On January 16, 2024, the New Jersey Supreme Court decided the Monmouth County case of State v. Calvin Fair. The principal issue under N.J.S.A. 2C:12-3 concerned the constitutionality of the terroristic threats statute under the First Amendment.
Justice Wainer Apter wrote for a unanimous Court in relevant part: We substantially adopt the Counterman standard and hold that in a criminal prosecution for a true threat of violence under N.J.S.A. 2C:12-3(a), a mens rea of recklessness suffices for purposes of both the First Amendment to the United States Constitution and Article I, Paragraph 6 of the New Jersey Constitution.
Under this standard, to be found guilty of a violation of N.J.S.A. 2C:12-3(a), a defendant must have consciously disregarded a substantial and unjustifiable risk that their threat to commit a crime of violence would terrorize another person, and that conscious disregard must be a gross deviation from the standard of conduct that a reasonable person in a defendant’s situation would observe.
In the context of true threats, a mens rea of recklessness is demanding. As the Court explained in Counterman, “in the threats context,” a mens rea of recklessness “means that a speaker is aware ‘that others could regard his statements as’ threatening violence and ‘delivers them anyway.'” 600 U.S. at 79 (quoting Elonis, 575 U.S. at 746). Although it is not purposeful or knowing, “recklessness is morally culpable conduct, involving a ‘deliberate decision to endanger another.'” Ibid. (quoting Voisine, 579 U.S. at 694). Indeed, “reckless defendants have done more than make a bad mistake. They have consciously accepted a substantial risk of inflicting serious harm.” Id. at 80.
This understanding of recklessness for purposes of a true threats prosecution is generally consistent with, although more specific than, the general definition of recklessness in the Criminal Code, set forth in N.J.S.A. 2C:2-2(b)(3).
Complicated mens rea definitions are likely play little role in most jury deliberations. At the end of a trial, your average juror is looking to reach a verdict without having to learn and apply complicated concepts.
