On January 18, 2024, the New Jersey Supreme Court decided the Hudson County case of State v. William Hill. The principal issue under N.J.S.A. 2C:28-5 concerned the constitutionality of the witness tampering statute.
Justice Wainer Apter wrote for the unanimous Court in relevant part: Although N.J.S.A. 2C:28-5(a) is not facially overbroad; we find that it may have been unconstitutionally applied to defendant in this case because he was prosecuted for the contents of his letter and the jury was not required to find that his letter constituted speech integral to criminal conduct.
The State and the Attorney General both argue that defendant was not prosecuted “because of anything specifically written in the content of the letter,” but rather because “he engaged in a course of conduct that involved sending the letter to his victim’s home before the trial, making it clear he knew who she was and where she lived.” As proof, the Attorney General maintains that had defendant published the same letter “via an open letter in a newspaper, there would have been no conceivable tampering prosecution.”
The second assertion is correct; the first is not. It is true that had defendant published a letter in a newspaper, he could not have been prosecuted for witness tampering. And it is true that defendant could have been prosecuted simply for sending a letter to A.Z. in a way that showed he knew her full name, knew where she lived, and was willing to “engage with her directly.” But as a factual matter, he was not.
It is clear from the trial transcript that defendant was prosecuted for the contents of his letter. The prosecutor mentioned the contents of the letter in his opening statement. A redacted version of the handwritten letter was entered into evidence and read out loud to the jury. The prosecutor asked the jury during summation to “read the letter. You determine . . . what does the letter say?” And again:
It is your question, you look at the contents, right? What is he saying to her? What is he trying to do? What is a reasonable person to take from it? I am not going to say more than that. That is for you guys — read the letter. Think about it in the context of all this, right?
A trick often used by prosecutors in summation is to say “I am not going to say x, y, and z.” For example, while prosecutors are prohibited from asking a juror to put themselves in the shoes of the alleged victim, they will sometimes say “I am not going to ask you to put yourselves in the shoes of the alleged victim.” The natural result is for jurors to hear this and then put themselves in the shoes of the alleged victim.