On January 23, 2023, a three-judge appellate panel decided the Hudson County case of State v. William Hill. The principal issue under N.J.S.A. 2C:28-5 concerned whether the witness tampering statute was unconstitutionally vague by employing a “reasonable person” standard as opposed to a particular defendant’s knowledge.
Judge Susswein wrote for the Appellate Division in relevant part: So far as we are aware, none of the foregoing statutes have been challenged, much less stricken, on constitutional grounds because they employ a reasonable-person standard. In these circumstances, we decline to create a new categorical rule that would invalidate the use of an objective reasonable-person test for determining criminal culpability.
In sum, we conclude that a person of ordinary intelligence can reasonably determine whether his or her conduct constitutes witness tampering. In this particular application, moreover, we are satisfied defendant was on constitutionally sufficient notice that the letter he addressed to the carjacking victim’s private residence violated N.J.S.A. 2C:28-5(a) as measured from the perspective of a reasonable person. As the ACLU acknowledges, “of course, it is not necessary to a conviction for witness tampering that the witness actually give false testimony or obstruct a proceeding, if the conduct of defendant made the risk of such behavior sufficiently likely.” Amicus further acknowledges that “written communications can, depending on context, often convey meanings that are at odds with their facial text.”
Here, although defendant’s letter was not explicitly threatening, the context shows defendant wanted the victim to recant her identification of him. Importantly, the context of the letter shows he knew where she lived and was prepared to interact with her directly and not through his attorney or the prosecutor’s office. We believe defendant was thus on sufficient notice that a reasonable person would believe an eyewitness confronted with such a letter would feel pressured to accede to his request to recant an out-of-court identification and refrain from testifying against him at trial.
Had the defendant employed an investigator to communicate his concerns to the victim, he would have likely avoided the witness tampering charge and conviction. It is difficult to imagine a situation in which a criminal defendant should communicate with his alleged victim directly about their pending case.