WITNESS TAMPERINGWITNESS TAMPERINGWITNESS TAMPERINGWITNESS TAMPERINGWITNESS TAMPERING
The crime of witness tampering and retaliation
against a witness is defined in N.J.S.A. 2C:28-5, included
in Part 4 of the Code of Criminal Justice, entitled
“Offenses Against Public Administration.” Section
2C:28-5 is similar to the Model Penal Code § 241.6;
however, the Legislature inserted the term “knowingly”
before the term “attempts” when it enacted the statute.
State v. Speth, 323 N.J. Super. 67, 85 (App. Div. 1999).
The statute has survived a constitutional attack on
vagueness and overbreadth grounds. State v. Crescenzi,
224 N.J. Super. 142, 148 (App. Div. 1988), certif. denied,
111 N.J. 597 (1988). And, in State v. Mancine, 124 N.J.
232, 256, 260 (1991), the Supreme Court, in relevant
part, reinstated defendant’s conviction for witness
tampering, holding that a criminal charge can be proven
through the use of a prior inconsistent statement, alone,
provided that the statement was made under
circumstances supporting its reliability, and the
defendant has the opportunity to cross-examine the
declarant.
In Crescenzi, the Appellate Division construed
N.J.S.A. 2C:28-5a to require both a knowing attempt
and purposeful action. 224 N.J. Super. at 147. The
Court took its cue from N.J.S.A. 2C:2-2b(2) which
defines “knowingly” in terms of knowing the nature of
the conduct or the attendant circumstances and knowing
the result of the conduct. Id. It also relied on N.J.S.A.
2C:5-1, which requires purposeful conduct for the
inchoate crime of attempt. Id. In Speth, the Appellate
Division ruled that in the case of witness tampering, the
criminal act is completed when the defendant attempts
to witness tamper; it does not matter whether the result
is achieved. 323 N.J. Super. at 87. Thus, the latter half
of the definition of “knowingly”, which requires that the
actor be practically certain that his conduct will cause a
particular result, is not an element of N.J.S.A. 2C:28-5.
Id. Defendant need only be aware that he was attempting
to tamper with a witness. Id. The Speth Court observed
that in N.J.S.A. 2C:28-5 the term “knowingly” modifies
the term “attempts.” Id. As such, it makes “little sense”
to require the defendant to be “practically certain” his
conduct will cause a particular result. Id. at 87-88.
The Court in Speth also ruled that the trial court did
not err by not charging the jury on the “substantial step”
requirement for the crime of attempt under N.J.S.A.
2C:5-1a(3). Id. at 88. The evidence showed that
defendant attempted to witness tamper when he
requested a meeting with the State medical examiner and
offered her a quid pro quo. Id. He did more than simply
request a meeting; hence, the “substantial step” charge
was not necessary. Id.