Justice Wainer Apter continued in relevant part: Defendant’s letter is not integral to the criminal act of tampering with a witness on its face. It does not explicitly ask A.Z. to testify falsely, withhold testimony, elude legal process, absent herself from any proceeding, or otherwise obstruct, delay, prevent or impede any official proceeding or investigation. It does not openly encourage A.Z. to do any of those things. And it does not threaten A.Z. if she continues to cooperate with the police or the prosecution.
Because the letter is facially innocuous, to prove that it was speech integral to witness tampering, the State was required to prove that defendant intended the letter to cause A.Z. to testify falsely, withhold any testimony or information, elude legal process, absent herself from a legal proceeding or investigation, or otherwise obstruct, delay, prevent, or impede an official proceeding or investigation. In the trial below, the jury was not so charged. Therefore, defendant’s conviction for witness tampering must be vacated.
If the State seeks to re-prosecute defendant for witness tampering on remand, it has two choices. First, it can introduce the envelope addressed to A.Z. and a completely redacted letter, thereby prosecuting defendant for the act of sending a letter to the victim at her home, rather than the contents of the letter itself. A.Z., of course, can testify as she did initially to how receiving the letter impacted her.
Alternatively, if the prosecution chooses to enter the letter into evidence and focus on the contents of the letter itself, the jury must be charged that defendant can be found guilty of witness tampering only if he intended his letter to cause A.Z. to testify or inform falsely, withhold any testimony, elude legal process summoning her to testify or supply evidence, absent herself from any proceeding or investigation to which she had been legally summoned, or otherwise obstruct, delay, prevent or impede an official proceeding or investigation. If a jury finds beyond a reasonable doubt that defendant had such an intent, then his speech was integral to the criminal conduct of witness tampering and he may be constitutionally convicted for its contents.
It would probably be more effective for the State to prosecute with a completely redacted letter. Although the jury will be instructed to not speculate as to the letter’s contents, most jurors would naturally do so. Most jurors would also naturally imagine that the contents of the letter were nefarious since it was sent by a criminal defendant.