Rosenberger v. Rector and Visitors of the University of
Virginia, 515 U.S. 819 (1995). University student
organization which published newspaper with Christian
editorial viewpoint brought action against university,
challenging denial of funds from fund created by
university to make payments to outside contractors for
printing costs of publications of student groups. The
Supreme Court held that: (1) denial of funding
amounted to viewpoint discrimination; (2) exclusion of
several views on an issue is just as offensive to the First
Amendment as the exclusion of only one; and (3) scarcity
of funds does not permit university to discriminate on the
basis of viewpoint.
FLIGHTFLIGHTFLIGHTFLIGHTFLIGHT
(See also, ESCAPE, RESISTING ARREST,
this Digest)
I. INSTRUCTION TO JURY See MODEL JURY
CHANGES (CRIMINAL), FLIGHT (11/18/91)
In early cases the subject of unexplained flight raised
a presumption of guilt akin to the presumptions deemed
to arise upon the fabrication of false evidence, or the
suppression of truth. State v. Harrington, 87 N.J.L. 713
(E & A 1915); State v. Jaggers, 71 N.J.L. 281 (E & A
1904). Later cases referred to an inference of guilt, State
v. Manzel, 136 N.J.L. 233 (Sup. Ct. 1947), aff’d p.c., 137
N.J.L. 616 (E & A 1948), or expressed the doctrine as a
circumstance tending to prove consciousness of guilt.
State v. Cenalonza, 18 N.J. Super. 154, 161 (App. Div.
1952); State v. D’Amato, 26 N.J. Super. 185 (App. Div.
1953). In State v. Petrolia, 45 N.J. Super. 230 (App. Div.
1957), the Court held that it is preferable to instruct the
jury in terms of “unexplained flight as a circumstance
tending to prove a consciousness of guilt.” If a defendant
does not submit an explanation for flight, consistent with
a clear conscience as to guilt, which is given credence by
the jury, the jury may infer from the flight consciousness
of guilt on the part of the defendant. State v. Leak, 128
N.J. Super. 212 (App. Div. 1974). The jury should not
draw any inference relative to guilt against the defendant.
Id.In State v. Sullivan, 43 N.J. 209 (1964), the Court
distinguished between flight and mere departure.
Departure from the crime scene does not warrant an
inference of guilt. State v. Long, 119 N.J. 439 (1990).
For departure to take on the legal significance of flight,
there must be circumstances present and unexplained
which, in conjunction with leaving, reasonably justify an
inference that it was done with a consciousness of guilt
and pursuant to an effort to avoid an accusation based on
that guilt. Id. Thus, the jury is required to find not only
departure, but also the motive which would turn the
departure into flight. State v. Knight, 145 N.J. 233
(1996); State v. Wilson, 57 N.J. 39 (1970).In State v. Wilson, supra, the Court rejected
defendant’s contention that a charge regarding flight can
only be given where the accused flees from custody or
where he is found hiding after the crime. A jury question
is presented if defendant departed the scene because of a
consciousness of guilt. Accord, State v. Canery, 144 N.J.
Super. 527 (App. Div. 1976), certif. denied, 74 N.J. 259