State v. Anderson

603 A.2d 928, 127 N.J. 191, 1992 N.J. LEXIS 20

• Court: Supreme Court of New Jersey
• Decided: March 16, 1992
• Status: Published

Opinions

The opinion of the Court was delivered by

CLIFFORD, J.

When called on to apply a long-established rule of law, courts sometimes become afflicted with a certain inertia. The resultant ennui can blind courts to the desirability of reassessing the rule’s value and underlying rationale. This appeal is centered on just such a long-established and essentially unchallenged rule. The vast majority of jurisdictions, including New Jersey, have faithfully held that the question of materiality in a prosecution for perjury is one to be decided by the judge rather than the jury. See Annotation, Materiality of Testimony Forming Basis of Perjury Charge as Question for Court or Jury in State Trial, 37 A.L.RAth 948, 951 (1985 & Supp.1990). Many states, again including New Jersey, have codified that rule in their statutes or rules of court. See, e.g., N.J.S.A. 2C:28-1 (the perjury statute). What those many jurisdictions have not done, however, is scrutinize the reasoning behind the rule.

The few jurisdictions that have undertaken a fresh examination have concluded that the longstanding rule is fundamentally flawed, its foundation without footings. See United States v. Taylor, 693 F.Supp. 828 (N.D.Cal.1988), appeal dismissed, 881 F.2d 2d 840 (9th Cir.1989); Commonwealth v. McDuf fee, 379 Mass. 353, 398 N.E.2d 463 (1979); People v. Clemente, 285 App.Div. 258, 136 N.Y.S.2d 202 (1954), aff'd, 309 N.Y. 890, 131 N.E.2d 294 (1955); see also People v. Hedgecock, 51 Cal.3d 395, 272 Cal.Rptr. 803, 795 P.2d 1260 (1990) (holding that materiality is an issue for the jury in peijury prosecution based on errors or omissions in disclosure statements required by the Political Reform Act). But see State v. Sands, 123 N.H. 570, 467 A.2d 202, 215-18 (1983) (concluding that materiality involves complex relationship between alleged false statements and underlying proceeding and is therefore question of law). Having reexamined the rule ourselves, we conclude that the provision in N.J.S.A. 2C:28-1b declaring materiality to be a question of law irreconcilably conflicts with the constitutional right of an accused to have a jury determine the existence beyond a reasonable doubt of each essential element of a crime before he or she is convicted. See State v. Ingenito, 87 N.J. 204, 217, 432 A.2d 912 (1981). Materiality is an element of the crime of perjury. As such, we presume that its proof beyond a reasonable doubt must be determined by the trier of fact. Ibid. Because we can discern no compelling reason to withdraw from the jury the determination of materiality, we hold that the provision in N.J.S.A. 2C:28-lb declaring that determination to be a question of law violates the New Jersey Constitution. We also conclude that the failure to submit materiality to the jury cannot be considered harmless under the circumstances of this case, wherefore we vacate defendant’s conviction for perjury and remand the cause to. the Law Division.

I

This case arisés from defendant’s testimony during the November 1986 capital-murder trial of his cousin, Billy Gilbert Smith. Smith had been charged with the murder of Dupree Mosley, a bystander to a dispute between Smith and Horace Greene. On January 30, 1985, on the grounds of a New Brunswick housing project, Greene taunted Smith and chased him with a knife. According to the State, Smith then obtained a rifle, returned to the grounds, and, with Anderson by his side, fired a shot at Greene. The bullet missed Greene but struck and killed Mosley.

Based on information received at the crime scene that evening, the New Brunswick Police suspected Anderson of having committed the shooting. At police headquarters, where he had been taken for questioning, Anderson told the interrogating detective not only that he had not committed the shooting but that he did not know who had. Subsequently Smith confessed to the shooting. After that confession, Anderson gave to the authorities a sworn nine-minute statement indicating that Smith had indeed fired the fatal shot.

Smith was charged with capital murder and related weapons offenses. His trial in January 1986, during which Anderson testified as a prosecution witness, resulted in a hung jury. After that trial, Anderson’s family members became alienated from him and criticized him for having testified against his cousin.

At Smith’s second trial in November 1986 the prosecution again produced Anderson as a State’s witness. Anderson’s testimony, however, diverged from his previous statements. Contrary to his earlier version, Anderson testified that he, and not Smith, had fired the rifle but that he had not hit anyone. Confronted with that about-face, the prosecutor directed Anderson’s attention to his sworn statement given shortly after the occurrence. Anderson denied having made that statement, maintaining instead that the police had fabricated it.

That evening at the correctional facility where Anderson was incarcerated for a parole violation, he had second thoughts about his testimony. He told a corrections officer that he had testified falsely at Smith’s trial because of pressure exerted on him by his family, and said that he wanted to change his testimony. The next morning Anderson repeated to an investigator that he had lied in court because of family pressure and because he was angry at the prosecutor but now wanted to tell the truth, to wit, that his cousin had fired the rifle. That information was conveyed to the prosecutor by a note during closing arguments. Following the summations but before the jury charge, the prosecutor brought the note to the attention of the court but so far as the record discloses sought no remedial action. The jury, unaware of Anderson’s desire to recant his testimony, returned a verdict of “not guilty” on the capital-murder indictment of Smith. The facts thus depict a truly material perjury: there is a strong possibility that the jury acquitted a capital-murder defendant because of Anderson’s false testimony.

The State charged Anderson with two counts of perjury during the second Smith trial. Count One of the indictment was based on his testimony claiming that he had fired the rifle shot. Count Two referred to his testimony denying that he had made a statement to the police about the shooting. After pleading not guilty, Anderson went to trial before a judge and a jury.

At the conclusion of the State’s case, the court ruled that both of the alleged falsifications had been material. Thereafter, prior to summations, it also ruled that defense counsel would not be allowed to argue to the jury the issue of the materiality of the falsification alleged in Count Two of the indictment, defendant having conceded the materiality of the statement at issue in Count One. Defense counsel moved for a ruling that the perjury statute was unconstitutional because it violated defendant’s right to have the jury decide all questions of fact. Guided by Rule 3:10-3, which addresses defenses and objections that can be raised only before or after trial, the court declined to rule on defendant’s motion at that time.

In its instruction to the jury regarding the elements of perjury, the court made no mention of materiality, nor did it tell the jury that it had determined that the alleged falsifications were material as a matter of law. Rather, the court charged the jury, among other things, that the prosecution had to prove only three elements: first, that defendant had made the statement in an official proceeding; second, that the statement had been made under oath or affirmation; and third, that the statement was false and defendant knew it was false when made. The jury acquitted Anderson on Count One (I shot the rifle) and convicted him on Count Two (I did not give a statement to the police).

Prior to sentencing, defendant moved for a new trial, reasserting his claim that the perjury statute is unconstitutional. In denying that motion the court reasoned that because the Legislature could constitutionally pass a statute that made perjury a crime without including materiality as an element of that crime, it certainly could make materiality a matter to be decided by the court if the Legislature did decide to define perjury to include a showing of materiality. Hence, the court concluded that the delegation of that factual determination to a judge rather than a jury did not make the statute unconstitutional. The court then sentenced defendant to imprisonment for five years with two and one-half years of parole ineligibility to run consecutively to the term he was already serving for a parole violation.

Defendant appealed, raising over a dozen claims for relief. The Appellate Division found that the only claim meriting consideration was defendant’s argument that by deeming materiality a question of law and therefore a question to be decided by the court, the perjury statute violates an accused's right to trial by jury. In affirming defendant’s conviction in an unreported opinion, the Appellate Division expressed the view that withholding the question of materiality from consideration by the jury is unconstitutional, and agreed with the misgivings set forth in Judge Baime’s concurring opinion in State v. Whalen, 235 N.J.Super. 506, 514-17, 563 A.2d 457 (App.Div.1989). Nevertheless, it felt constrained to uphold the validity of the statute:

[Although we have serious doubts about the conclusions reached by the majority in [Wkalen] and, in fact are entirely sympathetic with Judge Baime’s concurring opinion that the perjury statute “is repugnant to the right to a jury trial,” we share his view that we are "powerless to act upon that position in light of settled case law.” [Id. at 617, 663 A.2d 457.]

We granted defendant’s petition for certification, 122 N.J. 411, 585 A.2d 407 (1990), limited to the issue of the constitutionality of the perjury statute.

II

The statute at issue here defines the offense of perjury as follows:

A person is guilty of perjury, a crime of the third degree, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he does not believe it to be true. [N.J.S.A. 2C:28-1a.]

Proof of perjury, then, requires four independent showings: (1) making a false statement (2) material to the proceeding (3) under oath in an official proceeding (4) knowing the statement to be untrue. See II Final Report of the N.J. Criminal Law Revision Comm’n 272 (1971) (reprinted in J. Cannel, N.J. Criminal Code Annotated 2C:28-1 comment 2 (1991)). At oral argument the amicus, Attorney General, acknowledged that materiality is an essential element of the crime of perjury, despite his earlier contrary position, See ibid. (“A required element of perjury under existing law is that of ‘materiality.’ ”); accord State v. Ellenstein, 121 N.J.L. 304, 324, 2 A.2d 454 (E. & A.1938); State v. Scott, 12 N.J.Misc. 278, 171 A. 311 (Sup.Ct. 1934) (addressing materiality as an element of subornation of perjury). The statute addresses several aspects of materiality specifically:

Falsification is material, regardless of the admissibility of the statement under rules of evidence, if it could have affected the course or outcome of the proceeding or the disposition of the matter. It is no defense that the declarant mistakenly believed the falsification to be immaterial. Whether a falsification is material is a question of law. [N.J.S.A. 2C:28 — 1b.]

This appeal focuses on that last sentence and its necessary implication that materiality is to be determined by the court and not the jury.

Defendant bases his challenge on the New Jersey Constitution, which states: “The right of trial by jury shall remain inviolate,” N.J. Const, art. I, ¶ 9, and “[i]n all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury.” Id. 1110. In State v. Ingenito, supra, 87 N.J. 204, 432 A.2d 912, we explained the scope and recited the history of the right to trial by jury, tracing its underpinnings back to the Magna Carta and beyond. Id. at 210, 432 A.2d 912. We stated that “the right to a jury in a criminal trial ordinarily includes the right to have the same trier of the fact decide all of the elements of the charged offense.” Id. at 217, 432 A.2d 912. In Ingenito we held that the application of collateral estoppel to a defendant in a criminal case constituted an invasion of the factfinding function of the jury.

If an essential element of a case is presented as concluded or settled, effectively withholding from the jury crucial underlying facts, the jury’s capacity to discharge fully its paramount deliberative and decisional responsibilities is irretrievably compromised. It follows in such circumstances that the defendant’s jury right will have been, commensurately, abridged. [Id. at 213, 432 A.2d 912.]

We have characterized the jury’s responsibility to decide the facts as “nondelegable and nonremovable.” Id. at 211, 432 A.2d 912. Hence, an accused is constitutionally entitled to have a jury find each factual element beyond a reasonable doubt before he or she is convicted. See State v. Ragland, 105 N.J. 189, 194, 519 A.2d 1361 (1986); Ingenito, supra, 87 N.J. at 217, 432 A.2d 912; State v. Sinclair, 49 N.J. 525, 542-43, 231 A.2d 565 (1967); State v. Rudd, 49 N.J. 310, 314, 230 A.2d 129 (1967); State v. Schneiderman, 20 N.J. 422, 426, 120 A.2d 89 (1956). Furthermore, a court may never instruct a jury to find against a criminal defendant on any factual issue that is an element of the crime charged. See Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946); State v. Humphreys, 54 N.J. 406, 414-16, 255 A.2d 273 (1969); State v. Corby, 28 N.J. 106, 115, 145 A.2d 289 (1958). Thus, in Humphreys this Court invalidated a statutory provision creating a presumption of possession of a firearm by all persons occupying a vehicle in which the weapon is present. The Court noted that the provision could be attacked as “an unfair limitation on the defendant’s right to a jury trial. The ‘deliberative function of the jury is improperly circumscribed * * * by [its] being told that the presumption springs into existence as a matter of law * * *.’ ” 54 N.J. at 416, 255 A.2d 273 (quoting Corby, supra, 28 N.J. at 115, 145 A.2d 289).

Intertwined with the right to a jury trial is the federal constitutional right to due process of law. See Ingenito, su pra, 87 N.J. at 214-15 & n. 3, 432 A.2d 912. See United States Constitution amendment XIV, section 1; New Jersey Constitution article I, paragraph 1. The United States Supreme Court has held that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970); accord Cage v. Louisiana, 498 U.S.-,-, 111 S.Ct. 328, 329, 112 L.Ed.2d 339, 341 (1990) (quoting Winship); Carella v. California, 491 U.S. 263, 265, 109 S.Ct. 2419, 2420, 105 L.Ed.2d 218, 221 (1989) (“The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense.”). Similarly, this Court has held that due process requires that an accused receive a trial “in which the jury must find that the State has proved each and every material element of the crime beyond a reasonable doubt.” State v. Ragland, supra, 105 N.J. at 193-94, 519 A.2d 1361 (citing State v. Grunow, 102 N.J. 133, 145 n. 5, 506 A.2d 708 (1986); State v. Toscano, 74 N.J. 421, 442-43, 378 A.2d 755 (1977)). Both the tenets of due process and the right to a jury trial mandate that here materiality, as an element of the offense of perjury, must be found beyond a reasonable doubt by the jury.

The State points out that the right to a jury under our constitution has been interpreted as no more than co-extensive with the scope of that right under the Sixth Amendment of the United States Constitution. See State v. Whalen, supra, 235 N.J.Super. at 517, 563 A.2d 457 (Baime, J.A.D., concurring) (finding nothing in New Jersey law to justify more expansive rights to a trial by jury under state law). It then argues that because the Supreme Court has recently reiterated that the “ ‘materiality of what is falsely sworn, when an element in the crime of perjury, is one for the court,’ ” Kungys v. United States, 485 U.S. 759, 772, 108 S.Ct. 1537, 1547, 99 L.Ed.2d 839, 854 (1988) (quoting Sinclair v. United States, 279 U.S. 263, 298, 49 S.Ct. 268, 273, 73 L.Ed. 692, 700 (1929)), there is no basis for us to hold otherwise.

Although we are well aware of the precedential effect of Supreme Court pronouncements on issues of federal law, see Battaglia v. Union County Welfare Board, 88 N.J. 48, 60, 438 A.2d 530 (1981), cert. denied, 456 U.S. 965, 102 S.Ct. 2045, 72 L.Ed.2d 490 (1982); State v. Coleman, 46 N.J. 16, 34, 214 A.2d 393 (1965), cert. denied, 383 U.S. 950, 86 S.Ct. 1210, 16 L.Ed.2d 212 (1966), we hesitate to place conclusive weight behind the Court’s statement in Kungys. We note that the statute at issue there does not provide for a trial by jury, see Luria v. United States, 231 US. 9, 27-28, 34 S.Ct. 10, 15, 58 L.Ed. 101, 107 (1913); consequently, the issue would be resolved by the court no matter how characterized. Although the Court in Kungys requested additional briefs on whether materiality is a question of law or fact, its focus was on the proper scope of review. 485 U.S. at 772, 108 S.Ct. at 1547, 99 L.Ed.2d at 854. The Court saw “no reason not to follow what has been done with the materiality requirement under other statutes,” ibid., primarily because there was no occasion to address either the constitutional jury-right issue or the related due-process issue.

We are not convinced that should the Supreme Court squarely address the issue, it would find the rule of Sinclair reconcilable with its construction of the fundamental right to a trial by jury. Hence, we need not explicate a rationale for “expanding” the right to a jury under state law, because the court in Kungys did not address the issue before us today.

Ill

We recognize that the vast majority of courts, including our own, considering the issue have found that the determination of materiality in perjury cases is a question of law to be resolved by the court. See Annotation, supra, 37 A.L.R.4th at 951. Our contrary conclusion invites the question: how could so many have been so wrong for so long? The answer, we believe, comes in three parts. First, the early cases erroneously equated materiality for purposes of the perjury statute with materiality as a preliminary determination on the admissibility of evidence. Because evidentiary questions of materiality had always been decided by the court, those courts that addressed the issue made the improvident analytical assumption that materiality as an element of peijury must likewise be decided as a matter of law. For example, in People v. Lem You, 97 Cal. 224, 32 P. 11 (1893), the California Supreme Court noted that when a party offers evidence and its adversary objects on the basis of materiality, the question is clearly for the court. Without further analysis, it then stated that the procedure is exactly the same when the issue is the materiality of allegedly false testimony in a perjury trial. Ibid. 32 P. at 12 (“question of the materiality of evidence, no matter when or how it may arise, is always one of law for the court, and not of fact for the jury”).

The reason for treating materiality as an element of perjury differently from materiality as an initial evidentiary determination is well set forth in People v. Clemente, supra, 136 N.Y.S.2d 202, 206 (1954):

What the law really does, in the interest of a fair trial and reasonably controlled trial, is to vest in the court a preliminary power of ruling on the materiality of evidence to the end that evidence which a jury should not consider at all may be excluded from their consideration altogether. A ruling in favor of materiality means no more than that the jury may consider the evidence. Its materiality then becomes a question of fact for the jury. And certainly materiality as a substantive element of the crime of perjury is something more than materiality considered in an evidentiary ruling by the court. Materiality in such a case becomes a matter for ultimate determination by the [jury].

We are not persuaded to the view, therefore, that the nature of the subject requires the removal of the question of materiality from the jury’s consideration or reserving it to the court.

See State v. Winters, 140 N.J.Super. 110, 116, 355 A.2d 221 (Law Div.1975) (materiality as an element of perjury certainly “is something other than materiality in the evidentiary sense”).

The issue that a court decides in determining the materiality of an allegedly false statement is whether the statement “could have affected the course or outcome of the proceeding or the disposition of the matter.” N.J.S.A. 2C:28-lb. Restated, the question is whether that statement could have affected the prior jury’s verdict. That determination is clearly within the province and capabilities of the members of a jury. See State v. Whalen, supra, 235 N.J.Super. at 512 n. 3, 563 A.2d 457 (“we have no doubt that jurors are capable of deciding the issue [of materiality] if it is presented properly”). As stated in Clemente,

[wjhile as lawyers we are accustomed to thinking of materiality as a matter for judicial ruling, there is nothing in the nature or quality of materiality which makes it essentially a legal concept or removes it from the ken of a layman’s discernment and determination. The word “material” and the idea of materiality are commonly understood, and every day judgments on a variety of subjects are made upon the basis of a layman’s sense of materiality. [136 N.Y.S.2d at 205.]

Second, the rule that characterized materiality in perjury cases as a question of law became well established as later opinions cited the early cases, apparently with little or no independent analysis. See State v. Lupton, 102 N.J.L. 530, 534, 133 A. 861 (Sup. Ct. 1926) (“It is settled law that on a trial for penury, the question whether evidence is material to the issue is solely for the court to determine and not for the jury.”); Carroll v. United States, 16 F.2d 951, 954 (2d Cir.1927) (cited approvingly in Sinclair); Sinclair v. United States, supra, 279 U.S. at 298, 49 S.Ct. at 273-74, 73 L.Ed. at 700 (“Upon reasons so well known that their repetition is unnecessary it is uniformly held that relevancy is a question of law. And the materiality of what is falsely sworn, when an element in the crime of perjury, is one for the court.” (citations omitted)); United States v. Siegel, 263 F.2d 530, 532-33 (2d Cir.) (“It is scarcely necessary to add that ‘materiality’ is always a question for the court.”), cert. denied, 359 U.S. 1012, 79 S.Ct. 1147, 3 L.Ed.2d 1035 (1959). Thus, the allocation to the court of the determination of materiality became firmly entrenched in the law without having been subjected to detailed scrutiny or having been harmonized with the requirements of due process and the right to a jury trial.

Finally, faced with the seemingly overwhelming precedent, most courts have declined to reexamine the validity and soundness of the rule in light of more recent cases emphasizing the right of an accused to have the jury find all elements of a crime beyond a reasonable doubt. See, e.g., State v. Whalen, supra, 235 N.J.Super, at 512-13, 563 A.2d 457. In United States v. Nazzaro, 889 F.2d 1158 (1st Cir.1989), the defendant challenged his conviction on two counts of penury, claiming that the district court had erred in neglecting to submit the question of materiality to the jury. The court of appeals rejected that claim as “shopworn,” explaining that

[i]t is well settled, on the highest and best authority, that the materiality of perjurious testimony is within the exclusive domain of the court, not the jury. We have consistently followed this directive and deem ourselves firmly bound by the precedent. In any event, appellant has offered us no persuasive reason to depart from so established a principle. [Id. at 1166 (citations and footnote omitted).]

In fact, the defendant had relied on Taylor, supra, 693 F.Supp. 828; however, the court found that Taylor, “suggesting that Sinclair has been implicitly overruled, is thoroughly unconvincing. We decline to follow it.” 889 F.2d at 1166 n. 4.

Although we rest our holding that the question of materiality in perjury cases must be decided by the jury on state constitutional law, because the parties here have presented the issue solely as one of state law, we concur with Judge Lynch’s federal-law analysis of the issue in Taylor, supra, finding his treatment both thorough and persuasive: “ ‘We remain convinced that materiality is a factual question to be submitted to the jury with proper instructions like other essential elements of the offense, unless the court rules, as a matter of law, that no submissible case is made out by the Government on the issue of materiality.’” 693 F.Supp. at 844 (quoting United States v. Irwin, 654 F.2d 671, 677 n. 8 (10th Cir.1981), cert. denied, 455 U.S. 1016, 102 S.Ct. 1709, 72 L.Ed.2d 133 (1982)).

This Court has recognized that “the jury in a criminal prosecution serves as the conscience of the community and the embodiment of the common sense and feelings reflective of society as a whole.” Ingenito, supra, 87 N.J. at 212, 432 A.2d 912; accord Ragland, supra, 105 N.J. at 217-18, 519 A.2d 1361 (Handler, J., concurring in part and dissenting in part). “Society as a whole” has decided that the jury system is the way we as a civilized state go about choosing whether to punish someone. That proposition is taken so seriously that a judge may never direct a verdict of guilty, not on a single element nor in the face of overwhelming evidence of guilt. Ingenito, supra, 87 N.J. at 213, 432 A.2d 912; State v. Simon, 79 N.J. 191, 199, 398 A.2d 861 (1979). “The ‘question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury * * ” Ingenito, supra, 87 N.J. at 211, 432 A.2d 912 (quoting Bollenbach, supra, 326 US. at 614, 66 S. Ct. at 406, 90 L.Ed. at 355). There is a sound basis for the colorful expression that “our citizens generally prefer to have their fates determined by twelve fools rather than one.” State v. Breakiron, 210 N.J.Super. 442, 468-69, 510 A.2d 80 (App.Div.1986) (Baime, J.A.D., dissenting), aff'd in part and rev’d in part, 108 N.J. 591, 532 A.2d 199 (1987).

Because a jury is unquestionably qualified to decide what could influence a jury’s decision, and because the “right to a jury in a criminal trial ordinarily includes the right to have the same trier of the fact decide all of the elements of the charged offense,” Ingenito, supra, 87 N.J. at 217, 432 A.2d 912, our constitution requires that the question of materiality in a prosecution for perjury be submitted to the jury. The provision in the perjury statute declaring that “[wjhether a falsification is material is a question of law” must therefore be severed and stricken as in violation of article one, paragraphs nine and ten of the New Jersey Constitution. See Chamber of Commerce of the United States v. State, 89 N.J. 131, 162, 445 A.2d 353 (1982); N.J.S.A. 1:1-10.

IV

As we have endeavored to make clear, our holding rests on the syllogism that (a) the constitution requires that the jury decide each element of a crime beyond a reasonable doubt; (b) materiality is an element of the crime of perjury; therefore, (c) the constitution requires that the jury decide the element of materiality in perjury trials. Our dissenting colleague’s rejection of that simple, basic proposition seems to stem from an unfortunate confusing of the right to a jury trial in civil cases with the corresponding right in criminal cases, as well as from a misperception of precisely what issue this appeal presents.

Unlike the criminal jury right, the civil jury right is limited to its historical bounds. It depends in large measure on the traditional difference between law and equity. See Weinisch v. Sawyer, 123 N.J. 333, 342-43, 587 A.2d 615 (1991); Shaner v. Horizon Bancorp, 116 N.J. 433, 445-46, 561 A.2d 1130 (1989). In the civil context the right to a jury trial turns on whether that right existed at common law when the New Jersey Constitution was adopted. Weinisch, supra, 123 N.J. at 343, 587 A.2d 615. The provision of Article I, paragraph 9 of the 1947 Constitution that “[t]he right of trial by jury shall remain inviolate” means that a civil litigant may demand a jury trial if the same (or most highly analogous) action entitled one to a jury trial when the people adopted their constitution (probably the 1776 Constitution, maybe the 1947 document, possibly the 1844 version. See ibid.). It is no accident, then, that the cases cited in the dissent, post at 210-11, 603 A.2d at 937-38, for the proposition that the right to a jury trial must have pre-constitutional origins are primarily civil, i.e., Shaner, supra, 116 N.J. 433, 561 A.2d 1130 (no right to jury trial on claim under Law Against Discrimination); Chiacchio v. Chiacchio, 198 N.J.Super. 1, 486 A.2d 335 (App.Div.1984) (right to jury trial of contract claim); Quinchia v. Waddington, 166 N.J.Super. 247, 399 A.2d 679 (Law Div.1979) (no right to jury trial on issue of compliance with statutory notice provisions for parties seeking damages from Unsatisfied Claim and Judgment Fund); or involve minor or quasi-criminal offenses rather than serious crimes, i.e., Board of Health v. New York Cent. R.R. Co., 10 N.J. 294, 90 A.2d 729 (1952) (violation of municipal ordinance regulating air pollution); Town of Montclair v. Stanoyevich, 6 N.J. 479, 79 A.2d 288 (1951) (violation of zoning ordinance); Vega v. Sullivan, 2 N.J.Misc. 385 (Sup.Ct.1924) (involving legislatively-created offense of permitting children to be employed in factories).

The right to a jury trial in a prosecution for a serious crime, on the other hand, surely does not require any examination of history for its justification, nor does the dissent cite a single authority requiring that courts are bound by a historical approach. Significantly, although the constitutional basis for the civil jury right is found only in Article I, paragraph 9 of the 1947 Constitution, the criminal jury right is protected by paragraph 10 as well. The difference between the two provisions is this: paragraph 9 purports to preserve the jury right, whereas paragraph 10, containing no language pointing to history, declares that all criminal defendants “shall have the right to a speedy and public trial by an impartial jury.” The criminal jury right, with more than one constitutional basis, simply does not labor under the same historical restrictions as the civil jury right. And even were we to consider an argument based on history, we would take account of the overwhelming sentiment of those who formed our institutions to be free of the oppressive practices of Crown Courts. See Green v. United States, 356 U.S. 165, 214, 78 S.Ct. 632, 659, 2 L.Ed.2d 672, 705 (1958) (Black, J., dissenting). For example, despite pre-constitutional powers of courts to imprison and punish for contempt, “the traditional rule is constitutionally infirm insofar as it permits other than petty contempts to be tried without honoring a demand for a jury trial jury.” Bloom v. Illinois, 391 U.S. 194, 198, 88 S.Ct. 1477, 1480, 20 L.Ed.2d 522, 526 (1968).

But beyond that, the cases on which the dissent relies all go to an issue that is not in dispute on this appeal — that is, they focus on whether a jury trial is available, not on what the jury decides. The cases to which we should look for guidance, therefore, are not those that answer what causes of action trigger the right to a jury trial but rather those that deal with the respective functions of judge and jury in a criminal trial— cases such as Ragland, supra, 105 N.J. 189, 519 A.2d 1361; Ingenito, supra, 87 N.J. 204, 432 A.2d 912; Humphreys, supra, 54 N.J. 406, 255 A.2d 273, and authorities cited in those decisions. And those authorities give to the question posed here an unmistakably clear answer, namely, that in a criminal prosecution in which the accused has a constitutional right to a trial by jury, each element of the crime must be decided by the jury and none of those elements may be withheld from the jury and decided by the judge as a matter of law. As Ingenito instructs us, the criminal jury right, unlike the civil jury right, is intertwined with the due-process requirement that the State prove every element of the crime beyond a reasonable doubt. 87 N.J. at 214-15 & n. 3, 432 A.2d 912. On that proposition we fail to see how there can be any dispute.

V

Returning to the circumstances before us, we conclude that Anderson’s conviction cannot stand. The jury acquitted defendant on Count One (I shot the rifle); it convicted him only on Count Two (I did not give a statement to the police). The evidence was not so compelling that the failure to submit to the jury the issue of materiality of the latter statement can be considered harmless. The failure to send an element of a crime to the jury generally should not be considered harmless error. State v. Harmon, 104 N.J. 189, 213, 516 A.2d 1047 (1986) (“errors on matters material to the jury’s factfinding function are ordinarily considered ‘poor candidates for rehabilitation under the harmless error philosophy’ ” (quoting Simon, supra, 79 N.J. at 206, 398 A.2d 861)); see also Clemente, supra, 136 N.Y.S.2d at 208 (“no essential element of a crime, however clear the facts may be in the evidence, may be taken away from the jury”).

The judgment of the Appellate Division is reversed. The conviction for perjury is vacated, and the cause is remanded to the Law Division for proceedings consistent with this opinion.