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A Court’s Use Of The Term “And/Or” In Its Instructions To The Jury Is Improper

March 26, 2019

STELIOS STOUPAKIS reports on a recent unpublished decision from the Superior Court of New Jersey, Appellate Division, which reversed a Defendant’s convictions because the trial court’s use of the term “and/or” regarding evidence from two different counts was clearly capable of producing an unjust result.

The Appellate Division, in this case, reasserted the fundamental principle of proper jury charges as a necessity for a fair trial.  During a trial, the court will provide instructions to the jury.  Jury instructions may range anywhere from whether taking notes are allowed to advise the jury that certain evidence is only to be considered for a certain purpose to every element of a crime that must be established for a jury to convict a Defendant.  The court’s instructions to a jury must be perfectly clear, as they are the guidelines in which jurors are supposed to follow in an effort to reach a unanimous decision; thus, proper jury instructions are essential for a fair trial.

The Defendant, in this case, was convicted of two counts of third-degree possession of a controlled dangerous substance (“CDS”), specifically heroin, and for one count of possession with intent to distribute.  Specifically, a police investigation revealed the Defendant’s alleged involvement in the distribution of six packets of heroin outside of an apartment building and led to the seizure of 300 packets of heroin from the Defendant’s alleged apartment.  During that investigation, the police allegedly witnessed the Defendant hand a small white object to another individual.  The police then allegedly observed the Defendant enter the building and watched the other individual exchange the same white object for currency with another person.  These two individuals were also arrested and charged.  That arrest revealed six glassine envelopes of suspected heroin with a certain distinguishing label.  The police then obtained a warrant to search the suspected apartment of the Defendant.  Upon searching the Defendant’s apartment, the police discovered three hundred bags of heroin with the same distinguishing label as the heroin found in the earlier arrest. 

At trial, the initial six bags of heroin were marked into evidence as S-13, and the heroin found in Defendant’s apartment was marked into evidence as S-7.  Upon instructing the jury, the trial court, as per to each count, stated “[i]n order for you to find the [D]efendant guilty of the charge, the state must prove the following elements beyond a reasonable doubt.  That S-7 and/or S-13 in evidence is a controlled dangerous substance.”  There were additional references in the trial court’s instructions to the jury, of “and/or” between S-7 and S-13.  The Defendant appealed his convictions to the Appellate Division, arguing that he is entitled to reversal of his convictions because the court improperly instructed the jury that it could convict the Defendant of any of the charges if the jurors found beyond a reasonable doubt that he possessed the heroin admitted into evidence as S-7 “and/or” the heroin submitted into evidence as S-13.  The Appellate Division agreed with the Defendant’s argument and reversed his conviction and remanded for a new trial. 

The Appellate Division noted that a court has a duty to provide jurors with accurate instructions on the law as it is relevant to each case, as erroneous instructions regarding material aspects of a case can “unfairly prejudice the Defendant.”  Most significantly, using the term “and/or” in a fact pattern such as the one in this case created an opportunity for the Defendant to be convicted by a less than unanimous jury because jurors could have used either batch of heroin (S-7 or S-13) to convict on each count.  A unanimous agreement on each element of the charged offense is required to convict on the subject offense, and the use of the term “and/or” in the jury charges created a danger of a “patchwork verdict.”

Please contact Stelios Stoupakis if you have any questions or need assistance in connection with this subject.