(N.J.S.A. 2C:28-5a)
The indictment charges the defendant in Count(s) __________ with Tampering with Witnesses [and Informants] in violation of 2C:28-5a which provides as follows:
a. Tampering. A person commits an offense if, believing that an official proceeding or investigation is pending or about to be instituted, he knowingly attempts to induce or otherwise causes a witness or informant to: (choose applicable section)
(1) Testify or inform falsely;
(2) Withhold any testimony, information, document or thing;
(3) Elude legal process summoning him to testify or supply evidence;
or
(4) Absent himself front any proceeding or investigation to which he has been legally summoned.
This offense involves knowing attempts to induce a witness or informant to testify falsely or in other ways to subvert the administration of justice.
Before the defendant can be found guilty of violating this statute, the State must prove beyond a reasonable doubt each and every one of the following elements:
(1) that the defendant believed that an official proceeding or investigation was pending or about to be instituted;
(2) that the defendant knowingly attempted to induce or otherwise cause a witness or informant to:
[INSERT APPROPRIATE SECTION]
(1) Testify or inform falsely;
(2) Withhold any testimony, information, document or thing;
(3) Elude legal process summoning him to testify or supply evidence;
or
(4) Absent himself from any proceeding or investigation to which he had been legally summoned.
Where) (3) that the actor employed force, deception,
applicable) threat or offer of pecuniary gain.
3rd Degree)
The first element provides that the defendant must have believed that an official proceeding or investigation was pending or about to be instituted. This requires that the
TAMPERING
(N.J.S.A. 2C:28-5a)
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defendant considered to be true the fact that an official proceeding or investigation was pending; in other words, that the defendant, in (his/her) mind, believed that an official proceeding or investigation was pending.
The State must prove that the defendant held this belief but need not prove that a proceeding or investigation was in fact pending or about to be instituted. The statute focuses on what the defendant believed and not on what was necessarily true and not on external factors that may be irrelevant to the defendant's aim to subvert the administration of justice.
The first element also speaks of official proceedings or investigations. The word "investigation," is not strictly limited to police investigations but covers any kind of official proceeding or investigation. "Official proceeding" is defined as:
"a proceeding heard or which may be heard before any legislative, judicial, administrative or other governmental agency or official authorized to take evidence under oath, including any referee, hearing examiner, commissioner, notary or other person taking testimony or deposition in connection with any such proceedings."
The second element of this offense is that the defendant knowingly attempted to induce or otherwise cause a witness or informant to:
[INSERT APPROPRIATE SECTION]
(1) Testify or inform falsely;
(2) Withhold any testimony, information, document or thing;
(3) Elude legal process summoning him to testify or supply evidence; or
(4) Absent himself from any proceeding or investigation to which he had been legally summoned.
Under the second element, the defendant's attempt must be a knowing one. This refers to the defendant's state of mind. A person acts knowingly with respect to the nature of (his/her) conduct or the attendant circumstances if (he/she) is aware that (his/her) conduct is of that nature, or that such circumstances exist, or (he/she) is aware of a high probability of their existence. A person acts knowingly with respect to a result of (his/her) conduct if (he/she) is aware that it is practically certain that (his/her) conduct will cause such a result. "Knowingly," "with knowledge" or equivalent terms have the same meaning.
The second element also requires an attempt. Thus, the actor need not actually induce a witness or informant to do anything.
TAMPERING
(N.J.S.A. 2C:28-5a)
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[Insert Attempt Charge]
In essence, the defendant's purpose must be to influence the behavior of the witness or informant. Having that purpose, the defendant must knowingly engage in the attempt to induce or otherwise cause the witness or informant to:
[INSERT APPROPRIATE SECTION]
(1) Testify or inform falsely;
(2) Withhold any testimony, information, document or thing;
(3) Elude legal process summoning him to testify or supply evidence; or
(4) Absent himself from any proceeding or investigation to which he had been legally summoned.
(5)
[INSERT WHERE APPROPRIATE]
[The third element requires the actor to employ force, deception, threat or offer of pecuniary benefit.
The word threat includes both overt threats and more subtle forms of intimidation. Pecuniary benefit means any gain or advantage in the form of money, property, commercial interests or anything else the primary significance of which is economic gain.]
[Discuss Specific Facts of Case]
(Select Applicable Subsections)
(1) Testify or Inform Falsely:
This section does not include efforts to induce a witness to tell the truth. The effort must be to induce the witness or informant to testify falsely.
(2) Withhold any testimony, information, document or thing.
This section reaches efforts to cause the witness or informant to withhold cooperation.
(3) Elude legal process summoning him to testify or supply evidence.
(4) Absent himself from any proceeding or investigation to which he has been legally summoned.
TAMPERING
(N.J.S.A. 2C:28-5a)
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In conclusion, in order to sustain a conviction, the State must prove beyond a reasonable doubt each and every element of this offense.
If the State has failed to prove one or more of the elements beyond a reasonable doubt, your verdict should be not guilty. If, however, the State has proven each of these elements beyond a reasonable doubt, your verdict should be guilty.
