Form 196: Request to Charge

• Library: Criminal Law Forms (ABA) (2013 Ed.)

Form 196: Request to Charge

KENNETH VERCAMMEN
& ASSOCIATES, PC
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500
Attorney for Defendant

STATE

v

___ Defendant

SUPERIOR COURT OF NJ MIDDLESEX COUNTY

Indictment No.
Request to Charge

STATE OF MIND¹
[Select Appropriate:]

Purpose/knowledge/intent/recklessness/negligence is/are condition(s) of the mind which cannot be seen and can only be determined by inferences from conduct, words or acts.

A state of mind is rarely susceptible of direct proof, but must ordinarily be inferred from the facts. Therefore, it is not necessary, members of the jury, that the state produce witnesses to testify that an accused said he/she had a certain state of mind when he/she engaged in a particular act. It is within your power to find that such proof has been furnished 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.

DEFENDANT'S ELECTION NOT TO TESTIFY

As you know, (defendant) elected not to testify at trial. It is his/her constitutional right to remain silent.

You must not consider for any purpose or in any manner in arriving at your verdict the fact that (defendant) did not testify. That fact should not enter into your deliberations or discussions in any manner, at any time.

(Defendant) is entitled to have the jury consider all evidence presented at trial. He/she is presumed innocent whether or not he/she chooses to testify.

Malloy v. Hogan, 378 U.S. 1 (1964).

Griffin v. California, 380 U.S. 609 (1965).

State v. McLaughlin, 93 N.J. Super. 435, 439 (App. Div. 1967).

N.J.S. 2A:84A-17(1).

U.S. v. Garguillo, 310 F. 2d 249, 252 (2 Cir. 1962).

U.S. v. Kelly, 349 F. 2d 720, 769 (2 Cir. 1965), cert. denied 384 U.S. 947 (1966).

State v. De Stasio, 49 N.J. 247 (1967).

PRESUMPTION OF INNOCENCE

This defendant(s), as are all defendants in criminal cases, is presumed to be innocent until proven guilty beyond a reasonable doubt. That presumption continues throughout the whole trial of the case and even during your deliberations unless and until you have determined that the State has proven his guilt beyond a reasonable doubt.

REASONABLE DOUBT

The prosecution must prove its case by more than a mere preponderance of the evidence, yet not necessarily to an absolute certainty.

The State has the burden of proving the defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases, where you were told that it is necessary to prove only that a fact is more likely true than not true. In criminal cases, the State's proof must be more powerful than that. It must be beyond a reasonable doubt.

A reasonable doubt is an honest and reasonable uncertainty in your minds about the guilt of the defendant after you have given full and impartial consideration to all of the evidence. A reasonable doubt may arise from the evidence itself or from a lack of evidence. It is a doubt that a reasonable person hearing the same evidence would have.

Proof beyond a reasonable doubt is proof, for example, that leaves you firmly convinced of the defendant's guilt. In this world, we know very few things with absolute certainty. In criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find [him/her] guilty. If, on the other hand, you are not firmly convinced of defendant's guilt, you must give defendant the benefit of the doubt and find [him/her] not guilty.

Revised 10/18/05

INTOXICATION NEGATING AN ELEMENT OF THE OFFENSE (N.J.S.A. 2C:2-8a)

There is evidence in this case concerning the use by the defendant of alcohol (prior to and) on the day in question.

Generally a defendant is not relieved of criminal responsibility because heis found to have acted under the influence of an intoxicating beverage (or drugs). The general assumption is that every person is normal and is possessed of ordinary faculties. The State need not prove that the defendant was sober.

You may consider the evidence as to defendant's consumption of alcoholic beverages (or drugs, if appropriate) in determining whether he/she was intoxicated to such a degree that he/she was incapable of acting (purposely or knowingly).

Therefore, once there is some evidence of defendant's intoxication, the State must prove beyond a reasonable doubt that such intoxication did not render defendant incapable of acting (purposely or knowingly).

Intoxication under our law means a disturbance of mental or physical capacities resulting from the introduction of substances into the body. [N.J.S.A. 2C:2-8e(1)].

In considering the question of intoxication, you should carefully distinguish between the condition of mind which is merely excited by intoxicating-drink (or drugs) and yet capable of acting with (purpose or knowledge), and the condition in which one's mental faculties are so prostrated as to deprive one of his will to act and ability to reason, thereby rendering a person incapable of acting and thus preventing the person from committing the crime charged with the mental state required of either (purposely or knowingly).

This distinction is important because, as explained, whether or not the defense of intoxication applies is a factual determination to be made by you.

You may also consider, along with all the other evidence, the degree of intoxication in determining whether or not the defendant was capable of acting with (purpose or knowledge) to commit the crime charged.

You...