The Appellate Division continued in relevant part: It is important that you understand the difference between reckless manslaughter and the lesser-included offense of death by auto for which I will soon be providing you with additional instructions. Reckless manslaughter requires proof beyond a reasonable doubt that the defendant drove his/her vehicle recklessly, and also that he/she engaged in additional acts of recklessness, independent of his/her operation of the vehicle that contributed to the victim’s death. Death by auto on the other hand, only requires proof beyond a reasonable doubt that the defendant recklessly drove his/her vehicle causing the death of another, and it requires no additional acts of recklessness. Here, the State alleges the following additional acts of recklessness:
(INSERT APPROPRIATE LANGUAGE, AND, WHERE APPROPRIATE ON THE FACTS, SUMMARIZE DEFENDANT’S FACTUAL CONTENTIONS AS WELL)
Whether the defendant was reckless in his/her operation of the motor vehicle and/or whether the defendant was additionally reckless as alleged by the State is for you the jury to decide based on the evidence in the case. It is only where you are convinced beyond a reasonable doubt that the defendant was in fact reckless both in the operation of the motor vehicle and in the additional manner as alleged by the State that you may convict the defendant of the charge of reckless manslaughter.
These instructions, however, are not included in the model charge on aggravated manslaughter, nor does that charge provide any guidance for trial judges regarding appropriate instructions when the State has charged a defendant with both aggravated manslaughter and vehicular homicide. See Model Jury Charges (Criminal), “Aggravated Manslaughter (N.J.S.A. 2C:11-4(a))” (rev. Mar. 22, 2004).
Convictions have been reversed for erroneous jury instructions even when the judge followed the model instructions verbatim. This is due in large part to the committees that create the charges ending reaching compromises when their work would otherwise end with an impasse and no model instruction for courts to use.
