1.19 BURDEN OF PROOF - CLEAR AND CONVINCING EVIDENCE

Civil Model Jury Charge

1.19 BURDEN OF PROOF - CLEAR AND CONVINCING EVIDENCE
   With regard to (state here the factual issue(s) to be proved) it is the obligation of (state here the party or parties upon whom the burden of proof rests) to prove those allegations by clear and convincing evidence. Clear and convincing evidence is evidence that produces in your minds a firm belief or conviction that the allegations sought to be proved by the evidence are true. It is evidence so clear, direct, weighty in terms of quality, and convincing as to cause you to come to a clear conviction of the truth of the precise facts in issue.
The clear and convincing standard of proof requires that the result shall not be reached by a mere balancing of doubts or probabilities, but rather by clear evidence which causes you to be convinced that the allegations sought to be proved are true.


Note:
Clear and convincing establishes a standard of proof falling somewhere between the traditional standards of "preponderance of the evidence" and "beyond a reasonable doubt." It is an exception to the rule requiring proof by a preponderance of the evidence in civil cases and proof beyond a reasonable doubt in criminal cases. Although the committee does not recommend it, it nonetheless recognizes that some judges may feel more comfortable in defining the usual civil standard, preponderance of the evidence, as well as the criminal standard, beyond a
reasonable doubt, as an aid to the jury in understanding what clear and convincing evidence means. If such an election is made, the judge should consult the standard civil charge for preponderance of the evidence and criminal charge 1.104 for "proof beyond a reasonable doubt." Accordingly, depending on the specific circumstances, this standard is mandated by both case law and statute. The following is a non-exclusive list of the instances where the clear and convincing standard is the applicable burden of proof; please note that most of the following citations involve matters ruled upon by a judge without a jury. They have been listed solely for any research benefit they might provide.

-- to prove a claim under Statute of Frauds, Statute of Wills, or the parole evidence rule. Herman and MacLean v. Huddleston, 459 U.S. 375, 74 L.Ed.2d 548, 549, 103 S.Ct. 683 (1983).

-- the adverse parties are at a gross disadvantage in disputing an allegation. State v. Sugar, 100 N.J. 214 (1985).

-- when the threatened loss resulting from civil proceedings is comparable to the consequences of a criminal proceeding. In re Polk License Revocation, 90 N.J. 550, 563 (1982).

-- before a decision is made to withdraw a life sustaining treatment from an incompetent nursing home patient. Matter of Conroy, 98 N.J. 321, 382 (1985).

-- in a civil commitment proceeding. Addington v. Texas, 441 U.S. 418, 60 L.Ed.2d 323, 99 S.Ct. 1804 (1079).

-- whenever the interests of the natural parents in the care, custody and management of their child are threatened. Santosky v. Kramer, 455 U.S. 754, 71 L.Ed.2d 599, 102 S.Ct. 1388 (1982).

-- where the circumstances or issues are so unusual or difficult that proof by a lower standard will not serve to generate confidence in the ultimate factual determination. In re Polk License Revocation, supra at 568.


-- cases involving defamation or where the defendant has a qualified immunity or privilege. Burke v. Deiner, 97 N.J. 465, 481 (1984).

-- discipline or disbarment proceedings against an attorney, In re Pennica, 36 N.J. 401 (1962); In re Racmiel, 90 N.J. 646, 661 (1982).

-- proving fraud. Minter v. Bendix Aviation Corp., 26 N.J. Super. 268, 274 (App. Div. 1953). When the allegation of fraud is presented as an affirmative defense and is actually a claim of non-entitlement to alleged contractural benefits or is tantamount to a claim of breach of contract on the part of a plain-tiff, the standard of proof is the usual "greater weight of the evidence" standard. See Italian Fisherman v. Commercial Un. Assur., 215 N.J. Super. 278 (App. Div. 1987) (defendant insurance company's affirmative defense of arson on the part of the insured, as well as the incidental torts of fraud and false swearing involved in the presentation of the claim for fire damage, must be proved by the preponderance of the evidence and not by clear and convincing proof). However, see also Batka v. Liberty Mutual, 704 F.2d 684 (3 Cir. 1983) which held that where insurance company asserts fraud in the inducement to the contract the allegation must be proved by clear and convincing proof.

-- proving a public nuisance. Township of Cherry Hill, N.J. v. N.J. Racing Commission, 131 N.J. Super. 125 (Law Div. 1974), aff'd o.b., 131 N.J. Super. 482 (App. Div. 1974).

-- challenging special assessments. McNally v. Township of Teaneck, 132 N.J. Super. 441 (Law Div. 1975), mod. 75 N.J. 33 (1977).

-- amending an election petition. Lepre v. Caputo, 131 N.J. Super. 118 (App. Div. 1974).


-- showing that sterilization is in the best interests of an incompetent person and that the person to be sterilized lacks the capacity to consent or withhold consent. In re Grady, 85 N.J. 235 (1981).

-- establishing that officers of a corporation seeking a casino license or an applicant for a casino key employee license possess good character, honesty and integrity. In re Boardwalk Casino License Application, 180 N.J. Super. 324 (App. Div. 1981), mod. on oth. grds. 90 N.J. 361 (1982), app. dism. 459 U.S. 1081, 74 L.Ed.2d 927, 103 S.Ct. 562 (1982); In re Tufi Application, 182 N.J. Super. 631, 638 (App. Div. 1981), certif. den 91 N.J. 189 (1982).

-- demonstrating that persons connected with an applicant for a license for the collection, transportation, treatment, storage and disposal of solid wastes, who have been previously convicted of a serious crime, have since been rehabilitated. N.J.S.A. 13:1E-133.

-- overcoming the presumption that the facts related in a sheriff's return of service are true. Garley v. Waddington, 177 N.J. Super. 173 (App. Div. 1981).

-- demonstrating that government action constitutes a taking of property. Matter of Egg Harbor Associates (Bayshore Centre), 94 N.J. 358, 374, showing that a rent control ordinance has a widespread confiscatory effect upon efficient landlords. Helmsley v. Borough of Fort Lee, 78 N.J. 200 (1978), app. dism. 440 U.S. 978, 60 L.Ed.2d 237, 99 S.Ct. 1178 (1979); Orange Taxpayers Council, Inc. v. City of Orange, 169 N.J. Super. 288 (App. Div. 1979), aff'd. 83 N.J. 246 (1980).

-- showing that an attorney's extrajudicial speech truly jeopardized the fairness of an ongoing trial. In re Hinds, 90 N.J. 604, 626 (1982).


-- justifying the debarment of a contractor from doing any further business with the State. N.J.A.C. 17:12-7.3(a)5; Keys Martin & Co. v. Director, Div. of Purchase, 99 N.J. 244, 263 (1985).

-- establishing that a contract should be reformed. St. Pius X House of Retreats v. Camden, 88 N.J. 571, 580-581 (1982).

-- overcoming the presumption that the value of a partner's interest in a professional partnership is accurately reflected by the value ascribed to it in a buy-sell agreement. Stern v. Stern, 66 N.J. 340, 346-347 (1975).

-- showing that there was inadequate consideration for a mortgage. Continental Bank of Pa. v. Barclay Riding Acad., 93 N.J. 153, 170 (1983), cert. den. 464 U.S. 994 (1983); Federal Beneficial Ass'n. v. Eastern Land Co., 96 N.J. Eq. 628, 631 (E. & A. 1924).

-- overcoming the presumption that the last of two or more marriages is valid. Newburgh v. Arrigo, 88 N.J. 529, 538 (1982).

-- showing a waiver of the newsperson's privilege. N.J.S.A. 2A:84A-21.3B (Rule 27).

-- overcoming the presumption of validity attaching to a certification received by a municipality for its plan for providing for its fair share of low and moderate income housing from the State Council on Affordable Housing. N.J.S.A. 52:27D-317.

-- a trial judge should not set aside a jury verdict as against the weight of the evidence unless it clearly and convincingly appears that allowing the verdict to stand would work a manifest denial of justice under the law. R. 3:20-1; R. 4:49-1(a). The same standard applies to an appellate court which is asked to overturn a trial court's denial of a motion for a new

trial on the ground that the verdict was against the weight of the evidence. State v. Carter, 91 N.J. 86, 96 (1982). See State v. Sims, 65 N.J. 359, 373-374 (1974); R. 2:10-1.

CAUTION: MOST OF THE FOREGOING CASES ARE NON-JURY CASES; THESE CASES ARE BROUGHT TO YOUR ATTENTION AS EXAMPLES OF THE APPLICATION OF THE CLEAR AND CONVINCING STANDARD.


SEE ALSO:

-- Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162; In re Boardwalk Regency Casino License Application, 180 N.J. Super. 324, 399 (App. Div. 1981), modified on other grounds, 90 N.J. 361 (1982); Lepre v. Caputo, 131 N.J. Super. 118, 124 (L. Div. 1974); New Jersey Rules of Evidence, Comments 5 and 7 to Rule 1(4), at 35 and 46 (1986 ed.).


Model Civil Jury Charges

1.18 WITNESS--FAILURE OF A PARTY TO PRODUCE

A. Where Court Determines That There Is an Issue of Fact as to One or More of the Criteria

During the course of this trial, reference has been made to _____________ as a witness in this matter (as having information relevant to the matter before you) and that the plaintiff/defendant has failed to call him/her to testify. If you find that ________________ is a person whom you would naturally expect the plaintiff/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 interests of the plaintiff/defendant.
The basis for this rule is that where a party fails to produce a witness who probably could elucidate certain facts in issue, it raises a natural inference that the non-producing party fears that the testimony of the witness on that issue would be unfavorable to him/her.
However, an adverse inference should not be drawn:
(1) If _______________ is not a witness whom the plaintiff/defendant would naturally be expected to produce; nor

(2) If there has been a satisfactory explanation for his/her non-production; nor

(3) If he/her is equally available to both parties; nor


(4) If his/her testimony would be comparatively unimportant, cumulative in nature or inferior to that which you already have before you.
Whether or not an adverse inference should be drawn is for your determination based upon the principles I have just set forth.


Comments:
The appropriate criteria may be selected by the Judge and molded to fit his particular case. Various criteria must be considered by the Court in determining whether or not any of the alternative charges should be utilized. In addition to the aforementioned, the Court should also take into consideration the expense involved and imposition on the time or profession of the witness as compared with the importance of his testimony and the value of the litigation. Wild v. Roman, 91 N.J. Super. 410, 414-419 (App. Div. 1966); Parentini v. S. Klein Dept. Stores, 94 N.J. Super. 452 (App. Div. 1967).
Judge Gaulkin in Wild v. Roman, supra. discussed the following principles in determining whether or not the absent witness charge should be given (91 N.J. Super. at p. 414):

"In Clawans the Court stressed the 'peculiar facts' before it. Therefore we doubt that Clawans always compels the giving of such a charge when a possible witness does not appear, even upon request and even if the rules laid down in Clawans and hereafter discussed are complied with. Be that as it may, Clawans did not hold that the charge was to be given merely because a person who apparently knew something about some facet of the case did not appear and testify. We think Clawans made it abundantly clear that (1) the charge is not to be given unless the judge is first satisfied that giving it is clearly justified as to a particular witness or a particular class of witnesses, and (2) the charge, if given, must identify the witness or class of witnesses in question and the issues upon which their testimony might

have been helpful. See Clawans, at p. 173, and Justice Francis's dissenting opinion therein, at pp. 175-176.

"Clawans restated the conditions precedent for such a charge. It must appear that it was within the power of the party to produce the witness. The inference 'is based not on the bare fact that a particular person is not produced as a witness...but on his non-production when it would be natural for the party to produce the witness.' (citation omitted) It must appear reasonably probable that the witness 'could testify to specifically identifiable facts.' (citation omitted), and, even then, that his evidence would not be merely cumulative, but 'superior to that already utilized in respect to the fact to be proved.' (citation omitted) The inference is not proper if the witness is available to both parties or 'by his position would likely to be so prejudiced against the party that the latter could not be expected to obtain the unbiased truth from him...'"




Notes:
(1) Specify Witnesses Involved

Since the absent witness charge should not be given as to all absent witnesses, to avoid confusion the charge should be related specifically to those witnesses to whom it applies. Biruk v. Wilson, 50 N.J. 253, 261 (1967).

As stated above a different charge may be required with respect to the absence of different witnesses. As to some absent witnesses an adverse inference may be drawn, but as to others the only inference that may be drawn is that witness' testimony would not have specifically contradicted the evidence offered by an adversary and would not have materially aided a given party's case. In some cases no adverse or other inference can be drawn.



(2) Procedure Before Giving Charge

A party desiring an adverse inference charge should advise the trial judge and counsel out of the jury's presence at the close of his adversary's case of his intention to request the adverse inference charge as to particular persons not called and the reasons why the charge should be given. The adversary should then be given the opportunity to either call the designated witness or demonstrate to the court "by argument or proof" the reason for the failure to call.

Depending upon the circumstances disclosed, the trial court may decide that the failure to call the witness raises no inference, or an unfavorable one, and whether reference in the summation or charge is warranted. State v. Clawans, 38 N.J. 162, 172 (1962).


(3) Construction of "Equally Available" to Both Parties

An adverse inference does not arise as to the ordinary witness whose testimony would likely be as favorable to one party as to the other. Whether a witness is "equally available" is not to be determined from mere physical presence, but the court should consider the relationship of the witness to a party and other factors related thereto. Hickman v. Pace, 82 N.J. Super. 483, 492 (App. Div. 1964). Defendant testified that the witnesses were out of state, that he had asked them to come in, and testify as witnesses for him, but they had refused. See also, Michaels v. Brookchester, Inc., 26 N.J. 379, 391 (1958).


(4) Failure to Take Depositions of Unavailable Witnesses

See O'Neil v. Bilotta, 18 N.J. Super. 82, 87 (App. Div. 1952) aff'd 10 N.J. 308 (1952) as to the effect of not taking the deposition of an out-of-state witness.


B. When Court Has Determined That The Adverse Inference May Be Drawn
Reference has been made to _______________________ (as a person who has information relevant to the matter before you) and that the plaintiff/defendant has failed to call him/her to testify.
The rule is that where a party (plaintiff/defendant) fails to produce as a witness a person whom that party would naturally be expected to call to testify, you have a right to infer that had the witness been produced he/she would have testified adversely to the interests of that party (plaintiff/defendant).
The reason for this rule is that where you would normally expect a party to call a person as a witness and that party, without reasonable explanation, fails to do so, it leaves a natural inference that the non-producing party fears exposure of facts which would be unfavorable to him/her.


Cases:
See, State v. Clawans, 38 N.J. 162 (1962); Michaels v. Brookchester, Inc., 26 N.J. 379 (1958); O'Neil v. Bilotta, 18 N.J. Super. 82 (App. Div. 1952); aff'd 10 N.J. 308 (1952); Hickman v. Pace, 82 N.J. Super. 483, 490 (App. Div. 1964).



C. Where Court Has Determined To Charge No Adverse Inference Can Be Drawn
During the course of this trial reference has been made to _____________. The Court has determined that the non-production of __________________ as a witness is excusable as a matter of law. Therefore, you should not speculate as to what his testimony would be had he/she been called to testify. Nor may you draw any inferences against or in favor of either party from his/her failure to testify.


Comments:
In Wild v. Roman, 91 N.J. Super. 410, 416 (App. Div. 1966) it was said that it is "nearly always for the judge alone to decide" whether the circumstances warrant an adverse inference or an inference of no material aid to a party's case. The court said that it is rare that a factual dispute as to the factors involved should be left for the jury. Obviously, the court must first determine whether or not to give an adverse inference charge as to a designated absent witness and whether the charge of "no material aid" (see Parentini, supra) should be given.
D. Where Testimony is not of a Material Aid
From the testimony it would appear that ___________________ (Dr. ________) is a person who has information relative to the (medical) issues involved, and that the plaintiff/defendant has failed to call him/her as a witness. The failure of a party to produce as a witness a person whom that party would

naturally be expected to call does not necessarily permit the inference that the testimony of that witness would have been unfavorable to that party.
In the circumstances of this case, however, you may infer that this witness would not have specifically contradicted the testimony of witnesses (Dr. ____________) called by the plaintiff/defendant and that the evidence of the absent witness would not have materially aided plaintiff/defendant's case.


Comments:
In Parentini v. S. Klein Dept. Stores, 94 N.J. Super. 452 (App. Div. 1967), a false imprisonment case, plaintiff produced two doctors who testified as to the causal relation between the episode and the psychiatric condition of plaintiff and as to permanency. A neurologist examined plaintiff for defendant but was not called. Defendant offered no medical testimony. The court held that the usual adverse inference charge was error. The court noted that medical experts are often not called because their testimony would not be helpful enough to warrant the expense or intrusion on professional time, or the opinion offered may not be helpful to that party even though it is not adverse to that party. In the circumstances it was held that the trial court in its discretion could have charged that the jury could infer from the non-production of defendant's medical expert that his testimony "would not have specifically contradicted that of plaintiff's experts and it would not have materially aided defendant's case." (at p. 457).

Model Civil Jury Charges

1.17 INSTRUCTIONS TO JURY IN CASES IN WHICH ONE OR MORE DEFENDANTS HAVE SETTLED WITH THE PLAINTIFF

[Name] was originally named as a defendant in this case. [Choose appropriate option: Before the trial started/During the trial,] plaintiff and [named defendant(s)] resolved their differences. As a result [name] will not be present or represented by an attorney during this trial.
You are not to speculate as to the reasons why the plaintiff and [defendant] settled their dispute. You should not be concerned about the amount, if any, that may have been paid to resolve the claim against [defendant]. You must decide the case based on the evidence you find credible and the law presented at this trial.
Initially you will have to decide whether or not the remaining defendants were negligent, proximately causing the accident. The burden of proof on these issues is on plaintiff [name]. If you find that one or more of the remaining defendants were negligent and that such negligence was a proximate cause of the accident, you must next consider the conduct of the settling defendant. You will have to determine whether or not the settling defendant [name] was negligent and a proximate cause of the accident. The burden of

proving that the settling defendant was at fault is on the remaining defendant(s).
In the event that you find that a settling defendant was negligent and a proximate cause of the accident, you must apportion fault in terms of percentages among/between the settling defendant(s) and the remaining defendant(s).


CASES:
Theobald v. Angelos, 44 N.J. 228 (1965); Cartel Capital Corporation v. Fireco of New Jersey, 81 N.J. 548, 569 (1980). Kiss v. Jacobs, 138 N.J. 278, 283 (1994) fact finder must assess the negligence of the settling defendant as non-settling defendant. Shatz v. TEC Technical Adhesives, 174 N.J. Super 135 (App. Div. 1980) defendant has the burden of proving that a settling defendant was negligent.

1.16 ALTERNATE JUROR EMPANELED AFTER DELIBERATIONS HAVE BEGUN; R. 1:8-2(d)

As you know, Juror #___ has been excused from the jury. An alternate juror has been appointed to take his/her place. As of this moment, as a new jury, you are to start your deliberations over again.
The parties have the right to a verdict reached by six jurors who have had full opportunity to participate in deliberations from start to finish. The alternate juror is now entering the jury room with no knowledge of any deliberations that may already have taken place. The remaining jurors and the alternate juror must begin at the very beginning of the deliberation process. You remaining jurors must disregard whatever may have occurred and anything which may have been said in the jury room since you entered that room after listening to my charge. You are to give no weight to any opinion which Juror # may have previously expressed in the jury room before he/she was excused. Together, as a new jury, you shall consider the evidence all over again as you conduct full and complete deliberations, until you have reached your verdict.


Cases:

State v. Corsaro, 107 N.J. 339 (1987); State v. Czachor, 82 N.J. 392 (1980); State v. Lipsky, 164 N.J. Super. 39 (App. Div. 1978); State v. Trent, 79 N.J. 251 (1979).



Note:

Substitution of juror after return of partial verdicts in criminal prosecution and thereafter permitting continued deliberations in order to reach final verdicts on remaining counts was plain error, requiring reversal of convictions on "open charges" subsequently returned by reconstituted jury. State v. Corsaro, supra.

1.13 EXPERT TESTIMONY

See footnote 1 (4/95)

You have heard testimony from a witness(es) who was (were) called as experts. Generally, witnesses can testify only about the facts and are not permitted to give opinions. However, an exception to this rule exists in the case of an expert witness. An expert witness may give an opinion on a matter in which the witness has (some special knowledge, education, skill, experience or training).See footnote 2 An expert witness may be able to assist you in understanding the evidence in this case or in performing your duties as a fact finder.See footnote 3 But I want to emphasize to you that the determination of the facts in this case rests solely with you as jurors.
In this case, [list experts] were called as experts and testified about certain opinions.
In examining each expert's opinion(s), you may consider the person's reasons for testifying, if any. You may also consider the qualifications of the individual(s) and the believability of the expert, including all the considerations that generally apply when you are deciding whether or not to believe a witness' testimony.See footnote 4
The weight of the expert's opinion depends on the facts on which the expert bases his/her opinion.See footnote 5 You as jurors must also decide whether the facts relied upon by the expert actually exist.

Finally, you are not bound by the testimony of an expert. You may give it whatever weight you deem is appropriate. You may accept or reject all or part of an expert's opinion(s).See footnote 6

A. Optional Charge Concerning Hypothetical Questions See footnote 7
An expert witness was asked to assume that certain facts were true and to give an opinion based on that assumption. This is called a hypothetical question. You must determine if any fact assumed by the witness has not been proved and the effect of that omission, if any, upon the weight of the expert's opinion.


B. Optional Charge In Case Of Conflicting Expert Testimony
It is for you the jury to resolve any conflicts in the testimony of the experts, using the same guidelines in determining credibility that I mentioned earlier. See footnote 8

C. Optional Charge Concerning Fee Paid To Expert
The amount of the expert witness' fee is a matter that you may consider as possibly affecting the believability of an expert. However, there is nothing improper in the expert witness(es) being paid a reasonable fee for (his/her) work and for (his/her) time in attending court.

D. Optional Charge Concerning Statements From Publications
You will recall that statements were read in connection with the direct or cross-examination of (insert name of expert witness). These statements

were contained in a (reference or professional publication, journal, pamphlet or periodical).See footnote 9
However, merely because a publication has been read to you does not mean that you must accept it as binding on any of your decisions. You may give the statement(s) discussed in the publication whatever weight you believe it (they) deserves using your reason, judgment and common sense.


Footnote: 1In the following instances, the Committee has approved specific charges on expert testimony and these charges should be given instead of the general charge on expert testimony:
5.36 Medical Malpractice
5.37C. Legal Malpractice
5.38B. Professional Liability of Architect
10.10C. Condemnation

Footnote: 2 N.J. Rules of Evidence 702. The Committee recommends that a judge select the two most appropriate reasons offered to support the expert testimony in a particular case, because jurors are more likely to recall one or two items rather than an entire list.
Footnote: 3 N.J. Rules of Evidence 702, 703, 704. See also Landrigan v. Celotex Corp., 127 N.J. 404 (1992).
Footnote: 4 State v. Perez, 218 N.J. Super. 478, 486 (App. Div. 1987).
Footnote: 5 Polyard v. Terry, 160 N.J. Super. 497, 511 (App. Div. 1978), aff'd, 79 N.J. 547 (1979). See also N.J. Rules of Evidence 703.
Footnote: 6 State v. Spann, 236 N.J. Super. 13, 21 (App Div. 1989).
Footnote: 7N.J. Rules of Evidence 705.
Footnote: 8 Manning v. Public Service Elec. & Gas Co., 58 N.J. Super. 386, 393 (App. Div. 1959).
Footnote: 9 Before any statements contained in a publication can be read into evidence or referred to by an expert, there must be a determination by the judge that the publication is a reliable authority. That foundation may be established in a variety of ways. For example, an expert may establish that an article in a periodical is a reliable authority by testifying that it is one of the sources the expert uses in keeping up to date in the expert's field of expertise. A publication also can be admitted as a reliable authority because the expert or the court has recognized the authoritative stature of the writer or the acceptance of the article itself by the profession. A text may also qualify as reliable authority if it represents the type of material reasonably relied on by experts in the field.
Sources: Federal Rules of Evidence 803 (18); N.J. Rules of Evidence 803(c)(18); Jacober v. St. Peter's Medical Center, 128 N.J. 475 (1992); 11 Moore's Federal Practice, Art VIII (2d ed. 1989); Schnieder v. Revici, 817 F.2d 987 (2d Cir. 1987); Allen v. Safeco Ins. Co. of America, 782 F.2d. 1517, 1519 (11th Cir. 1986); Tart v. McGann, 697 F.2d 75 (2d Cir. 1982); Meschino v. North American Drager, Inc., 841 F.2d 429, 434 (1st Cir. 1988).

Model Civil Jury Charges

1.15 NOTE-TAKING BY JURORS

A. Preliminary Instruction Before Trial

(We have provided each of you with a pad and pencil.) During the course of this trial you will be permitted to take notes if you feel this would help you. I emphasize that you are permitted, not required, to take notes. What you do or do not write down is a strictly personal matter with each individual juror. Your notes are confidential. No one else will have a right to see your notes at any time. We will collect your notes at the end of each court day and return them to you for the next court day. At the end of the trial, we will destroy your notes.

During your deliberations, the notes of a juror will not be evidence. Notes may be used to refresh your recollection, not to replace it. Your understanding and recollection of the evidence will be more significant than a note. Notes are memory aids and are not evidence or the official record. Jurors who took few or no notes should not permit their independent recollection of the evidence to be influenced solely by the fact that other jurors have taken notes. Their notes may be wrong and your recollection right.
It is important that each of you pay attention to all of the testimony. When a witness is on the stand, do not allow yourself to be distracted by your own note-taking or that of a fellow juror. You need to see the witness to evaluate that witnesses' believability.

B. Juror's Notes - Post Trial

You are to resolve the factual disputes in this case based upon the exhibits which you will have in the jury room with you and your recollection of the testimony of witnesses as bearing on those issues.
You have been permitted to make notes during the course of this trial. But as I told you before we started, these notes are not evidence. You may use the notes during your deliberations to help you to recall what the testimony was. However, do not overemphasize the significance of a written note made by yourself or by a fellow juror. If a note does help to refresh your recollection, it has then been useful, but it is your recollection not the note which is important. If your memory differs, you have an absolute right to rely solely on your own recollection.


Footnote: 1 Before opening statements, the attorneys or any party may request that the jury be permitted to take notes during the trial or any portion thereof including opening and closing statements. R. 1:8-8(b). The trial judge has discretion to determine in the first instance if the case lends itself to the practice and to exercise control and direction over the manner in which the jurors exercise the right. Wigler v. Newark, 125 N.J. Super. 179 (App. Div. 1973), cert. den. 64 N.J. 490 (1974).

For further information see also: Report of Supreme Court Committee on Civil Case Management and Procedures (the "Schreiber Report"), N.J.L.J. March 28, 1985, which suggests this note-taking procedure. The Civil Practice Committee in its 1986 Annual Report concurred in the recommendations of the Schreiber Report regarding the use of these instructions in appropriate cases at the discretion of the trial judge; the Committee, however, recommended against incorporation of these procedures in the Rules of Court. The Supreme Court adopted these recommendations at its February 1, 1988 Administrative Conference.

1.14 INSTRUCTION TO THE PARTIES, COUNSEL AND SPECTATORS, IF ANY, WHO HAVE BEEN CLOSELY FOLLOWING TRIAL AFTER JURY HAS RETIRED TO DELIBERATE

[Where necessary or appropriate, the following instructions might be given.]

You have been present when I explained the procedures about how the jury foreperson will announce the verdict by answering the questions from the verdict sheet.
The announcement of the verdict may be an emotional experience for you. I remind you that this is a courtroom, and I will allow no outbursts of emotion and condone no expressions or gestures of hostility toward the court, the jury, counsel or the parties. Such conduct may be considered contempt of the court, and contempt will be dealt with severely. After the jury has rendered its verdict, there may be matters that I have to discuss with counsel. The litigants and spectators must remain in their seats until I discharge the jury. After the jury has been discharged, I will adjourn the court. Then the parties and counsel, after receiving their exhibits, are free to go.

No attorney, or party, or person connected with the case can interview, examine or question any juror with respect to any matter relating to this case without a court order. [R. 1:16-1.] Any violation of these rules may be considered a contempt.

1.12 GENERAL PROVISIONS AND OUTLINE FOR STANDARD CHARGE

Outline

Introduction

A. Purpose of Charge

B. Role of the Court

C. Role of the Attorneys

D. Role of the Jury

E. The Evidence

F. Contention of the Parties

G. Burden of Proof

H. Preponderance of the Evidence (short version)

I. Preponderance of the Evidence (long version added 2/98)

J. Direct and Circumstantial Evidence or Inferences (long version)

K. Credibility (short version)

L. Credibility (long version)

M. False in One - False in All

N. Liability

O. Damages

P. No Prejudice, Passion, Bias or Sympathy

Q. Deliberations

R. Alternates

S. Verdict

T. Jury Verdict Sheet

U. Communications with Court (long version)

V. Communications with Court (short version)

W. Thanking the Jury

X. Exceptions of Counsel

Y. Reduce Jury to Six (11/98)

Z. Designate the Foreperson


AA. Swear the Attendants

BB. Lawyers Check Exhibits

CC. Send Jury to Deliberate

DD. Receiving Verdict

EE. Thanking and Discharging the Jury

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1.12 GENERAL PROVISIONS AND OUTLINE FOR STANDARD CHARGE (11/98)

Introduction

[The following language covers issues of general law applicable to virtually all civil cases.See footnote 1 The issues must be explained to the jury so that the jurors will understand the process and their role in the process.

There is no "magic language" that the Court must employ in explaining these issues to the jury. The following is not required language that Courts must use. The judge should employ his or her own style and explain the necessary concepts to the jury in a clear and understandable way. The following is suggested by the Committee as an appropriate means to explain these rules and concepts to the jury.

The material in parentheses is optional language that some judges customarily give. It is recommended that the language not in parentheses be covered in the charge in some manner. Judges should feel free to adjust the order of the sections.]
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A. Purpose of Charge
I am now going to tell you about the principles of law governing this case. You are required to accept my instruction as the law.
(You should consider these instructions as a whole, and do not pick out any particular instruction and place undue emphasis upon it).
(Any ideas you have of what the law is or what the law should be or any statements by the attorneys as to what the law may be, must be disregarded by you, if they are in conflict with my charge.)

B. Role of the Court
I sit here as the judge of the law. As part of this responsibility, I have made various rulings and statements throughout this trial. Do not view these rulings and statements as clues about how I think this case should be decided. They are not. They are based solely on my understanding of the law and rules of evidence and they do not reflect any opinions of mine about the merits of this case. Even if they did, you should disregard them, because it is your role to decide this case, not mine.

C. Role of the Attorneys
The lawyers are here as advocates for their clients. In their opening statements and in their summations they have given you their views of the evidence and their arguments in favor of their clients's position. While you may consider their comments, nothing that the attorneys say is evidence and their comments are not binding upon you. (In addition, you must not decide this case based on the performance of the attorneys.)

D. Role of the Jury
You sit here as judges of the facts. You alone have the responsibility of deciding the factual issues in this case. It is your recollection and evaluation of the evidence that controls. If the attorneys or I say anything about the facts in this case that disagrees with your recollection of the evidence, it is your recollection that you should rely on.
Your decision in this case must be based solely on the evidence presented and my instructions on the law.

E. The Evidence
The evidence in this case consists of [refer to appropriate items]:
1. the testimony that you heard from the witness (including any videotaped testimony);
2. the exhibits that have been marked into evidence;
3. the deposition testimony and answers to interrogatories that were read into the record;
4. the stipulations and admissions that were placed on the record. As you recall, the stipulation and admissions are facts that the parties agree are true. Therefore, you can accept all admissions and stipulations as true in your deliberations.

(Use when applicable)

Any testimony that I have stricken from the record is not evidence and should not be considered by you in your deliberations. This means that even though you may remember the testimony you are not to use it in your discussions or deliberations.

(Use when applicable)

Further, if I gave a limiting instruction as to how to use certain evidence, that evidence must be considered by you for that purpose only. You cannot use it for any other purpose. [You may repeat limiting instructions if appropriate.]

F. Contention of the Parties
[Explain the contentions of the parties.]

G. Burden of ProofSee footnote 2
The burden of proof is on the plaintiff/each party to establish his/her/their claim by a preponderance of the evidence. In other words, if a person makes an allegation then that person must prove the allegation.
In this action, the plaintiff ( name ) has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following issues:

[Explain issues raised by plaintiff.]

The defendant ( name ) has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following issues:

[Explain issues raised by defendant.]

H. Preponderance of the Evidence (short version)See footnote 3
The term "preponderance of the evidence" means that amount of evidence that causes you to conclude that the allegation is probably true. To prove an allegation by the preponderance of the evidence, a party must convince you that the allegation is more likely true than not true.
If the evidence on a particular issue is equally balanced, that issue has not been proven by a preponderance of the evidence. Therefore, the party having the burden of proving that issue has failed with respect to that particular issue.

I. Preponderance of Evidence (long version) (2/98)
The party with the burden of proof has the burden of providing his/her/its claim by a preponderance of the evidence. If the party fails to carry that burden, the party is not entitled to your favorable decision on that claim. To sustain the burden, the evidence supporting the claim must weigh heavier and be more persuasive in your minds than the contrary evidence. It makes no difference if the heavier weight is small in amount. As long as the evidence supporting the claim weighs heavier in your minds, then the burden of proof has been satisfied and the party who has the burden is entitled to your favorable decision on that claim.
However, if you find that the evidence is equal in weight, or if the evidence weighs heavier in your minds against the party who has the burden, then the burden of proof has not been carried and the party with the burden is not entitled to your decision on that claim.

NOTE
The following bracketed statements are different descriptions of the concept of burden of proof. Use the statement(s) that are applicable.

[When I talk about weighing the evidence, I refer to its capacity to persuade you. I do not mean that you are to count the number of witnesses presented by each side or measure the length of their testimony. The concept of weighing the evidence refers to its quality and not its quantity.]
[In order to decide whether the burden of proof has been carried, you are to sift through the believable evidence and determine the persuasive weight which you feel should be assigned to it.]
[The right of each party to have the other party bear the required burden of proof is a substantial one and is not a mere matter of form.]
[Proof need not come wholly from the witnesses produced by the party having the burden of proof, but may be derived from any believable evidence in the case.]
[Proof of "possibility" as distinguished from "probability" is not enough.]

J. Direct and Circumstantial Evidence or Inferences [Choose one]
1. Direct and Circumstantial Evidence
Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as the testimony of an eyewitness. Circumstantial evidence (sometimes called inferences) consists of a chain of circumstances pointing to the existence of certain facts. Circumstantial evidence is based upon deductions or logical conclusions that you reach from the direct evidence.
(Let me give you an example of direct and circumstantial evidence. If a witness testified that he/she observed snow falling last night, that would be an example of direct evidence. On the other hand, if a witness testified that there was no snow on the ground before going to sleep and that when he/she arose in the morning the ground was snow covered, you could infer from these facts that it snowed during the night. That would be an example of circumstantial evidence.)
You may consider both direct and circumstantial evidence in deciding this case. The law permits you to give equal weight to both, but it is for you to decide how much weight to give to any evidence.

2. Inferences
When deciding this case, you are permitted to draw inferences from the evidence. Inferences are deductions or logical conclusions drawn from the evidence. Use logic, your collective common knowledge and your common sense when determining what inferences can be made from the evidence.

K. Credibility (short version)
You will have to decide which witnesses to believe and which witnesses not to believe. Regardless of whether the witness is a lay person or expert, you may believe everything a witness said or only part of it or none of it.
In deciding what testimony to believe, you may take into consideration: 1. the witness' interest, if any in the outcome of this
case;
2. the accuracy of the witness' recollection;
3. the witness' ability to know what he/she is talking about;
4. the reasonableness of the testimony;
5. the witness' demeanor on the stand;


6. the witness' candor or evasion;
7. the witness' willingness or reluctance to answer;
8. the inherent believability of the testimony;
9. the presence of any inconsistent or contradictory statements.

L. Credibility (long version)
In deciding the facts of this case, you will have to decide which witnesses to believe and which witnesses not to believe. You may believe everything a witness says or only part of it or none of it.
In deciding what to believe here are some factors you may want to consider.
1. Does the witness have an interest in the outcome of this case?
2. How good and accurate is the witness' recollection?
3. What was the witness' ability to know what he/she was talking about?
4. Were there any contradictions or changes in the witness' testimony? Did the witness say one thing at one time and something different at some other time? If so, you may consider whether or

not the discrepancy involves a matter of importance or whether it results from an innocent mistake or willful lie. You may consider any explanation that the witness gave explaining the inconsistency.
5. You may consider the demeanor of the witness. By that I mean the way the witness acted, the way the witness talked, or the way the witness reacted to certain questions.
6. Use your common sense when evaluating the testimony of a witness. If a witness told you something that did not make sense, you have a right to reject that testimony. On the other hand if what the witness said seemed reasonable and logical, you have a right to accept that testimony.
7. Is the witness' testimony reasonable when considered in the light of other evidence that you believe?

M. False in One - False in AllSee footnote 4
[A trial judge has the discretion to give this charge in any situation in which the judge reasonably believes a jury may find a basis for its application.

See State v. Ernst, 32 N.J. 567 (1960). When given, this charge usually will follow the section on credibility.]

(Sample l)

If you believe that any witness deliberately lied to you, on any fact significant to your decision in this case, you have the right to reject all of that witness's testimony. However in your discretion you may believe some of the testimony and not believe other parts of the testimony.

(Sample 2)

If you believe that any witness or party willfully or knowingly testified falsely to any facts significant to your decision in the case, with intent to deceive you, you may give such weight to his or her testimony as you may deem it is entitled. You may believe some of it, or you may, in your discretion, disregard all of it.

N. Liability
[Set forth the liability portion of the charge here. In a general negligence case be sure to include in the charge the definition of negligence (5.10),

proximate cause (chapter 7) and, where applicable, the comparative negligence/ultimate outcome charge (8.21) as well as the substantive areas of the law.]

O. Damages
I shall now instruct you on the law governing damages in the event you decide the liability issue in favor of plaintiff ( name ).
The fact that I instruct you on damages should not be considered as suggesting any view of mine about which party is entitled to prevail in this case. Instructions on damages are given for your guidance in the event you find that the plaintiff ( name ) is entitled to a verdict. I am required to provide instructions on damages in all cases where the trial includes a claim for damages.
The plaintiff ( name ) has the burden of establishing by a preponderance of the evidence each item of damages that he/she claims. The plaintiff must also prove that the damages were the natural and probable consequences of the defendant's negligence. The accident must have been a

proximate cause of the damages. Damages may not be based on conjecture or speculation.
In this case the plaintiff ( name ) is seeking the following types of damages [select the appropriate categories]:
1. medical expenses [Charge 6.llA.];
2. past and future lost wages [Charge 6.11D.];
3. pain, suffering, disability, impairment and loss of enjoyment of life [Charge 6.ll F. & G.].
In addition, the plaintiff's spouse ( name ) is seeking compensation in what we call a per quod claim [Charge 6.12].
I will now discuss each category of damages with you. [Be sure to include the life expectancy charge 6.11I. whenever there is a claim of permanency.]

P. No Prejudice, Passion, Bias or Sympathy
Your oath as jurors requires you to decide this case fairly and impartially, without sympathy, passion, bias or prejudice. You are to decide this case based

solely upon the evidence that you find believable and in accordance with the rules of law that I give you.
(Sympathy is an emotion which is normal for human beings. No one can be critical of you for feeling some degree of sympathy in this matter. However, that sympathy must play no part in your thinking and in the decision you reach in the jury room.)
(Similarly, your decision must not be based upon bias or prejudice which you might have developed during the trial, for or against any party.)
(Your duty is to decide this case impartially and a decision based on sympathy, passion, bias or prejudice would violate that duty.)

Q. Deliberations
You are not advocates for either party. You are judges of the facts. Your sole interest is to determine the truth from the evidence in the case.
It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without compromising your individual judgment. Each of you must decide the case for yourself, but

do so only after an impartial consideration of the evidence with the other jurors.

R. Alternates
There are now (seven/eight) of you in the jury box. Six of you will make up the jury which will deliberate and decide the case. The other(s) will be alternate jurors who will participate if one of the other jurors is unable to continue for some reason. Then the alternate will serve as a replacement. [See R. 1:8-2(d).]

S. Verdict
Since this is a civil case, any verdict of 5-1 or 6-0 is a legal verdict. Therefore, it is not necessary that all six jurors agree on each question. An agreement of any five jurors is sufficient. All six jurors must deliberate fully and fairly on each and every question, and all six jurors must determine and vote upon each question. It is not necessary that the same five jurors agree upon the answers to all questions. Whenever at least five jurors have agreed to any answer, that question has been decided, and you may move on to

consider the remaining questions in the case if it is appropriate to do so. All six jurors must participate fully in deliberating on the remaining questions. A juror who has been outvoted on any question shall continue to deliberate with the other jurors fairly, impartially, honestly and conscientiously to decide the remaining questions. Each juror must consider each question with an open mind.
When at least five of you have agreed upon a verdict, knock on the jury room door. Indicate to the attendant that you have reached a verdict and say nothing more. The attendant will escort you back to the jury box so that the court may receive your verdict.

T. Jury Verdict Sheet
I have prepared a jury verdict sheet which I believe should make your task simpler. I will be sending that sheet with you to the jury room. The sheet has questions that you must consider and answer within the framework of the instructions that I have given you. I will now review these questions with you. [Go over sheet.]
Answering the questions on this sheet will be your verdict.

U. Communications with Court (long version)
After you have begun deliberations, all communications are done by sending a note from your foreperson. Knock on the door and hand the note to the attendant. No member of the jury should communicate with anyone outside the jury room except in this fashion. No member of the jury should indicate at any time how the jury stands numerically or otherwise until after you have reached a verdict. When I receive your note that you have reached a verdict, the attorneys will be gathered, and I will have the entire jury into court to receive the verdict. [Note: You may have the foreperson read the verdict sheet or the judge may ask the question on the verdict sheet and have the foreperson respond and give the vote.]
Should you desire to communicate for any other reason, you must send a note in the same fashion. After I have your note, I will discuss it with counsel and then reply to you in open court on the record.

V. Communications with Court (short version)
If during your deliberations you wish to communicate with the court, or you would like me to repeat any part of the jury instruction, please write your

request or question and give the note to the attendant. I will respond as quickly as I can by having you in the courtroom on the record. I should caution you, however, that at no point until you reach your final verdict should you indicate to the attendant or anyone else what your vote has been on any question before you. That is a matter that only members of the jury should know until you have reached a verdict.

W. Thanking the Jury
Let me take this opportunity to thank you for your service on this jury. We realize this case has interfered with your daily lives and probably caused you some inconvenience. However, our judicial system could not function without people like you willing to serve on juries. It is a job that has to be done in order that people can resolve their differences by jury trial. We are extremely grateful for the time you have spent here.

X. Exceptions of Counsel
[TO COUNSEL] - Does Counsel wish to be heard at side bar? [If there are serious objections: "Since counsel have some comments about my
instructions, I'm going to excuse you while I consider their points. Do not begin to discuss the case because after I hear the lawyer's comments, I may change some of the things that I have said to you. Our discussion will take only a few moments, and then I'll bring you back."]
[See R. 1:7-2 which provides: "No party may urge as error any portion of the charge to the jury or omissions therefrom unless he objects thereto before the jury retires to consider its verdict, but opportunity shall be given to make the objection in open court, in the absence of the jury. If a party has no opportunity to object to a ruling, order or charge, the absence of an objection shall not thereafter prejudice him."]
[How individual judges handle charge conferences differs. Some give out a "draft charge" early on in the case to focus the attention of counsel. Then there is discussion on the record just before "closing arguments" when a final charge and the verdict sheet are decided.
Others prefer the informality of a "charge conference" in chambers. Then it is important for counsel to be given opportunity to place objections, if there be any, on the record before the jury is sent out. Whatever format the judge selects, he or she should be mindful of the Rule 1:7-2 and even after he
or she has given his or her charge, should ask counsel "if they have anything further before I send the jury out to deliberate". Sometimes in a complicated charge you may leave something out that counsel can correct.]

Y. Reduce Jury to Six [unless fewer than six or more than six will deliberate. R. 1:8-2(b) & (c)] (11/98)
[Explain that alternates must remain available so that they can be incorporated into the deliberating jury if a problem develops. Therefore, as to the alternates, they shall continue not to discuss the case.]

Z. Designate the Foreperson
[Explain that the foreperson is the first juror in the box after the alternates have been selected. The foreperson insures that each juror deliberates, writes any questions the jury may have for the court and marks the verdict and vote on the jury question sheet. When the jury returns to the court room, the foreperson must report the verdict to the court by giving the vote and answer to each of the questions on the jury verdict sheet as they are read by the court clerk.]



AA. Swear the Attendants
[Clerk to give oath.]

BB. Lawyers Check Exhibits [See R. 1:8-8]
[All exhibits that have been marked into evidence should be scrutinized by counsel and given to the attendant for delivery into the jury room. Exhibits marked for identification do not go into the jury room as they are not in evidence. Counsel are responsible to see that only exhibits marked into evidence go into the jury room.]

CC. Send Jury to Deliberate
[After the above steps have been concluded, the judge should read the following instructions before sending the jury to deliberate.]
"Ladies and Gentlemen: You may now retire to the jury room for your deliberations. Thank you."

DD. Receiving Verdict [R. 1:8-9; R. 1:8-10]
1. Roll Call

Court: "We will now take a roll call of the jury."
Clerk: "Members of the Jury, as your name is called, please answer `here'."
2. Taking Verdict
"M. (foreperson), has the jury reached a verdict?" [If "yes," proceed]. On question No. 1, was the vote 5-1 or 6-0? [If "yes," read question and request the answer.]

[Repeat procedure for each question]

3. Polling Jury
[Court must poll jury on each question where vote was 5 to 1. Ask attorneys if they want jury polled on unanimous questions. Read question, then ask:] "On this question, was your vote "yes" or "no?" [Call each juror and get their answer.] [Enter count upon the record.] [On damage question, when polling jury ask] "Do you agree or disagree with that amount?"
4. "Before discharging jurors, is there anything further, counselors?"
5. [Thank jurors and discharge them. See following section for language.]

6. Based on jury's verdict, I enter judgment for ( ). Request order of judgment to be submitted. (Optional.)
7. [Request that lawyers calculate prejudgment interest for tort action -- R. 4:42-11 -- and submit amount in order of judgment.] [Calculate from date complaint filed or 6 months after cause of action arises, whichever is later. In exceptional cases, the Court may suspend the running of such prejudgment interest.]
8. [Return evidence and transcripts to the attorneys.]

EE. Thanking and Discharging Jury
Ladies and gentlemen of the jury, the function that you have performed is one of the most important tasks that you will ever be called upon to fulfill. With the return of your verdict, your service in this case is complete.
I know that your stay with us has involved sacrifice on your part. I trust you leave here knowing that you have made a meaningful contribution to the judicial process and hope that you have enjoyed the experience.
You have been a serious, attentive and extremely diligent jury. It has been my pleasure to have worked with you. On behalf of everyone in the court room, the citizens of ( name ) County and the entire judicial system, I thank you each and everyone of you. We greatly appreciate your willingness to serve and your service.
You are now discharged. Thank you very much!

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Footnote: 1 Exceptions to this general charge are sections 7. Burden of Proof and 8. Preponderance of the Evidence. These sections should not be universally given in all causes of action, e.g., condemnation, employment discrimination, defamation, etc.

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Footnote: 2 T.P.1. - Civil 2.40 "Burden of Proof and Preponderance of Evidence", Tennessee Pattern Jury Instructions of the Committee of the Tennessee Judicial Conference (3rd Ed. 11/95).

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Footnote: 3 Id.

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Footnote: 4 Note: Do not use the words "false in one, false in all."

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Model Civil Jury Charges