Changes to the Model Jury Charge (Part 1)

by | Apr 1, 2018 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

Fred Sisto Criminial Defense Attorney courtroomOn January 22, 2018, Justice Timpone wrote for a unanimous New Jersey Supreme Court in the Middlesex County case of State v. Karlton Bailey. The principle issue was whether a defendant could be convicted of violating N.J.S.A. 2C:39-7, Certain Persons Not to Have Weapons, when the jury was told that a defendant had been previously convicted of a third-degree offense, but not that the offense was a predicate offense under 2C:39-7.


The Court held in relevant part: We now consider the adequacy of that model charge and the appropriate level of sanitization when a defendant does not stipulate to a predicate conviction. If a defendant chooses to stipulate, evidence of the predicate offense is extremely limited: “The most the jury needs to know is that the conviction admitted by the defendant falls within the class of crimes that bars a convict from possessing a gun.” A defendant who stipulates can therefore prevent the State from presenting evidence of the name and nature of the offense. Provided that the stipulation is a knowing and voluntary waiver of rights, placed on the record in defendant’s presence, the prosecution is limited to announcing to the jury that the defendant has committed an offense that satisfies the statutory predicate-offense element.

The dicta in Brown, as incorporated into the model jury charge for certain persons offenses, essentially requires that the predicate-conviction evidence be sanitized to such degree that the evidence be no more informative than a stipulation. Such over-sanitization is problematic.

The over-sanitization called for in the model charge injects a constitutional defect into any trial on a certain persons offense where a defendant declines to stipulate. The elements of the certain persons offense are straightforward: conviction of a predicate offense and possession of a firearm. In a certain persons trial, the State must prove that the defendant was convicted of an enumerated predicate offense and later possessed a firearm. Each element must be proved beyond a reasonable doubt. By preventing the State from providing the jury with evidence that the prior conviction was for a predicate offense — as opposed to another offense that does not lead to a weapons bar — the model charge actually prevents a jury from finding beyond a reasonable doubt a required element of the certain persons offense — a clear constitutional infirmity.


Note that the model criminal jury charge at issue is crafted by the New Jersey Supreme Court after consultation with the Criminal Practice Committee. That committee is staffed by some of the state’s most experienced criminal defense attorneys, prosecutors, and judges. The appellate attorney for Mr. Bailey thus spotted an issue that numerous other experienced practitioners missed.