88-89 (App. Div. 2000); see also State v. Fortin, 162 N.J.
517, 534 (2000); State v. Marrero, 148 N.J. 469, 495
(1997). The court’s limiting instruction should be
formulated carefully to explain precisely the permitted
and prohibited purposes of the evidence. State v. Cofield,
127 N.J. 328, 341 (1992).
7. Defendant’s Election Not to Testify
In Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112
(1981), the Supreme Court held that a judge must, if the
defendant asks, instruct the jury that no adverse inference
is to be drawn from defendant’s failure to testify. Thus,
a trial judge must give a “no-adverse-inference”
instruction if the defendant so requests. See State v. Haley,
295 N.J. Super. 471, 475 (App. Div. 1996) (error in
failing to give such a charge when requested is per se
reversible error). Although such an instruction should
only be given at the request of defendant, it is not
constitutional error to submit the charge over
defendant’s objection. Lakeside v. Oregon, 435 U.S. 333,
98 S.Ct. 1091 (1978); State v. Lynch, 177 N.J. Super. 107
(App. Div. 1981), certif. denied, 87 N.J. 347 (1981).
In a joint trial, where one co-defendant requests such
an instruction and the other objects, the instruction
should be given despite the objection. State v. Jackson,
204 N.J. Super. 13, 21 (App. Div. 1983), aff’d on other
grounds, 99 N.J. 379 (1985); see also State v. McNeil, 164
N.J. Super. 27 (App. Div. 1978), certif. denied, 79 N.J.
497 (1979).
8. Voluntariness of Defendant’s Confession
When a defendant’s confession is introduced at trial,
the jury must be apprised of its duty to decide whether
in view of all of the circumstances the defendant’s
confession is true, without any knowledge that the court
has already determined the issue of voluntariness. State
v. Hampton, 61 N.J. 250, 272 (1972). If the jury finds
that the confession is not true, then they must disregard
it when considering defendant’s guilt. Id.
The Hampton rule is codified in N.J.R.E. 104©
which provides an pertinent part: “[i]f the judge admits
the statement the jury shall not be informed of the
finding that the statement is admissible but shall be
instructed to disregard the statement if it finds that it is
not credible.”
In State v. Jordon, 147 N.J. 409, 425 (1997), the
Supreme Court ruled that the Hampton charge is
required, whether requested or not, whenever a
defendant’s oral or written statements, admissions, or
confessions are introduced into evidence. The omission
of a Hampton charge is not per se reversible error. It is
reversible error only where the omission is clearly capable
of producing an unjust result. See State v. Harris, 156 N.J.
122, 183 (1998); State v. Crumb, 307 N.J. Super. 204,
250 (App. Div. 1997), certif. denied, 153 N.J. 215
(1998).9. Reasonable Doubt
In State v. Medina, 147 N.J. 43 (1996). cert. denied,
520 U.S. 1190 (1997), the Supreme Court adopted a
reasonable doubt charge from which trial courts may not
deviate. See State v. Dreher, 302 N.J. Super. 408, 468
(App. Div. 1997), certif. denied, 152 N.J. 10 (1997), cert.
denied, 524 U.S. 943 (1998). The Court in Medina
strongly stated that deviations from this standard
“reasonable doubt” charge should not be used. See State
v. Fuqua, 303 N.J. Super. 40, 45 (App. Div. 1997).However, deviation from the standard charge is not
necessarily reversible error. State v. Dreher, 302 N.J.
Super. at 468-69. See State v. Medina, 147 N.J. at 53
(because charge as a whole conveyed State’s burden, it did
not constitute plain error).10. After Substitution of a Juror
R. 1:8-2(d)(1) mandates that after the substitution
of an alternate juror the trial judge instruct the jury to
recommence deliberations. State v. Trent, 79 N.J. 251,
257 (1979). The failure to comply with this rule
constitutes plain error. State v. Anderson, 173 N.J. Super.
75 (App. Div.), certif. denied, 85 N.J. 124 (1980).H. Questions by the Jury
1. As to Jury Instructions
A trial judge has a duty to respond to questions asked
by the jury. State v. Middleton, 299 N.J. Super. 22, 30
(App. Div. 1997); State v. Marcus, 294 N.J. Super. 267,
291 (App. Div. 1996), certif. denied, 157 N.J. 543
(1998) (proper response when jury asks about irrelevant
matter); State v. Conway, 193 N.J. Super. 133, 157 (App.
Div. 1984), certif. denied, 97 N.J. 650 (1984). When a
jury requests clarification, the trial judge is obligated to
clear the confusion. State v. Graham, 285 N.J. Super.
337, 342 (App. Div. 1995); State v. Conway, supra.
Depending upon the question propounded, the court
may respond affirmatively or negatively, or opt to
recharge the jury on selected portions of the instructions.