199 N.J. 545 (2009), our Supreme Court ruled that a “missing witness” charge or a comment in summation about a missing witness ordinarily “has no proper place being used against a criminal defendant.”  Id. at 567.  The Supreme Court theorized that such a charge might be appropriate if a defendant has “voluntarily asserted some proof to create an affirmative defense . . . or assert[ed] new facts about an alibi defense,” id. at 569, but did not reach the issue.  Ibid.

^[2]                 Before the trial court can give this charge, euphemistically referred to as a “Clawans” charge, State v. Clawans, 38 N.J. 162 (1962), or allow a comment in summation on the missing witness, the party seeking the charge/summation comment MUST, before the parties rest, notify the trial judge and the opposing party outside the presence of the jury, state the name of the witness/witnesses not called, and indicate why this witness/witnesses have superior knowledge of the relevant facts.  State v. Hill, 199 N.J. 545, 560-61 (2009).  The trial court must rule on this issue before a jury instruction OR summation comment is allowed.  Id. at 561.  In making its decision, the trial court must consider various factors, id. at 561, and place on the record findings as to each of these factors.  Ibid.

^[3]                 State v. Velasquez, 391 N.J. Super. 291, 314 (App. Div. 2007)