dissenting.
I respectfully dissent. The Court, I believe without justification, has declared an act of the Legislature to be unconstitutional.
The Legislature has said that in a trial for perjury, the judge shall decide whether the perjurious statement is “material,” *210that is to say, the judge shall decide whether it “could have affected the course or outcome of the proceeding.” N.J.S.A. 2C:28-lb. The majority rules that New Jersey’s constitutional right to trial by jury requires a different result. It rules that the State’s constitutional provision guaranteeing a jury trial requires that the jury decide “materiality.” It is a ruling unsupported by the generally accepted construction of that State constitutional provision.
I
It has been held without controversy, dissent, or even question that the right of a defendant in a criminal matter to trial by jury guaranteed by our State Constitution is defined and limited by that right as it existed at the time of the adoption of our original Constitution. In other words, one claiming a right to trial by jury under the New Jersey Constitution must point to that right as it existed prior to 1776 when our first Constitution was adopted. That issue was settled by this Court in Montclair v. Stanoyevich, 6 N.J. 479, 484, 79 A.2d 288 (1951). We held there that minor offenses not tried by jury at common law were triable without jury before a magistrate in a summary manner. We held that the critical issue when a defendant claimed a right to trial by jury is whether that right existed prior to 1776. We held further that every succeeding Constitution, in 1844 and in 1947, simply maintained that right but only as it existed prior to our original Constitution.
The thread of appellant’s argument is that each constitutional provision speaks anew as of the time of the adoption of the instrument of which it is part and includes such legislative provisions as are on the statute books at the time of the adoption, however recently theretofore the statutory provision had been passed. We find otherwise. The right of trial by jury protected in each of our Constitutions is the right as it existed at common law and remained on July 2, 1776 * * *. Each succeeding Constitution undertook to preserve, inviolate, the right as it had originally existed and which the 1776 instrument ordained was to be “without repeal, forever.” [Id. at 485, 79 A.2d 288.]
Accord, Shaner v. Horizon Bancorp., 116 N.J. 433, 447-48, 561 A.2d 1130 (1989); Chiacchio v. Chiacchio, 198 N.J.Super. 1, 6, *211486 A.2d 335 (App.Div.1984); Quinchia v. Waddington, 166 N.J.Super. 247, 249, 399 A.2d 679 (Law Div.1979); Vega v. Sullivan, 2 N.J.Misc. 385 (Sup.Ct.1924).
There are many variations on this theme, including the proposition that a new offense created by statute entitles the defendant to a constitutional right of trial by jury only “if it belongs to a class of cases triable by jury at common law * * *. Our constitutions have merely preserved the right of trial by jury; they have not extended it.” Board of Health v. New York Cent. R.R. Co., 10 N.J. 294, 303, 90 A.2d 729 (1952) (citation omitted). I know of no case suggesting anything different about the scope of the right to trial by jury under the New Jersey Constitutions.
The constitutional provisions at issue, which govern criminal trials, are article I, paragraphs 9 and 10 of the New Jersey Constitution of 1947, identical in part to article I, paragraphs 7 and 8 of the New Jersey Constitution of 1844.1 Both paragraphs were derived from paragraph XXII of the Constitution of 1776, which holds that “the inestimable right of trial by jury shall remain confirmed, as a part of the law of this colony, without repeal, forever.” The relevant paragraphs of the Constitutions of 1947 and 1844 provide that “[t]he right of trial by jury shall remain inviolate” (N.J. Const, art. I, ¶ 9; N.J. Const, of 1844 art. I, ¶7) and that “[i]n all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury” {N.J. Const, art. I, ¶ 10, N.J. Const, of 1844 art. I, 118).
No doubt exists that both of these provisions define and protect the right to jury trials in criminal matters. See State v. Ingenito, 87 N.J. 204, 432 A.2d 912 (1981) (citing the article I, paragraph 9 “inviolate” provision throughout as applicable to criminal matters); State v. Maier, 13 N.J. 235, 276-77, 99 A.2d *21221 (1953) (applying article I, paragraphs 9 and 10 of the 1947 Constitution to criminal matters in rejecting the claim of right to trial by jury). See also Stanoyevich, supra, 6 N.J. at 485, 79 A.2d 288, which states that
[t]he provisions under study, as well as the command that no person shall be held to answer for a criminal offense unless on the presentment or indictment of a grand jury * * * alike have relations to the substance of the common law. Each succeeding Constitution undertook to preserve inviolate, the right as it had originally existed and which the 1776 instrument ordained was to be “without repeal, forever.”
No doubt exists that both paragraphs (article I, paragraphs 9 and 10 of the 1947 Constitution and article I, paragraphs 7 and 8 of the 1844 Constitution) limit that right to what it was at common law prior to the adoption of the 1776 Constitution— despite the view of the majority that only the “inviolate” section (article I, paragraph 9 of 1947, article I, paragraph 7 of 1844) has such an historical limit. Presumably, the majority is of the view that article I, paragraph 10 of 1947 and article I, paragraph 8 of 1844 (“in all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury”) are free standing provisions unconnected with any historic roots, to be interpreted in accordance with their plain meaning. Ante at 207-08, 603 A.2d at 936.
The majority ignores our prior interpretations of these constitutional provisions. In Maier, for example, paragraphs 9 and 10 of article I of the current Constitution were interpreted throughout by reference to the common law and history prior to 1776. Chief Justice Vanderbilt, writing for the majority, stated simply that
[t]he only question before us is whether or not [the criminal statute] contravenes paragraphs 8, 9, and 10 of Article I of our Constitution relating to indictment by a grand jury and trial by an impartial jury. To resolve this question requires * * * a study of the summary jurisdiction of the justice of the peace at common law * * *. [13 N.J. at 243-44, 99 A.2d 21.]
Later in the opinion he stated, “to recapitulate, justices of the peace had jurisdiction at common law before 1776 to punish simple assaults and simple assaults and batteries summarily without indictment and without trial by jury.” Id. at 278, 99 *213A.2d 21. This critical conclusion supported the interpretation that paragraphs 9 and 10 of article I of the 1947 Constitution do not require a trial by jury of such offenses. Ibid.; see Stanoyevich, supra, 6 N.J. at 488, 79 A.2d 288 (“Art. I, ¶ 8 of the 1844 Constitution directing that in all criminal prosecutions the accused should have the right to a speedy trial by an impartial jury conferred no new right but only what was previously a common law right.” (citing State v. Fox, 25 N.J.L. 566, 589 (Sup.Ct.1856))).2
The majority would challenge these rules of constitutional law because they appear in cases that do not involve “crimes.” *214It seems true that there are probably no cases where the defendant was indicted that propound these constitutional rules. Once the offense is concededly indictable, it is axiomatic that the constitutional right to jury trial attaches, for beyond debate such offenses called for a jury in 1776. No analysis is needed, no question arises on how to interpret the constitutional provisions in indictable matters. The cases that test the meaning of these constitutional provisions are those in which the defendant claims trial of the offense requires a jury and the State claims it does not — all of the cases cited above falling in that category. It is not always an easy question (Maier took fifty pages, the decision was 4-3), but the constitutional rule governing its answer is not in dispute: the constitutional right to trial by jury in criminal matters exists only if the offense was triable by jury at common law at the time of the adoption of our first Constitution.
The Federal Constitution has been similarly interpreted — as has probably every state constitution with similar language. See Harry Kalven, Jr., & Hans Zeisel The American Jury 15 n. 5 (1966). In Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L.Ed.2d 491 (1968), the Supreme Court held that the federal right to trial by jury in criminal matters was applicable to the states by virtue of the Fourteenth Amendment. Having so held, at issue was the meaning of the Sixth Amendment to the United States Constitution, which guarantees a right to trial by jury in all criminal prosecutions in words identical to article I, paragraph 10 of the 1947 Constitution.3 That is the provision that the majority says has no historic definition. The Supreme Court, however, determined the scope and meaning of that provision by reference to the right to trial by jury as it existed *215prior to the adoption of the Federal Constitution. Id. at 160, 88 S.Ct. at 1453, 20 L.Ed.2d at 502 (“So-called petty offenses were tried without juries both in England and in the Colonies and have always been held to be exempt from the otherwise comprehensive language of the Sixth Amendment’s jury trial provisions.”).
Only one arguably debatable point is involved in this case. It is whether the Constitution limits not only which offenses are triable by jury by reference to the right prior to 1776, but which issues are to be so tried where the offense admittedly calls for a jury. It is clear that, generally, every material element of a crime must be tried by the jury, for essentially that is what is meant when it is said that there is a right to trial by jury. But what about an offense where one of the issues — arguably material — was not tried by the jury at common law even though the crime itself was, but rather such issue, part of the crime, was decided by the judge? I believe that since the function of the constitutional provision is to preserve what existed before, it necessarily follows that there is no constitutional right to try such an issue before a jury, an issue that never had been so tried before. Maier, supra, 13 N.J. at 264-65, 99 A.2d 21. The right that is preserved is what existed at the time of the Constitution, what existed then in fact, in practice, not some construct of the right’s content that may be generally accurate but that overlooks its historical essence. The question is rarely touched, but this view is supported by Roesel v. State, 62 N.J.L. 216 (E. & A.1898), where the Court, in dictum, dealt with the extent of the then right to trial by jury in criminal libel matters. The Court discussed the question of whether the legal issue of libel, as distinguished from the factual issue, was for the court or the jury prior to 1776. There was no doubt that the case itself called for trial by jury. The question was analyzed by reference to the practice at common law prior to the Constitution. Id. at 248-54. .
Similarly, Steiner v. Stein, 2 N.J. 367, 66 A.2d 719 (1949), a civil case, analyzed the right to trial by jury in terms of which *216issues were so triable by the jury. Steiner involved article I, paragraph 9, of the 1947 Constitution, (“inviolate”), applicable, as noted above, to the right to trial by jury in both civil and criminal cases. The Court held that an issue not triable by jury under the prior Constitution did not become one for the jury by virtue of paragraph 9 (“the right of a trial by jury shall remain inviolate”):
Wherever an issue of fact was triable without a jury under the Constitution of 1844, it is triable without a jury under the Constitution of 1947. The constitutional provision preserving trial by jury inviolate does not enlarge the scope of the right to trial by jury; it merely precludes its attrition by either the Legislature or the courts. [Id. at 379, 66 A.2d 719 (emphasis supplied).]
While the case was civil, there is no reason to distinguish it from a criminal case, for it is the same constitutional provision that was involved, preserving the right to trial by jury inviolate in both civil and criminal cases, applicable to issues as well as to the case itself, and in both instances limited by historic practice.
The same result obtains here. The case before us was triable by jury at common law, but within that case the issue of materiality was determined not by the jury but by the court. Gordon v. State, 48 N.J.L. 611, 7 A. 476 (E. & A.1886). The Constitution today preserves inviolate only that right to trial by jury that it took from the common law, the right to try the perjury case but not the issue of materiality.
There is nothing in State v. Ragland, 105 N.J. 189, 519 A.2d 1361 (1986), Ingenito, or State v. Humphreys, 54 N.J. 406, 255 A.2d 273 (1969), to the contrary. Ante at 208-09, 603 A.2d at 936-37. They all involved cases and issues concededly triable by jury; none of them involved the contention that either a case or an issue within that case was not triable by jury. Those cases simply have nothing to do with the question at issue before us today. Given that a particular issue in a criminal case is concededly triable by jury, what those cases dealt with is whether the trial practice involved had the effect of unconstitutionally diminishing that right. No one contended that the practice involved was permitted at common law.
*217In Humphreys the issue was possession, the unconstitutional practice being a charge of “presumed possession” which substantially diminished jury fact finding, 54 N.J. at 416, 255 A.2d 273; in Ingenito, again the question was possession, the unconstitutional practice being the introduction of evidence with the effect of substantially precluding jury fact-finding, similar to collateral estoppel, 87 N.J. at 209-10, 432 A.2d 912; in Ragland the issue was possession once more, the unconstitutional practice being a charge greatly diluting the jury’s fact-finding role. 105 N.J. at 193-94, 519 A.2d 1361. Ragland also dealt with the question whether the constitutional right to trial by jury was infringed when the jury was instructed that it “must” convict if it found the elements of the crime beyond a reasonable doubt. Id. at 196-204, 519 A.2d 1361. Having determined that the United States Constitution did not invalidate such a charge, we declined to pass on the state constitutional issue. Noting that “no constitutional argument has been asserted,” and that the constitutional history had been “neither briefed nor argued,” we declined “to search New Jersey’s judicial history to determine whether the ‘must convict’ charge was either so clearly established or so clearly rejected as to warrant a conclusion that the reception of common law determines the issue, or that the history post-reception somehow determines the issue.” Id. at 199 n. 3, 519 A.2d 1361.
The only question before us, therefore, is whether the materiality issue in a perjury case was triable by the jury at common law prior to the adoption of the Constitution of 1776.
The earliest New Jersey case that conventional research can find dealing with the disposition of the materiality issue in perjury prosecutions is Gordon v. State, supra, 48 N.J.L. at 611, 7 A 476. In Gordon, the Court held that materiality is to be determined by the judge and not by the jury. No constitutional question was raised. Neither that case nor any of those that follow in this State suggests that there has ever been a case, either before or after Gordon, ruling to the contrary. Instead, the cases that follow uniformly relegate the issue of *218materiality to the court, and not to the jury. See State v. Whalen, 235 N.J.Super. 506, 509-10, 563 A.2d 457 (App.Div. 1989); State v. Molnar, 161 N.J.Super. 424, 451, 391 A.2d 1225 (App.Div.1978), rev’d, on other grounds, 81 N.J. 475, 410 A.2d 37 (1980); State v. Lupton, 102 N.J.L. 530, 534, 133 A. 861 (Sup.Ct.1926); State v. Winters, 140 N.J.Super. 110, 113, 355 A.2d 221 (Cty.Ct.1976). While more painstaking research might uncover perjury prosecutions conclusively demonstrating what the practice had been prior to Gordon, there is no reason to believe that the materiality issue was handled differently, no reason to believe that in New Jersey at any time prior to 1776, or thereafter, materiality had been disposed of by anyone other than the judge. Given that evidence, there would seem to be no need for additional authority proving that the practice within this State, prior to 1776 was to commit that issue to the court. The available evidence is such that the burden is clearly on those asserting the contrary. I know of no such contrary evidence.
The conclusion reached in this dissent is not a matter of logic but of history and precedent. The precedents are our own cases that say what the constitutional provision means — that the right to trial by jury in criminal matters is only that right that existed prior to 1776. The history is that prior to 1776 — as far as we can tell — the right to trial by jury of this issue did not exist. As a matter of fact, the issue was to be tried by the judge. The logic behind that determination — certainly debatable — is irrelevant. It is just as irrelevant as the logic behind committing trials of minor criminal offenses to the judge but other criminal offenses to the jury. Centuries of history explain the practice that led, prior to 1776, to some criminal cases being tried by a jury and some not, and logic was probably the smallest portion of a multitude of considerations, relationships, and accidents that went into the mix. See generally Felix Frankfurter & Thomas G. Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Haro. L.Rev. 917 (1926) (discussing historical evolution of summary *219procedures for criminal prosecutions). What our constitutional right to trial by jury preserved, however, was the result of that history, not to be reversed because we would have preferred it to be different, nor to be reversed because it is either illogical or nonlogical.
While the foregoing historical analysis does not purport to be complete, no more is needed for this case.
There are some constitutional provisions that grow as society grows and as its values change. And I assume that even the right to trial by jury under our New Jersey Constitution may in some circumstance be modified from what has been described above. I do not know what that circumstance might be, but it certainly has not been suggested here.4 These are constitutional provisions that this Court has stated unequivocally are fixed in their meaning; the right to trial by jury in criminal matters is not a constitutional right defined either by reference to societal values or to the generalized intent of the founding fathers. It is a definite delimited right. We have no warrant to expand it, and especially so when the effect is to invalidate an act of the Legislature.
*220If it is unseemly to decide a case in 1992 concerning the right to trial by jury on the basis of what happened before 1776, we should overrule those cases of this Court that define what the constitutional provisions mean. Further, if that reading of the Constitution, assuming it is correct, is out of joint with modem conceptions of policy or fairness the remedy in this case is simple: there is nothing in the Constitution that prevents the Legislature from reversing itself and affording a right to trial by jury of the issue of materiality. No constitutional amendment is needed.
II
There are other routes which this Court could, but does not, take in this case. It could be claimed, and in fact the defendant so claims, that the due process and fundamental fairness components of our State Constitution require a trial by jury; or that the federal constitutional command of due process so requires — a point not made by defendant. The due process claims raise substantial and difficult questions. They were briefly treated in Whalen, in which the Appellate Division held that our perjury statute’s requirement of submission of the materiality issue to the judge alone is constitutional. The constitutional issues just mentioned — state due process and fundamental fairness, as well as federal due process — are treated in Judge Baime’s concurring opinion. That opinion concludes that, under more recent decisions defining the right to a jury trial (In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)), there is no federal due process right to a trial by jury of the materiality issue. Applying the criteria of State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982), and other cases, Judge Baime further found that there is no justification for a different result under New Jersey’s equivalent due process requirement, but rather “the evidence abounds the other way.” Whalen, supra, 235 N.J.Super. at 517, 563 A.2d 457. Finally, that opinion implicitly found no indicia of fundamental unfairness in such a result, namely, adjudication by the court.
*221Since the due process clause under our State Constitution is not relied upon by the majority, I have not pursued that avenue of inquiry. My research, however, suggests that while very substantial questions remain, at least in those few federal cases that have faced the issues raised by Wins hip’s asserted impact on Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692 (1929), the better view is that based on all federal authority, including recent United States Supreme Court cases, that Court is more likely to hold that the due process requirements of the Federal Constitution do not invalidate the rule that materiality is to be decided by the judge in perjury cases.5
I would assume that this Court under those circumstances would not invoke due process under the New Jersey Constitution to expand that right without the justifications called for in State v. Hunt, none of which exist. See Shaner v. Horizon Bancorp., supra, 116 N.J. at 433, 561 A.2d 1130 (refusing to expand constitutional right to trial by jury to include claims under the Law Against Discrimination). While the United States Supreme Court has held that federal due process requires that defendants be afforded a jury trial for non-petty *222offenses (e,g., Duncan), no New Jersey case has ever held that the Federal or State Constitution requires the jury trial of a matter for which no such right existed at common law.
While decisions that this issue must be submitted to the jury exist, they are not based on logic or illogic, even though the analysis includes discussion of that matter, but rather are based, I believe, on an incorrect interpretation of the Federal Constitution (United States v. Taylor, 693 F.Supp. 828 (N.D.Cal.1988); Commonwealth v. McDuffee, 379 Mass. 353, 398 N.E.2d 463 (1979)); or on the interpretation of a state statutory amendment (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)).
As far as fundamental fairness is concerned, that doctrine is ordinarily used in those unique circumstances where no constitutional provision seems to bear on the question but rather a sense of fairness or unfairness prevails. That is not the situation here, for these matters are covered by explicit constitutional provisions and furthermore, as Judge Baime points out, “others equally committed to protecting the civil rights of our citizens have repeatedly adopted and adhered to a contrary view.” Whalen, supra, 235 N.J.Super. at 517, 563 A.2d 457.
Ill
It is not at all clear that having a jury decide materiality is the better result. It may be the better result in terms of a value judgment: one who believes that absolutely every factual issue in a criminal trial should be submitted to a jury will agree with that conclusion. But if logic and policy — apart from that value judgment — are the touchstones, debate is warranted. The majority criticizes the logic of those who say materiality in peijury cases is for the court since materiality in the admission of evidence is for the court. The majority notes that there is a big difference between the two. There may or there may not be such a difference, but that depends on how our statute is *223interpreted. The statute says that perjury is material “if it could have affected the course or outcome of the proceeding * * if that means that it is material only if it was reasonably likely, or reasonably possible, or somewhat probable, or something similar, to have affected the outcome, then clearly the judge has to engage in a factual inquiry about the probable or possible impact of the perjurious testimony on the outcome of the proceedings. No more prototypical inquiry for jury consideration could be defined. It is not only quintessentially factual, it is a question on which jurors are experts. On the other hand, if what the statute means, despite a somewhat different thrust in its language, is that the judge is to determine whether the perjurious testimony bears on the issue, has some relationship to the issue, and in that sense could have affected the outcome, the judge’s inquiry is absolutely not one whit different from the inquiry made in deciding whether or not evidence is material — relevant.6 That question, of statutory *224interpretation, has not yet been determined by this Court, but it is of some interest to note that in State v. Voorhis, 52 N.J.L. 351, 356, 20 A. 26 (Sup.Ct.1890), the test of materiality in perjury cases was that “the testimony will be deemed material whenever it tends directly or circumstantially to prove the matters in issue.” (emphasis supplied). The common law rule, at one time, was that the defendant must be shown to have intended to deceive the court and the jury, (see Cermak v. Hertz Corp., 53 N.J.Super. 455, 463, 147 A.2d 800 (App.Div. 1958), aff'd per curiam, 28 N.J. 568, 147 A.2d 795 (1959); State v. Winters, supra, 140 N.J.Super. at 118, 355 A.2d 221; 60A Am.Jur.2d Perjury § 1 (1988)) — suggesting a clearly factual scope for the materiality inquiry, but the statute changed that when it provided that defendant’s belief as to materiality is irrelevant. N.J.S.A. 2C:28-l(b). Furthermore, the statute allows a perjury conviction even if the evidence is inadmissible. The logic or illogic, therefore, of a conclusion that materiality is no more a function for the jury under the perjury statute than it is on the question of the admissibility of evidence depends completely on the construction of this statutory provision.
As far as policy is concerned — again putting aside the value judgment about the right to trial by jury — the correct result is not at all clear. The conflict in decisions on this issue in England was resolved by a statute, after much debate, the *225resolution being in favor of determination by the court. The Perjury Act, 1911, 1 & 2 Geo. 5 c. 6, § 1(6).
The outcome of a debate on policy as well as on logic may also depend on the meaning given to the statutory provision. If it means “materiality” only in thev sense of whether the perjurious statement “tends” to prove something, there is no point in having a jury decide it. Indeed, if that is what it means, it is hard to argue that it is an “element” of the crime. On the other hand, if materiality requires an exhaustive examination of the case in which the perjury was committed to determine whether or not it was likely that it could have affected the outcome, then the policy argument proceeds to the question of whether the jury or the judge is better suited to make that determination. The “trial within a trial!’ will exist regardless of where the power is seated, but the potential delay, confusion, and expense would seem to be diminished if it is the judge rather than the jury who handles that pari; of the case. More persuasive, however, is the observation that committing this issue to the jury significantly diminishes ^the likelihood of punishing perjury when it was unsuccessful. \ The jury will be asked to convict on the ground that the alleged perjurer’s statement could have affected the outcome of the case when in fact it did not. It may convict, and perhaps just as often as will a judge under those circumstances, but a fair case can be made that unsuccessful perjury will rarely be punished at the hands of a jury. The relevancy, as to all of these issues, of the fact that we have a false swearing statute without any requirement of materiality, has not been treated here although it may be of importance.
It is of some moment that the Law Revision Commission that drafted our Code of Criminal Justice, as well as the drafters of the Model Penal Code, neither the slave of tradition, history or illogic, (nor disciples of “the oppressive practices of Crown Courts” ante at 208, 603 A.2d at 936) agreed that this issue should be tried by a judge. See New Jersey Criminal Law Revision Commission, The New Jersey Penal Code, Volume II: *226Commentary (1971) at 270; Model Penal Code § 241.1 (1957), commentary at 124-26.
The result of the majority may be the better result, and if it is I regret the law that compels me to differ. It is a Constitution we are construing, however, and its meaning seems to me to be clear and beyond the power of this Court to expand, especially when to do so invalidates an otherwise perfectly legitimate exercise of legislative power.7
For reversal and remandment Justices CLIFFORD, POLLOCK, O’HERN, GARIBALDI and STEIN — 5.
Chief Justice WILENTZ, dissents.
Justice HANDLER, not participating.
Paragraph 9 of the 1947 Constitution (and its predecessor, paragraph 7 of the 1844 Constitution) also governs civil matters.
Indeed, the cases accepting this view of the law are legion. See, e.g., Roesel v. State, 62 N.J.L. 216, 247, 41 A. 408 (E. & A.1898) (The "concluding paragraph of [the right to trial by jury section of the 1776 Constitution] retains and confirms the institution of trial by jury in civil as well as in criminal cases. No implication arises from this language of a purpose to enlarge the powers of jurors, in either civil or criminal cases, beyond what they were at common law * ** State v. Doty, 32 N.J.L. 403, 405 (E. & A.1868) (in affirming criminal conviction for contempt, stated that the effect of the constitutional right to jury trial provision "is to establish the privilege by the highest of sanctions, but not to enlarge it. The provision operates as a restraint upon the legislative power; the right is not to be impaired or diminished, but is to remain as it existed at common law * * *."); Peck v. Police Court, 137 N.J.L. 19, 20, 57 A.2d 488 (Sup.Ct.1948) (in prosecution for criminal conviction for forcibly interfering with member of police department in performance of his duties, explained that
the constitutional right of trial by jury in article I, paragraph 7, of the New Jersey Constitution of 1844 preserves the right in cases where it existed at the time of the adoption of the constitution and was not intended to introduce the right in cases where by law and long precedent it did not previously exist.) (citations omitted);
Vega v. Sullivan, supra, 2 N.J.Misc. at 385 (stating, in criminal conviction for endangering the welfare of a child, that "[t]rial by jury under our constitution is not an absolute right of the defendant in all cases. The rule is settled beyond cavil that it is guaranteed only in those cases where it exists at common law." (citations omitted)); Katz v. Eldredge, 96 N.J.L 382, 118 A. 242 (Sup.Ct.1921), rev’d on other grounds, 97 N.J.L 123, 117 A. 841 (E. & A.1922) (in criminal conviction for selling liquor in violation of Prohibition laws, stating "[t]he constitutional right of trial by jury applies only to cases in which the prerogative existed at common law or was secured by statute at the time the constitution was adopted, and not in those cases where the right *214and the remedy with it are thereafter created by statute." (citations omitted)); Johnson v. Barclay, 16 N.J.L. 1, 6 (Sup.Ct.1837) (same).
Both Constitutions provide that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * U.S. Const, amend. VI; N.J. Const, art. I, ¶ 10.
It is possible that the statutory definition of materiality has so transformed the understanding of materiality at common law as to have converted what was a question of law into one of fact. As noted below, that depends on how the statute is interpreted. Assuming such change in meaning, it is also possible that since it is the Legislature that defines the "elements" of a crime, that which formerly was not an element, given its nature as a question of law, and its constitutional submission to the judge for determination, did not become one by virtue of the added protection given to defendants in the form of the more substantial showing required by the State in order to submit the case to the jury. Even when intent to deceive may have been the essence of materiality, the question at common law prior to 1776 was decided by the court. Furthermore, assuming a statutory interpretation that would lead to a declaration of unconstitutionality, it is also possible that this Court would conclude that, given the choice, the Legislature would prefer to sustain the provision requiring submission to the judge rather than such an interpretation of the definition of materiality, leading the Court to construe the definition in accord with that preference.
Winskip holds that federal due process requires that the state prove each element of a crime beyond a reasonable doubt. Sinclair, decided many years before, holds that materiality is an issue for the court. At best the question seems unresolved; Justice White has recently urged the Court to review the materiality question in a dissent from a denial of certiorari. Greber v. United States, 474 U.S. 988, 106 S.Ct. 396, 88 LEd.2d 348 (1985) cited in People v. Hedgecock, 51 Cal.3d 395, 272 Cal.Rptr. 803, 810, 795 P.2d 1260, 1267 (1990), which expressed no view on whether materiality is question for the jury in perjury prosecutions.
The Court’s most recent pronouncement, however, cites Sinclair with approval and, albeit in another context, adopts the rule that materiality is an issue for the court. Kungys v. United States, 485 U.S. 759, 772, 108 S.Ct. 1537, 1547, 99 L.Ed.2d 839, 854 (1988). See also United. States v. Giacalone, 587 F.2d 5, 6-7 (6th Cir.1978), cert. denied, 442 U.S. 940, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979), in which the court said, in a case involving perjury before a grand jury, that it "has long been settled that the question of materiality in a perjury or false statement case is one of law for the courts to decide * * *. Since the issue of materiality is a legal question, not a question of fact, the government need not prove materiality beyond a reasonable doubt * * *.’’ (citations omitted).
The correct construction of the "materiality” definition ("could have affected the course or outcome of the proceeding”) is far from clear. The language is first found in the Model Penal Code § 208.20(2) (Tentative Draft No. 6 at 96 (1957)) (hereinafter the "Tentative Draft"), and thereafter incorporated in The New Jersey Penal Code. See New Jersey Criminal Law Revision Commission, The New Jersey Penal Code, Volume II: Commentary at 270 (1971).
The Tentative Draft rejects the recommendation of the National Conference of Commissioners on Uniform State Laws that materiality be eliminated. See Tentative Draft, Comment at 109. It goes on to note that its definition
does not differ substantially from that given by prevailing law. Our formulation ("could have affected the course or outcome of the proceeding”) is equivalent to the "capable of influencing" rule found in many judicial opinions and is close to the definition recommended by the Commissioners on Uniform State Laws as an alternative to the repeal of the materiality requirement. [Ibid.]
The Commissioners on Uniform State Laws had recommended as such an alternative: "whether the statement might affect some phase or detail of the trial, hearing, investigation, deposition, certification or declaration * * The Tentative Draft apparently objected only to the word "detail." Ibid. The Model Penal Code Commentary notes further that a case in which the United States Court of Appeals for the District of Columbia Circuit declared that the witness’ testimony was not material because it "could have had no effect on the jury’s decision,” would be found material under its definition. Id. at 111 *224(referring to Pyle v. United States, 156 F.2d 852 (D.C.Cir.1946)). Finally, the commentary notes that "[o]ur definition accepts the majority position, inasmuch as we do not specify any particular degree of influence which the falsification might have." Tentative Draft, Comment at 112.
Both sides in this debate agree that the significance of “materiality" should be diminished in perjury laws — the Commissioners on Uniform State Laws concluding it should be eliminated, the drafters of the Model Penal Code intending to clarify and at the same time diminish the possibility of technical or unwarranted defense to perjury charges. The outcome, however, is that despite the apparent thrust of the statute’s definition, it may still mean nothing more than that the testimony “tends directly or circumstantially to prove the matters in issue,” State v. Voorhis, 52 N.J.L. 351, 356, 20 A. 26 (Sup.Ct.1890), not substantially different from evidential materiality.
I reach no conclusion on the federal constitutional question. Defendant does not raise it, it is not within the scope of our grant of certification, the majority does not explicitly decide it, and it has not been fully briefed nor argued.