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Witness Tempering: Beware of this Trap
N.J.S.A. 2C:28-5, Witness tempering states in subsection (a) Tampering. A person commits an offense if, believing that an official proceeding or investigation is pending or about to be instituted or has been instituted, he knowingly engages in conduct which a reasonable person would believe would cause a witness or informant to: (1) Testify or inform falsely; (2) Withhold any testimony, information, document or thing; (3) Elude legal process summing him to testify or supply evidence; (4) Absent himself from any proceeding or investigation to which he has been legally summoned; or (5) Otherwise obstruct, delay, prevent or impede an official proceeding or investigation. Depending on the factors, a violation is a crime of the first degree (if the tampering involves a crime in which an 85% sentence could be imposed, a crime of the second degree if violence was used, otherwise it is a crime of the third degree.
As one can see from reading this statute the language of the law is extremely broad, vague, and subjective. Does this law deter a defendant, his attorney, or his investigator from seeking out witnesses to prove his innocence? Such a law would seem to have a chilling effect on the search for truth by the accused, fearing that any contact by the defense with any alleged victim/witness or witness could be construed to amount to a violation of the statute.
Could such activity be considered by law enforcement, if they wanted to be unfair and aggressive charge a defendant with witness tempering for actions which are in fact legal and do not amount to witness tampering?
In fact, in one particular case in which Attorney Sanzone handled in Ocean County, the Ocean County Prosecutor did such a thing. In this case the defendant was charged with burglary. A witness at the scene (an employee of the suspect/defendant) told the police at the scene that his employer (suspect/defendant) did not enter the house. Not satisfied with the witnesses’ response, and animosity toward the suspect, the Toms River police on the scene told the witnesses that if he did not give an official sworn statement that the suspect/defendant entered the house that the witness would be arrested as an accomplice. Afraid the witness went to police headquarters and gave a sworn statement saying that his employer entered the house. A few days later, the witness having remorse that he allowed the police to intimate him in lying for the police, wrote a certified letter to the police chief stating that he wanted to retract his statement, was intimated at the scene and wanted to give a truthful statement that in fact his employer did not enter the house. A week later not having heard a response the witness sent another letter. A week later the two detectives from the Toms River Police Department appeared at his home around 11:30 P.M. without notice. Angry, the two detectives again threatened the witness telling him to if he did not stick to his original story that the witness would be arrested for filing a false police report. If that was not enough the police told the witness to say that his employer/defendant told him to write the retraction letter, and if the witness did not he would be arrested. Unfortunately, for the two detectives, the witness had audio recorded the detectives suborning perjury, committing official misconduct, and engaging themselves in witnesses tampering. The defendant a few days later sent a copy of the audio tape to the Toms River Police Department and Ocean County Prosecutor’s Office.
Amazingly, even though the Ocean County Prosecutor had possession of the audio tape in which the detectives committed witness tampering, they nonetheless indicted the employer/defendant for witness tampering. Four years later, and two days before jury selections, the Ocean County Prosecutor dismissed the witness tampering charge. The defendant went on trial in the Superior Court of New Jersey, Ocean County for second degree burglary represented by Attorney Sanzone. Jury acquitted defendant of all charges.
Yes this is a true story and court records are public and well documented. This unfortunately is what can happen with the witness tampering law. Sadly, the two Toms River Police Department detectives were never prosecuted by the Ocean County Prosecutor, admonished, or disciplined by Toms River Police Department for their gross violation of law and official misconduct. Beware.