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"and/or" jury instructions "hopelessly ambiguous"

02 February 2016

The Superior Court of New Jersey Appellate Division has ordered a new trial because the trial judge repeatedly used the phrase "and/or" while giving the jury instructions on how it should consider robbery and assault charges.

In State of New Jersey v Gonzalez, decided on 25 January 2016, Judge Fisher describes the trial judge's jury instructions as "hopelessly ambiguous and erroneous in important respects".

The defendant, Victor Gonzalez, had been convicted of robbery and aggravated assault and sentenced to an aggregate 19-year prison term.

"...we find the judge's repeated use of the phrase 'and/or' - in defining what the jury was obligated to determine - so confusing and misleading as to engender great doubt about whether the jury was unanimous with respect to some part or all aspects of its verdict or whether the jury may have convicted defendant by finding the presence of less than all the elements the prosecution was required to prove," Judge Fisher said when delivering the opinion of the court.

After citing several instances of the trial judge's use of the phrase "and/or" - often in the phrase "robbery and/or aggravated assault" -  Judge Fisher says clear and correct jury charges are essential for a fair trial.

While the defendant's lawyer did not object during the trial to the instructions, Judge Fisher said viewed as a whole and in light of the strength of the State's proofs, the jury charge was clearly capable of producing an unjust result.

Last updated on the 16th September 2019