(APPEARANCES ENTERED.) THE COURT: WELCOME, COUNSEL, MR. NINE,
PLEASE GO AHEAD. GOOD AFTERNOON, YOUR HONOR I WOULD RESPECTFULLY. SERVE TWO MINUTES
FOR REBUTTAL IF NECESSARY. UNLIKE ANY OTHER WITNESS TAMPERING STATUTE IN THE NATION.
OURS IS CURRENTLY INTERPRETED ALLOWS THE DEFENDANT TO BE CONVICTED WITHOUT
ANY SUBJECTIVE UNDERSTANDING THAT HIS SPEECH MIGHT CAUSE A WITNESS TO WITHHOLD
TESTIMONY. NO EXCEPTION TO THE FIRST AMENDMENT OR THE PRODDER FREE SPEECH
PROBATIONS UNDER OUR STATE CONSTITUTION PERMIT THAT RESULT. TODAY I PLAN TO
FOCUS THREE POINTS. FIRST THAT THE WITNESS TAMPERING PROSECUTION OF MR. HILL BASED
ON THE CONTENT OF HIS LETTER SOLELY ON AN OBJECTIVE STANDARD FALLS BELOW THE
CONSTITUTIONAL FLOOR SET BY THE SUPREME COURT. SECOND WHEN APPLYING PRINCIPLES
OF CONSTITUTIONAL AVOIDANCE AND ORDAINER RULES OF STATUTORY TRUCKS THE BEST
READING OF THE WITNESS TAMPERING STATUTE IS TO HAVE THE KNOWING MENTAL STATE APPLY
DEFENDANT MUST BE AWARE OF THE CAPACITY FOR SPEECH TESTIFY FALSELY AND THIRD,
THE CAR JACKING CONVICTION NEEDS TO BE REVERSED AGO WELL BECAUSE THE HARM IN
PRESENTING THE JURY WITH MR. HILL'S LETTER ALONGSIDE A CONSTITUTION ALLEY
INSUFFICIENT OBJECTIVE STANDARD MADE THE JURY MORE LIKELY TO VIEW MR. HILTS LETTER
AS REFLECTING CONSCIOUSNESS OF GUILT RATHER THAN PROCLAMATION OF HIS INNOCENT
AND CORPS RESPONDINGLY MADE MORE LIKELY TO CONVICT ON THE CAR JACKING DESPITE
THE STATE'S EXTREMELY WEEK EVIDENCE ON IDENTITY. TURNING TO THE FIRST POINT I
HAD LIKE TO ADDRESS STATE'S CONTENTION THAT MR. HILL IS NOT PROSECUTOR FOR A SPEECH
IN THIS CASE BECAUSE THAT IS JUST THE RECORD. IN THIS CASE THE JURY WAS
TASKED WITH LOOKING AT MR. HILL'S LETTER CONSIDERING THE CONTENTS OF IT AND
JUDGING WHETHER THAT MET THE STATUTE INFORMATION ELEMENT FOR WITNESS TAMPERING, IN
OTHER WORDS HE WAS MRS.ED BASED ON THE PROSECUTION OF HIS SPEECH AND THAT'S
WHAT PUT THIS CASE AND OTHER WITNESS PROSECUTIONS LIKE THAT WITHIN THE FIRST
AMEND. THIS ISN'T AS THE STATE CONTENDS A TENANT BASED PROSECUTION. CONTENT
BASED. THIS IS PURE SPEECH THAT'S WHY IN ORDER TO PROSECUTE MR. HILL FOR THIS LETTER
HIS SPEECH NEEDS TO FALL INTO ONE OF THE NARROWLY DEFINING EXCEPTIONS IN THE
FIRST AMENDMENT. THE SUPREME COURT HELD IF WE'RE GOING TO ANALYZE THIS PROSECUTION
UNDER A TREAT EXCEPTION THE CONSTITUTIONAL FLOOR IS RECKLESSNESS. AND HERE
THE STATUTE SIMPLY REQUIRES LIKE A CIVIL NEGLIGENCE STANDARD AS TO THE CAPACITY
FOR THE SPEECH TO CAUSE A WITNESS TO WITHHOLD TESTIMONY OR TESTIFY FALLSLY AND
THAT'S PLAINLILY INSUFFICIENT T ONLY OTHER EXCEPTION THAT HAS BEEN ADVANCED IS THE
POTENTIAL JUSTIFY INDICATION FOR THIS IS THE SPEECH INTEGRAL TO CRIMINAL CONDUCT
EXCEPTION. BUT AS I OUTLINED IN MY SUPPLEMENTAL BRIEFS AND MY RESPONSE TO
THE ATTORNEY GENERAL THAT EXCEPTION CLEARLY REQUIRES A MENS REA AN OF AT LEAST
KNOWLEDGE. EFFORT THAT THE SUPREME COURT HAS DESCRIBED THAT EXCEPTION THEY'VE TALKED
IN TERMS OF INCIDENT. SO FOR EXAMPLE IN STATE VERSUS HANSON, THE SUPREME COURT
JUST LAST TERM SAID THAT SPEECH INTENDED TO BRING ABOUT PENNSYLVANIA PARTICULAR
UNLAWFUL ACT AS NO SOCIAL THEREFORE, IT IS UNPROTECTED. THEY USED THE WORD
INCIDENT. THEY SIMILARLY USED THE BENT THEY WILLIAMS. THEY SAID SPEECH IS
UNPROTECTED WHEN IT IS ININTENDED TO PRODUCE OR INDUCE LEGAL ACT. EVERY SINGLE CASE
THAT THE SUPREME COURT HAS APPLIED THE EXCEPTION TO UP HOLD THE LAW THAT IT IS
INTEGRAL TO CRIMINAL CONDUCT, THE STATUTE IS REQUIRED. THE STATE POINT ABSOLUTELY
NO CASES ANYWHERE WHERE A COURT HAS UP HELD AN ATTACH THAT USES A RECKLESSNESS
OR NEGLIGENT STANDARD THAT'S TO THE CAPACITY FOR SPEECH UNDER THE SPEECH INTEGRAL
TO CRIMINAL CONDUCT EXCEPTION. SO IN SHORT IRE LICE HAD IT WHAT HAPPENED THIS
PROSECUTION WAS UNCONSTITUTIONAL AND BECAUSE THE JURY WAS INSTRUCTED SOLELY ON OBJECTIVE
ELEMENT THAT WOULD REQUIRE REVERSAL MR. HILL'S WITNESS TAMPERING CONCLUSION.
I DID NOT REQUEST AN OPENING STATEMENT SO OF COURSE I WELCOME THE COURT'S
QUESTIONS. THE ONLY OTHER JUSTIFICATION THAT HAS BEEN OFFERED OTHER THAN THAT THIS
IS NOT A SPEECH BASED PROSECUTION BUT WHY THIS IS WITHIN THE COUNTER OTHER EXCEPTIONS
TO FIRST AMENDMENT CASE BY OFFERED BY THE APPELLATE DIVISION THAT -- DURING
THE WITNESS TAMPERING STATUTE THE WAY WE ADVOCATE IT FOR IMPAIR COURT'S ABILITY
TO ISSUE NO CONTACT ORDER. THAT KIND OF JUST ANALYTICALLY IS INCORRECT BECAUSE
THIS IS A CRUCIAL DISTINCTION BETWEEN NO CONTACT ORDER AND PROSECUTION SOMEONE
FROM A WITNESS TAMPERING LIKE THIS ONE. A NO CONTACT ORDER ON SPEECH IT DOESN'T
SPEND DEPEND ON THE CON AT THE PRESENT TIME OF SPEECH. SO IT'S SUBJECT TO
LOWER LEVEL OF SCRUTINY. IT WOULD BE SUBJECT TO INTERMEDIATE SUBSTITUTE ANY.
SO EVEN THOUGH YOU DO HAVE A PROTECTED FIRST AMENDMENT WRITE TO CONTACT A
WITNESS GENERALLY SPEAKING IF IT'S NOT INTEGRAL TO CRIMINAL CONDUCT THE STATE IS A LOUD
TO RESTRICT THAT WITH A NO CONTACT ORDER IF IT'S TAILORED FOR THE SPECIFIC.
I AN IN MY BRIEF CRIMINAL JUSTICE REFORM AT AND THE STATUTE THERE'S STATUTORY
AUTHORITY THAT BASICALLY ALLOWS COURTS TO USE NO CONTACT ORDERS WHEN THERE'S
A REASONABLE EXPECTATION THAT THE DEFENDANT IS GOING TO INTERFERE WITH THE OBSTRUCT
THE INITIAL PROCESS. SO WHEN THE COURT IS MAKING THOSE FINDINGS BASED ON THE
INDIVIDUAL DEFENDANT BEFORE THE COURT AND THE INDIVIDUAL FACTS OF THOSE CASES THAT'S
ORDINARILY GOING TO COMPORT WITH THE CONSTITUTION. IT'S A SEPARATE ANALYSIS
THAT APPLIES IN THIS CASE BECAUSE MR. HILL IS BEING PROSECUTOR HAD BASED UPON
THE CONTENT OF HIS SPEECH. JUSTICE FABIANA PIERRE-LOUIS: WITH REGARD TO
WHETHER HIS SPEECH BASED PROSECUTION, WOULDN'T YOU AGREE THAT THE CRIME OF WITNESS
TAMPERING CAN BE COMMITTED NAIVETE OF DIFFERENT WAYS INCLUDING SPEECH BUT NOT
NECESSARILY HAS TO INCLUDE SPEECH IN ORDER FOR A PROSECUTION TO GO THIS WITNESS
TESTIMONY FIRST DEGREE ATTACH AS TO PROCEED. JOHN P. FLYNN: THERE ARE
GOING TO BE SOME WITNESS PROSECUTION STATUTES BUT I THINK THOSE ARE GOING TO BE
THE OUTLIER. THE ATTORNEY GENERAL I BOTH CITED TONS OF YOU BEEN PUBLISHED CASE
BUT THE ESSENCE OF WITNESS TAMPERING THAT YOU'RE COMMUNICATING A MESSAGE TO THE
WITNESS NOT TO TESTIFY OR TESTIFY FALLSLY. JUSTICE FABIANA PIERRE-LOUIS:
SOMETIMES THAT MESSAGE CAN BE COMMUNICATED WITHOUT ANY ACTUAL COMMUNICATION
WITHOUT ANY SPEECH SO IN THIS INSTANCE EVEN IF YOU KNOW I THINK PART OF THE
STATE'S ARGUMENT IS YOU KNOW, THE CONTENT IS NOT NECESSARILY WHAT THE FOCUS WAS HERE
BUT THE FACT THAT YOU HAVE A DEFENDANT IN THE TRIAL SENDING A LETTER TO A WITNESS
TO HER HOME THAT IS AN INTIMIDATION FACTOR THAT A WITNESS -- THAT MIGHT CAUSE
A WITNESS TO ENGAGE IN ONE OF THE PROHIBITED ACTS IN THE STATUTE. SO IF A DEFENDANT
IS JUST -- IF SOMEONE IS JUST FOLLOWING A WITNESS HOME OR STANDING OUTSIDE OF A
WITNESS' HOME, THAT'S NO -- THERE'S NO COMMUNICATION HAPPENING THERE BUT THAT COULD
STILL BE VIEWED AS WITNESS TAMPERING. JOHN P. FLYNN: THAT'S CORRECT, YOUR
HONOR. IN THAT PARTICULAR CASE IF IT WAS JUST FOLLOWING A WITNESS HOME THERE
MIGHT NOT BE AN AS APPLIED CHALLENGE WITH THE STATUTE HERE I THINK IT APPLIES
TO MR. HILL. I UNDERSTAND THE STATE IS TRYING TO SAY FOR EXAMPLE IF THIS WAS AN
OPEN LETTER IN THE NEWSPAPER THAT IT COULDN'T BE PROSECUTOR HAD AS WITNESS AMPERAGE,
BUT WHAT THE JURY WAS TASKED WITH DOING WAS LOOKING AT THE CONTENTS OF THE
LETTER BOTH SIDES THE PROSECUTOR IN PARTICULAR MADE EXTENSIVE ARGUMENTS WITH
THE THE CONTENTS OF THE LETTER. JUSTICE PATTERSON: THE JURY WAS TOLD THAT
THIS CAME BY MAIL TO HER HOME AT HER HOME ADDRESS. JOHN P. FLYNN:
THAT'S CORRECT. JUSTICE PATTERSON: AND A SIGNIFICANT ASPECT OF THIS IS
THAT INFORMED THIS VICTIM, ALLEGED VICTIM THAT THE DEFENDANT KNEW WHERE SHE
LIVED. JOHN P. FLYNN: THAT'S CORRECT. BUT THE CONSTITUTIONAL PROBLEM LICE
IN THE FACT THAT THE JURY INSTRUCTIONS SIMPLY INSTRUCTED ONE PURELY OBJECTIVE
STANDARD AS TO DEFENDANT UNDERSTANDING OF THE SPEECH. THERE WAS NO SUBJECTIVE
ELEMENTS WHICH WAS REQUIRED BY COUNTER MAN AS TO WHETHER THE DEFENDANT HIMSELF
UNDERSTOOD KNEW OR NOONINGSLY DISREGARDED FUNCTION THAT HIS SPEECH WOULD BE UNDERSTOOD
THAT WAY. THAT'S THE CONSTITUTIONAL DIRECT. SO REGARDLESS WHETHER YOU FREE WITH
ME SUFFICIENT MATTER OF LAW TO CHARGE WITNESS TAMPERING. THE CONVICTION STILL
NEEDS TO BE HE'S HAD BASED ON THE INSUFFICIENT JURY INSTRUCTION.
AND I GUESS TO KIND OF TRANSITION TO MY SECOND POINT IS THE QUESTION OF YOU KNOW
WHETHER THIS IS A SUBSTANTIALLY OVERBROAD STATUTE. WHETHER DOES CONDUCT BASED
PICTURE CONDUCT BASED PROSECUTIONS WHERE I'M CONCEDING THERE'S NOT AND APPLIED
CHALLENGE WOULD YOU KNOW OUT NUMBER OR SIGNIFICANTLY OUT NUMBER THE RATIO OF
SPEECH BASED PROSECUTION. I THINK THAT, YOU KNOW, THERE'S DOING TO BE WAY MORE
SPEECH BASED PROSECUTIONS I THINK WE'VE CITED TOPS OF CASE WHERE DIRECTLY SPEAKING
PHONE CALLS, LETTERS, SOCIAL MEDIA POSTS WHERE IT'S GOING TO TOUCH A LOT OF
SPEECH. BUT TO INVOKE THE DOCTRINE OF A CONSTITUTIONAL AVOIDANCE. YOU DON'T
KNEE TO GO SO FAR A AND SAY. YOU JUST NEED TO SAY IT PRESENTS CONSTITUTIONAL
QUESTION. IT REYES CONCERNS AS TO WHETHER IT MIGHT BE OVERBROAD ABSENT THE INTERPRETATION
THAT I'M ADVANCING. JUSTICE PATTERSON: OUR GRANT OF CERTIFICATION
IS LIMIT TO THE QUESTION WHETHER THE WITNESS TAMPERING STATUTE CITATION IS UNCUSHION
CONSTITUTIONAL OVER BROAD. THAT TRACTOR TRAILERS QUESTION BEFORE THE COURT.
JOHN P. FLYNN: SO MY ANSWER TO THAT QUESTION WOULD BE THAT YOU SHOULD AVOID THAT
SERIOUS CONSTITUTIONAL QUESTION BY NARROWLY CONSTRUING THE ATTACH AND THAT
PART AND PARCEL TO THAT QUESTION IT FAIRLY INCORP. RATES -- ANY ANALYSIS WHETHER
A STATUTE IS OVERPROUD YOU LOOK AT WHETHER IT'S YOU KNOW THERE'S ACTUAL
APPLICATIONS OF IT BEING APPLIED IN AN UNCONSTITUTIONAL MATTER. I SUBMIT THE LEAST
ONE IS THE ONE BEFORE THE CLEAR. IT'S NOT AN APPLIED CHALLENGE AS TO QUESTION
OF CERTIFICATION. TO ANSWER THE QUESTION I THINK THE BEST ANSWER TO THE QUESTION IS
THAT YOU COULD APPLY PRINCIPLES OF CONSTITUTIONAL AVOIDANCE TO NARROWLY
CONSTRUE THE ATTACH. ALTERNATIVELY YOU COULD IF THE STATUTE IS NOT CERTAIN PERSONS
NOT TO HAVE WEAPONS ACCEPTABLE. IT TO OVER BROUGHT IN ITS FACE AND YOU HAVE TO
STRIKE IT IN IT'S ENTIRETY. JUSTICE FASCIALE: LET ME ADDRESS THAT FOR A
MINUTE. WHEN SPEECH AND NON-SPEECH ELEMENTS ARE COMBINED IN THE SAME CONDUCT SUFFICIENTLY
IMPORTANT GOVERNMENTAL INTERESTS IN REGULATING THE NON-SPEECH ELEMENT CAN
JUSTIFY LIMITATIONS ON THE FIRST AMENDMENT AND THAT'S USV O'BRIEN. AND TURN
OTHER SETS OUT A TEST. AND MY QUESTION IS DOES THIS TEST APPLY. LET ME JUST
FINISH THE QUESTION. WHEN CONDUCT REGULATION INCIDENTALLY REGULATES SPEECH A STATUTE
WILL NOT BE OVERBROAD IF IT ADVANCES IMPORTANT GOVERNMENTAL INTERESTS
UNRELATED TO THE SUE PRESENTATION OF FREE SPEECH AND DOES NOT BURDEN SUBSTANTIALLY
MORE SPEECH THAN NECESSARY TO FURTHER THOSE INTERESTS. AND OF COURSE HERE WE KNOW
THE GOVERNMENTAL INTEREST IS DETERRING WITNESS INTIMIDATION. AS A THE PROPER LENS
THROUGH WHICH WE SHOULD BE LOOKING IF WE DEAL WITH THE SPECIFIC QUESTION THAT
WE CERTIFIED. JOHN P. FLYNN: I HAVE TWO PARTS TO ANSWER THAT QUESTION.
THE FIRST PART O'BRIEN TEST DOES NOT PRY BECAUSE THAT HAPPEN CASE ISN'T NOT LIKE
THAT. IN O'BRIEN FOR EXAMPLE CONDUCT AT ISSUE WAS BURNING DRAFT CARDS AND WHAT THE
SUPREME COURT HELD IN THIS CASE BURNING DRAFT CARDS IS PRIMARILY CONDUCT IN
WHATEVER SYMBOL I CAN OBSTRUCTION IT MIGHT HAVE IS PURELY INCIDENTAL TO THAT
CONDUCT. ANOTHER CASE WHERE SUPREME COURT APPLIED THAT TEST. VERY HICKS.
TRESPASSING ATTACH WHERE SOMEONE WAS LIABLE FOR TRESPASSING THEY SERVED NOTICE NOT
COMING BACK TO THIS HOUSING PROJECT AND THEN DID SO ANYWAY WITHOUT A LEGITIMATE
BUSINESS PURPOSE. AGAIN IN THAT CASE THE COURT SAID TURN TEST WILL APPLY O'BRIEN
TEST WILL APPLY. IT'S REGULATING. HERE I WOULD SAY THE WITNESS TAMPERING
STATUTE IS THE OPPOSITE. AS I SAID EARLIER THE ESSENCE OF WITNESS TAMPERING IS
COMMUNICATING THE MESSAGE TO THE VICTIM. IT'S REALLY SPEECH THAT INCIDENTALLY MIGHT HAVE
CONDUCT ATTACHED. JUSTICE FASCIALE: ALTHOUGH THE STATUTE KNOWINGLY
ENGAGES IN CONDUCT, CONDUCT. JOHN P. FLYNN: THAT'S CORRECT BUT I DON'T THINK
THAT LABEL GOVERNS -- IS DISPOSITIVE HERE. JUST BECAUSE IT'S LABELED AS CONDUCT
I STILL THINK IT'S A SPEECH BASED STATUTE. JUSTICE FABIANA PIERRE-LOUIS:
THERE'S A LOT OF WAYS TO COMMUNICATE THAT MESS AIMING TO A WITNESS. WE HAD
AN ARGUMENT EARLIER THAT INVOLVED WITNESS TAMPERING AND I DON'T THINK THERE WAS
A SINGLE FIRST AMEND. I WISH TO BE FOUND IN THAT PARTICULAR WITNESS TAMPERING
PROSECUTION. SO THIS IS JUST A LOT THAT CAN -- THERE'S A LOT OF DIFFERENT WAYS THAT
THIS PARTICULAR CRIME CAN BE COMMITTED ASIDE FROM SPEECH. THAT COMMUNICATION
TO WITNESSES NOT TO TESTIFY, TO RADIO CAN'T, THAT CAN HAPPEN IN A LOT OF DIFFERENT
WAYS BESIDES SPEECH BASED. JOHN P. FLYNN: HAVING THIS CIVIL NEGLIGENCE.
THIS IS A PICTURE REASONABLE PERSON STANDARD WOULD BE AS I GO LANTLY LOWER
THAN ANYWHERE ELSE IN THE NATION DOES IT. SO IN THESE CONDUCT BASED EXAMPLES WHERE
YOU'RE FOLLOWING A WITNESS. THE STATE IS GOING TO HAVE ABSOLUTELY NO PROBLEM
THAT THE DEFENDANT HAS KNOWLEDGE THAT THAT CONDUCT MIGHT CAUSE A WITNESS NOT
TO TESTIFY. SO THE TAILORING IS THE PROBLEM. EVEN IF YOU WERE TO APPLY A LOWER
LEVEL OF EXECUTE ANY THAT WOULD BE ONE -- THE WAY MORE NARROWLY TAILORED WAYS
TO PROTECT THE STATE'S INTEREST. MOREOVER AS I PREVIOUSLY DISCUSSED THERE'S
THE WHOLE NON-CONTENT BASE PROSECUTION. FOR EXAMPLE A CASE CITY OF TAINT PAUL.
WHEN THIS IS A CONTENT NEUTRAL WAYS CONTENT SPECIFIC WAYS OF REGULATING SPEECH
THAT'S A PROBLEM WITH TAILORING. ORDINARILY WE WILL NEUTRAL WAY TO DO IT. EVEN
IF YOU WERE TO APPLY A LESSER LEVEL OF SCRUTINY TO ANALYZE THIS STATUTE, IT
WOULD STILL AND PROBLEM AND I WOULD STILL SAY THAT NEW JERSEY WOULD BE THE RECUSES
MENS REA A. AND MOREOVER I THINK EVEN ON IT'S FACE YOU STILL WANT TO ONLY LICE THE
STATUTE. IT'S PURE SPEECH. THERE REALLY WASN'T ANY CONDUCT ATTENDED TO WHAT
MR. HILL DID HERE. AND IF THE STATE WANTED TO PREVENT -- JUSTICE WAINER
APTER: YOU AGREE VERMONT VICTIM TESTIFIED THE LETTER MADE HER SCARED TO TESTIFIES
IT MADE HER AWARE DEFENDANT OTHERWISE AVIAN OTHER TO HER KNEW WHO SHE WAS AND WHERE
SHE LIVED. JOHN P. FLYNN: THAT'S CORRECT. JUSTICE WAINER APTER:
THAT EVEN IF THE ENVELOPE ADDRESSED TOE HER AND A BLANK LEFT JUST HAD THE
DEFENDANT'S RETURN ADDRESS ON THE ENVELOPE, CORRECT. JOHN P. FLYNN: IN
THEORY THAT WOULD BE CORRECT. JUSTICE WAINER APTER: AND YOU SAID WE
KNOW HERE THE CONTENT OF THE LETTER REALLY MARRIED BECAUSE HOW MUCH THE PROSECUTOR
FOCUSED ON IT. WHICH PARTICULAR SENTENCES OF THE LETTER WAS THE PROSECUTOR
FOCUSING ONTO SHOW THAT PARTICULAR SENTENCE WAS A THREAT. JOHN P. FLYNN:
HE DIDN'T FOCUS ON IT AS MUCH AS HE WANTED TO. -P IT GOT OBJECTED TO. HE WANTED
TO READ PORTIONS OF THE LETTERS AND SEEMED TO BE TRYING TO MAKE AN ARGUMENT HE MUST
HAVE KNOWN WHAT SHE LOOKED AT FROM WHICH THING THE RHYME NOT WATCHING THE VIDEO
FOR IDENTIFICATION. THE JUDGE RULED YOU SHOULDN'T GO DOWN THAT ROUTE. WHAT
HE SAID THE PROSECUTOR SAID TAKE A LOOK AT THE CONTENTS OF THIS LETTER. IT WOULD
BE ALLAYS I ANALYSIS TO THING THAT THIS IS JUST AN INNOCENT PERSON YOU KNOW
PROSECUTOR'S OFFICING THEIR INNOCENCE. IT'S YOUR QUESTION. YOU LOOK AT THE CONTENTS
RIGHT WHAT HE IS HE SAYING TO HER. WHAT IS A REASONABLE PERSON TO TAKE FROM
IT. I'M NOT GOING TO SAY MORE THAN THAT THAT'S FOR YOU GUYS READ THE LETTER.
THEN IN DELIBERATIONS THE JURY REQUESTED -- THEY HAD A COPY OF THE LETTER WITH
THEM BUT IT WAS HANDWRITTEN SO THEY REQUESTED A TYPED VERSION WHICH WASN'T IN
EVIDENCE THEY THEN REI PLAYED DETECTIVE READING THE LETTER. THE JURY WAS LOOKING
AT THE CONTENTS OF THIS LETTER IN TOTE OH REALLY TO TRY AND DETERMINE WHETHER
IT MET THE ELEMENTS THAT THEY WERE HARMED TO TERM. JUSTICE PATTERSON:
WASN'T THE PROSECUTORS FOCUS THE FACT THAT THIS WAS APPEAR LETTER SENT TO HER
INDIVIDUALLY NOT IN A NEWSPAPER BUT A LETTER SENT TO HER INDIVIDUALLY AT HER HOME
ADDRESS AND FROM HIM. JOHN P. FLYNN: THE PROSECUTOR DID MENTION THAT
IN CLOSING AMONG OTHER THINGS. ABOUT YOU THE CONSTITUTIONAL DEFECT AGAIN IS THE
JURY INSTRUCTIONS. SO REGARDLESS OF WHETHER THE FACT THAT IT WAS SENT KNOWING
THAT HER HOME ADDRESS FROM AN INCARCERATED DEFENDANT, WHETHER WAS SUFFICIENT
TO MEET A CONSTITUTIONAL MENS REA AT LEAST THE FLOOR UNDER COUNTER MAN. THE JURY
SHRIMP WASN'T ASKED TO THAT. THE JURY'S NOT INSTRUCTED ON THE ESSENTIAL ELEMENT OF THE
CASE. REGARDLESS OF WHAT HYPOTHETICAL HOW THIS PROSECUTION COULD HAVE WENT
DIFFERENTLY OR WHAT MIGHT HAVE BEEN THE JURIES MOTIVATION TO FOR FINDING MR.
HILL GUILTY OF WITNESS TAMPERING. THEY JUST SIMPLY WEREN'T REQUIRED TO FIND
CONSTITUTIONAL MENS REA. JUSTICE WAINER APTER: WHY WOULD THAT APPLY HERE.
I THOUGHT THE OTHER CASE DEFINED ASTRAY THREAT OF AS A THREAT OF IMPLEMENT
VIOLENCE. WHERE AS HERE WITNESS TAMPERING IS A CRIME OF THE THIRD DEGREE ONLY IF
IT DOES NOT INVOLVE FORCE OR THE THREAT OF FORCE. SO SO HOW DO WE EVEN GET
NOT THE LAND OF TRUE THREATS IF WE'RE TALKING ABOUT A CONVICTION FOR THIRD
DEGREE WITNESS TAMPERING WHICH IS BY DEFINITION NO FORCE OR THREAT OF FORCE. JOHN
P. FLYNN: I WOULD AGREE IT'S NOT ALWAYS THE BEST EXCEPTION TO APPLY. WE BRIEFED
IT THAT WAY THEN IN HIGH SET CAME UP WITH A DIFFERENT EXCEPTION. I THINK THAT
EXCEPTION WOULD ACTUALLY FIT THE THIRD DEGREE CRIME A LITTLE BETTER. CONSIDER
FOR EXAMPLE DEFENDANT JUST KNOWS A WITNESS AS A FRIENDS WITH THE WITNESS HERE
MY FRIEND WE'VE BEEN FRIEND LONG TIME. PLEASE TESTIFY FALSELY ON MY BEHALF.
THIS IS NO PECUNIARY PROMISE OR ANYTHING. THE STATE IS GOING TO WANT TO PROSECUTOR
THAT AS THIRD DEGREE WITNESS TAMPERING. THAT WOULD BE PROSECUTORIALABLE
DESTINIES THAT THAT SPEECH IS GOING TO MAKE A WITNESS TESTIFY FALLSLY. FALSELY.
THAT WOULD FALL INTO THE SPEECH INTEGRAL CONDUCT BECAUSE IT'S SPEECH GETTING THAT
WITNESS TO COMMIT PERJURY. I THINK THAT'S BETTER ANALYZED UNDER THAT EXCEPTION.
THAT MIGHT HAVE BEEN JUST A DEFECT IN THE WAY WE BRIEFED IT INITIALLY. I
APOLOGIZE FOR THAT. EITHER EXCEPTION IS GOING TO REQUIRE WRECK LET'SNESS AS THE
FEDERAL FLOOR FOR TRUTH IF IT'S GOING TO BE THREATENING SPEECH OR I WOULD SUBMIT
AT LEAST KNOWLEDGE FOR SPEECH INTEGRAL TO CRIMINAL CONDUCT. JUST ONE OTHER POINT TOO
IN POINT OF THE TAILORING. THE STATE HASN'T WARNED THERE ARE AWAY WILLS ACCEPTING
LETTERS FROM PRISON USING NO CONTACT ORDERS. IT'S NOT A HEAVY BURDEN THAT
THEY HAVE TO PROVE TO GET THAT CONTRACT NEUTRAL NO CONTACT ORDER. DEFENSE
ATTORNEYS PROBABLY AREN'T -- OF COURSE THEY'LL REPRESENT THEIR CLIENTS THEY WON'T
HAVE AN INTEREST IN OPPOSE AN ORDER. DEFENSE ATTORNEYS DON'T WANT DEFENDANTS
CONTACTING THE VICTIM. EVEN UNDER LIMITED CIRCUMSTANCES THAT THE DEFENSE ATTORNEY,
THE BETWEEN TEAM MIGHT NOT GET A VICTIM'S ADDRESS. SO THERE'S ALL THIS IS
NEUTRAL WAYS THAT THE STATE IS RELYING ON THIS CASE. JUSTICE FASCIALE:
HE WAS ORIGINALLY CHARGED WITH CAR JACKING. YOU'RE SAYING THE JUDGE SHOULD HAVE
ISSUED A NO CONTACT ORDER. JOHN P. FLYNN: I'M JUST SAYING THE JUDGE COULD
HAVE. THERE WAS JUST NO CONTACT ORDER ISSUED. JUSTICE FASCIALE: NOT
USUALLY DO DO THE DONE IN A CAR JACKING CASE. JOHN P. FLYNN: I'M NOT SURE.
I'M NOT A TRIAL. JUSTICE PATTERSON: ARE YOU SAYING THAT INSTEAD
OF PROSECUTING UNDER THE WITNESS TAMPERING STATUTE THE STATE'S REMEDY SHOULD BE
ASKING FOR NO CONTACT ORDERS IN EVERY CRIMINAL CASE IF THERE'S A VICTIM. JOHN P.
FLYNN: WELL, THE STATUTES LAW REQUIRES YOU NEED A REASONABLE BASIS TO BELIEVE THAT
THE DEFENDANT MIGHT INTERFERE WITH THE CRIMINAL JUSTICE SYSTEM OR INTERFERE WITH THE
WITNESS. JUSTICE WAINER APTER: WHAT WOULD THAT BASIS HAVE BEEN HERE
BEFORE HE SENT HER THE LETTER. JOHN P. FLYNN: THIS DEFENDANT WAS TKAOE
OBTAINED THE COURT FIND NO PRETRIAL RELEASE WOULD ADEQUATE ENSURE THE DEFENDANTS
APPEAR IN COURT. SO PROBABLY THE SAME FACTS ALLEGED IN THOSE FINDINGS MIGHT HAVE
SUPPORT A NO CONTACT ORDER IN THIS CASE THEY JUST DIDN'T ASK FOR ONE, IT WASN'T
GIVEN. IT'S NOT THERE. JUSTICE NORIEGA: IS IT YOUR POSITION THAT NORMALLY
THAT WOULD HAVE HAPPENED EITHER SPOKEN RELEASE OR AT THE END OF THE DETENTION
HEARING IF THEY HAD BEEN PERMITTED TO RELEASE ON CONDITIONS THAT IT WOULD HAVE
BEEN A PART OF THAT ORDER. JOHN P. FLYNN: FROM MY UNDERSTANDING FROM
TALKING TO TRIAL ATTORNEYS GENTLEMEN OFTEN IN VIOLENT CRIMES WHEN A DEFENDANT IS
RELEASED ON PRETRIAL RELEASE CONDITIONS ONE OF THOSE CONDITIONS IS NO CONTACT
WITH THE VICTIM. JUSTICE NORIEGA: THEREFORE IF THAT HAD BEEN DONE THIS
COULD HAVE BEEN A CONTEMPT CHARGE RATHER THAN A WITNESS AMPERAGE CHARGE. JOHN
P. FLYNN: ALSO MR. HILL SHOULD BE ON NOTICE HE SHOULDN'T WRITING THE VICTIM. HE
WOULDN'T WOULD HE WOULD HAVE CLEAR NOTICE FROM THE JUDGE TELLING HIM NOT TO
DO THAT. LESS CONSTITUTIONAL PROBLEMATIC WAY OF THE FIRST AMEND. OF ACHIEVING
THE SAME RESULT. JUSTICE WAINER APTER: I KNOW YOU SAID THAT THE APPELLATE
DIVISION DIDN'T HAVE ANY BASIS FOR CONCLUDING THAT THERE'S NONE FIRST AMENDMENT
WRITE OF THE INCARCERATED DEFENDANT TO CONTACT A VICTIM BY MAIL AT THEIR HOME
ADDRESS. HAS ANY CASE EVER HELD THAT THERE IS A FIRST AMENDMENT RIGHT FOR A DEFENDANT
TO COMMUNICATE DIRECTLY WITH THE VICTIM WHO THEY DID NOT PREVIOUSLY KNOW VIA
LETTER MAILED TO THEIR HOME WHILE AWAITING TRIAL FOR A VIOLENT CRIME. JOHN
P. FLYNN: I'M YOUR HONOR AWARE OF ANY CASE THAT HAS HELD. THE PRESUMPTION UNDER
OUR SUBSTITUTE SPEECH IS PROTECTED THAT WE OPERATE FROM THAT. WE HAVE SPEECH
MIGHT BE ALARMING OR DISFAVORED OR SPEECH WOULD HE DON'T LIKE. JUSTICE
PATTERSON: IS IT YOUR COP TENSION THIS THERE IS A FIRST AMENDMENT OR STATE TUITION
ALTERNATIVE RIGHT FOR A CRIMINAL DEFENDANT TO CONTACT A VICTIM AT THAT VICTIM'S
HOME ADDRESS. JOHN P. FLYNN: NOT IF IT'S THREATENING. NOT IF IT'S
INTEGRAL TO CRIMINAL CONDUCT. NOT IF IT'S DONE TO ACKNOWLEDGE. AND EVEN THOUGH
THERE IS A PROTECTED RIGHT OTHERWISE THAT CAN BE PERMISSIBLY RESTRICTED TO NO
CONTACT ORDER WHEN THOSE SPECIFIC FINDINGS OUTLINE. JUSTICE FASCIALE:
OTHER THAN THOSE EXCEPTIONS YOUR POSITION IS THAT A DEFENDANT CHARGED WITH COMMITTING
A CRIME HAS THE FIRST AMENDMENT RIGHT TO CONTACT THE VICTIM AWAITING TRIAL.
JOHN P. FLYNN: YES, I MEAN ABSENT THOSE THREE EXCEPTIONS WHICH I THINK
WE'RE GOING TO COVER A LOT OF CASES. YOU KNOW I DON'T KNOW LIKE HOW OFTEN
IT IS THAT LIKE A DEFENDANT IS WRITING A LETTER LIKE THIS DOESN'T HAVE ANY
DOESN'T EVEN ASK THAT THE PERSON TO TESTIFY FALLSLY, THIS LETTER ASKS THE VICTIM
TO THINK ABOUT HER IDENTIFICATION AND TELL THE TRUTH. SO I DO REALLY THINK
THIS IS CAVE LIKE AN OUTLIER CASE ALTHOUGH I CITED A TO KNOW OF CASE SPEECH
BASED PROSECUTIONS I THINK MOST OF THE SPEECH THAT WERE AT ISSUE IN THAT NOT BE
DIFFERENT FOR A STATE TO PROVE. THAT HAD SPEECH INTEGRAL TO THE CRIMINAL CONDUCT
EXCEPTION OR A TRUE THREAT EXCEPTION. YOU KNOW, SO ALTHOUGH LIKE OPERATING
FROM THE BASELINE THAT THAT'S A RIGHT DEFENDANTS HAVE I DON'T THINK THE
STATE'S INTEREST IS REALLY UNDER MIND BY OPERATING FROM THAT BASELINE. THE
COURT: IS YOUR ANSWER TO THE QUESTIONS YOU'VE JUST RESPONDED TO PIVOT TOLL TO
YOUR ARGUMENT. JOHN P. FLYNN: NO, IT'S NOT. REGARDLESS OF WHAT YOU DETERMINE
WITH THAT MR. HILLS CONVICTION WAS JUST PREDICATED ON CONSTITUTIONAL ANISO
MEMBERS RAY SO IT WOULD NEED MENS REA A. ALTERNATIVE. JUSTICE WAINER APTER:
APPEAR YOU ONLY GET IF THERE'S A CONSTITUTIONAL RIGHT TO CONTACT THE
VICTIM AT THEIR HOME. IF FIRST AMENDMENT DOESN'T APPLY AT ALTERNATIVE. APPEAR
DIFFERENT SAYS THERE NOISE FIRST AMENDMENT RIGHT FOR VICTIM TO CONTACT HER HOME
AT THE. THERE NOISE FIRST AMENDMENT SCRUTINY AT ALL. IF THAT WERE CORRECT
THEN YOU DON'T GET INTO COUNTER MAN ARGUMENT OR ANY ARGUMENT ABOUT WHETHER YOU NEED
IN ORDER TO FIND IN THE INTEGRAL CRIMINAL CONDUCT EXCEPTION YOU NEED A KNOWING
OR PURPOSES FULL MENS REA A BECAUSE YOU ARE OUT THE FIRST AMENDMENT. JOHN
P. FLYNN: ON SECOND THOUGHT I THINK THAT'S RIGHT JUSTICE APTER, STEVENS IS
INSTRUCTION LEGISLATIVE IN THAT REGARD. WE DON'T JUST MAKE UP CATEGORIES OF SPEECH
THAT WERE. THAT WAS BRUTAL DEPICTIONS OF ANIMAL CRUELTY. DOESN'T SEEM LIKE
VALUABLE SPEECH BUT IT JUST DON'T FIT THE ELEMENTS OF ANY OUR PREVIOUSLY WRITTEN
CREATED PROTECTED UNLESS THERE'S A FORCIBLE LOG THAT DOES THAT. AND THIS SPEECH
HERE COULD EASILY FIT TWO HANDLE LOSS. THERE'S NO FIRST AMENDMENT INSTRUCTION
FOR CAT OUT OF THE BAGGING A VICTIM DIRECTLY AT YOUR HOME. THERE'S NO CASE THAT'S
CATEGORICALLY EXEMPT FROM THE FIRST AMENDMENT. IT JUST HAPPENS TO FALL INTO
EXISTING EXCEPTIONS. SO BY MAKING SURE THAT NEW JERSEY'S SPEAKER UNIQUE
WITNESS TAMPERING STATUTE PITS IN ONE OF THOSE TWO FEW EXCEPTIONS IS BURDENING
THE STATE'S ABILITY TO PROTECT WITNESSES. THEY'LL STILL HAVE MORE THAN ADEQUATE
WAYS TO DO IT. MEN'S OF THE MENS REA A THE JURY. IT'S REALLY DOING IT KIND OF
THE WAY HISTORICALLY IT'S BEEN DONE AND DONE EVERY WHERE ELSE IN THE NATION.
JUSTICE PATTERSON: WHEN YOUR CLIENT MOVED FOR A JUDGMENT OF ACQUITTAL
WITH RESPECT TO JAR JACKING, WAS THE ARGUMENT MADE THAT THE ADMISSION OF THE
LETTER TAINTED THE JURY IN ITS DELIBERATION ON CAR JACKING. SEE WHAT I MEAN.
THAT'S PART OF YOUR ARGUMENT. THAT WAS YOUR .3 WHEN YOU OPENED IS THAT THE CAR JACKING
CONVICTION SHOULD BE REVERSED. JOHN P. FLYNN: THAT ARGUMENT WAS \IN
ORDER\NOD MADE LOW. JUSTICE PATTERSON: AND WAS IT MADE BEFORE THE APPELLATE
DIVISION. JOHN P. FLYNN: YES, IT WAS PAID BEFORE TRENTON POLICE APPELLATE
DIVISION. .1B. APPELLATE DIVISIONS BRIEF. IN THE APPELLATE DIVISION WE BASICALLY
RELIED ON THE SAME THING I'M ADVANCING HERE WHICH IS IT MADE THE JURY MORE
LIKELY TO VIEW THE LETTER AS CONSCIOUSNESS OF GUILT AS OPPOSED TO A PROCLAMATION
OF INNOCENCE. WE CITED AN UNPUBLISHED APPELLATE DIVISION CASE WILLIAMS WHERE
A DIFFERENT PANEL REVERSED WHERE A PANEL WITNESS TAMPERING HAD PROBLEMS. WITNESS
TAKE HIM THERE'S A CONSCIOUSNESS OF GUILT AS TO THE UNDERLYING CRIME. I DON'T WANT
TO GO THAT BROAD. I'M NOT SAYING THAT EFFORT THERE'S A PROBLEM. JUSTICE
PATTERSON: I'M JUST TRYING TO FIND OUT WHAT ARE WE HERE ON ON THAT ISSUE BECAUSE
THAT WAS NOT SOMETHING I WANTED YOU TO CONFIRM IT'S NOT SOMETHING THAT APPEARS TO
HAVE BEEN PART OF THE ARGUMENT FOR MOTION OF TO JUDGMENT OF ACQUITTAL. THERE WERE
OTHER GROUNDS ON CAR JACKING ABOUT THE STRENGTH OF THE EVIDENCE. JOHN
P. FLYNN: THAT'S RIGHT I WAS FOCUSED ON THE WEAKNESSES ON THE IDENTIFICATION.
JUSTICE PATTERSON: THE TRIAL JUDGE NEVER HAD AN OCCASION TO DETERMINE WHETHER ANY
RULING WITH RESPECT TO THE PRIMARY ISSUE RAISED TOO WOULD IMPACT THE CAR JACKING.
JOHN P. FLYNN: NO, THE TRIAL JUDGE DID NOT HAVE THAT OCCASION AND THE
APPELLATE DIDN'T REACH THAT ISSUE BECAUSE ALTHOUGH IT WAS RAISED THE APPELLATE
DIFFERENT FIRST AMENDMENT VIOLATION. THE COURT: SUPPOSE THERE WERE NO
WITNESS TAMPERING CHARGE IN THE INDICTMENT AND THE I'LL PROCEEDED ONLY TO THE
BASIS OF THE CAR JACKING TO THE DEFENDANT'S STATEMENT OF LETTER HAVE BEEN AS IN THE
UNDER THE RULE AS AN AT THE SAME TIME OF PARTY OPPONENT. JOHN P. FLYNN:
IT WOULD HAVE BEEN FINE BUT THEN THE QUESTION IS WHETHER IT CALM IN UNDER 403 WHETHER
IT'S RELEVANT TO CONSCIOUSNESS OF GUILT EVEN IF IT'S POTENTIALLY ARE THE TO
THAT WHETHER IT BE SUBSTANTIALLY OUT WEIGHED TORE THE STANDING ALTERNATIVE UNDUE
PREJUDICE INVOKING SYMPATHY FOR THE VICTIM CONFUSING THE ISSUES FOR THE COURT.
I WOULD ARGUE IT WOULD NOT COME IN UNDER 4033. THE MEANING OF THIS LETTER
WOULD DISTRACT FROM THE MAIN EVIDENCE. EVEN IF YOU DISAGREE WITH ME ON THAT
MAYBE WITH A LIMITING INSTRUCTION OF SOME SORT I WOULD STILL BE MAKING THE SAME EXACT
ARGUMENT AS TO HARM. BECAUSE IT'S THE INSTRUCTION IT IS THAT WERE GIVEN TO THE
JURY THAT COLORED THE WAY IN WHICH THEY LOOKED AT THIS LETTER. AS THE
PROSECUTOR REMINDED THEM THE JURY INSTRUCTIONS TOLD THEM TO LOOK AT THIS
LETTER HOW A REASONABLE PERSON WOULD LOOK AT THE LETTER. THE JURY WAS NOT CONSTRUCTED
THAT IT WAS A HYPOTHETICAL THIRD PERSON REASONABLE PERSON. CHIEF
JUSTICE RABNER: BUT THAT CONCERN THAT YOU'RE VOICING GO -T TO WITNESS TAMPERING
NOT THE CAR JACKING. JOHN P. FLYNN: IT ALSO IMPACKETS THE CAR JACKING.
IF THEY'RE MORE LICKETY TO LOOK AT A HOW A REASONABLE PERSON VIEWS IT THEY'RE MORE
LIKELY TO VIEW THE LETTER CONSCIOUSNESS OF GUILT AS TO THE UNDERLYING JACK
JAGGING. 239 JURY RECEIVED AN INSTRUCTION THE STATE NEEDS TO PROVE BEYOND A
REASONABLE DOUBT MR. HILL IS A WEAR THAT HIS LETTER MIGHT CAUSE A WITNESS TO TIM.
THE JURY WOULD HAVE BEEN PART OF DELIBERATIONS MR. HILLS MENTAL STATE AND
WOULD HAVE HAD TO CONSIDER WAS THIS REALLY AN ON PROCLAMATION OF INNOCENCE.
BY LOWERING THE BURDEN TO A CIVIL NEGLIGENCE STANDARD WHEN THEY'RE CONSIDERING
THE LETTER IT MADE IT MORE LIKELY TO THE JURY WAS GOING TO VIEW THIS EVIDENCE
AS WITNESS TAMPERING AS A CRIME AND THEN CORRESPONDLY USE IT ASSESS CONSCIOUSNESS
OF GUILT OF THE YARR CONTACTING. ALTHOUGH IT'S MAYBE NOT THE SIGNIFICANT PREJUDICE
IN THE WORLD IT'S ENOUGH TO TIP THE SCALES IN THIS CASE BECAUSE THE STATE'S
EVIDENCE AS TO THE CAR JACKING WAS RAZOR THIN. THIS WAS AN IDENTIFICATION
THAT WAS CROSS RACIAL MADE IN EXTREMELY POOR VIEWING SETTINGS WHEN IT WAS DARK
OUT AND THE VICTIM WAS HANGING IN AND OUT OF THE CAR. HER INITIAL DESCRIPTION OF THE
PERPETRATOR LACKED HEIGHT, WEIGHT, DIDN'T POINT OUT THE SCAR THAT YOU KNOW
WAS BETWEEN MR. HILLS EYE. DURING THE ARRAY PROCEDURE HERSELF SHE HESITATED
MULTIPLE TIMES. SHE DID NOT FOLLOW THE INSTRUCTIONS CONVENTIONAL VIEWING AND
INSTEAD PAIR THE EXTRAS SIDE BY SIDE. SHE REPEATEDLY WAIVED AND LOOKED AT THE
PHOTOGRAPHS AGAIN WHEN THE DETECTIVE ASKED HER TO EXPRESS HER LEVELS OF CONSONATION.
SHE SAID THAT THE BEARD WAS DIFFERENT. THE SKIN WAS SLATER SHE REALLY THOUGHT
ANOTHER PERSON WAS IT. SO WHEN YOU LOOK AT THIS PARTICULAR FACTS HERE, THIS
IDENTIFICATION HAS SO MANY OF THE PROBLEMS THAT THIS COURT IDENTIFIED IN HENDERSON
AS POTENTIALLY LEADING TO A MISIDENTIFICATION. AND AGAINST THAT BACK
DROP, THAT CONSCIOUSNESS OF GUILT PROBLEM THAT I DESCRIBED WITH THE WITNESS
TAMPERING CHARGE WAS ENOUGH TO SPILL OVER AND LEAD THE JURY TO CONVICT ON JAR JAGGING
AS WELL. AT THE END OF THE DAY THE STANDARD. JUSTICE WAINER APTER:
ISN'T THERE ALSO VIDEO SURVEILLANCE EVIDENCE AND EVIDENCE THAT THE DEFENDANT
WAS ARRESTED WITH THE SAME CLOTHING THAT SHE HAD DESCRIBED THAT HE HAD WORN
AND IT WAS SOMEWHAT SPECIFIC SO IT WASN'T ONLY THAT SHE SAID THIS WAS THE PERSON.
JOHN P. FLYNN: RIGHT THE DEFENSE REALLY CONTESTED IF YOU LOOK AT THE
SURVEILLANCE STILLS IN THE APPENDIX IT LOOKS LIKE THE SUSPECT IS WEARING BLACK
PANTS AND SHE DESCRIBED S THE SUSPECT WEARING FDA HAD JEANS WHEN PROSECUTE
HILL WAS ARRESTED WEEKS HEAR. WHETHER THAT'S THE LIGHTING OR DIFFERENT PANTS. SHE
SAID A RED OR TAN HAT THEN HE'S EASE REGARDED WITH A RED HAT WITH A PROMINENT LOGO
THE SURVEILLANCE SHE IS BLACK HAT SO THERE WAS LIKE ALL THIS FIGHTING BADGE
AND FORTH DURING SUMMATIONS ABOUT WHETHER THE SUBSCRIPTIONS MATCHED AT ALL
AND THE DEFENSE CONTENTED THAT THEY DIDN'T. THAT WAS OVERWHELMING EVIDENCE OF GUILT
EITHER. IT'S NOT THE TYPE OF EVIDENCE THAT WOULD SUSTAIN THIS VERDICT. AT THE
END OF THE DAY IT'S WHETHER THIS CONSTITUTIONAL ERROR IS HARMLESS BEYOND
A REASONABLE DOUBT WITH RESPECT TO THE CAR JAGGING CONVICTION. IN OTHER WORDS
WHETHER THE IMPERMEABLE PRESENTATION OF THE WITNESS TAMPERING CHARGE WITH THE
STATION ALLEY INSUFFICIENT MENS REA A. JUSTICE PATTERSON: PLAIN ERROR ISSUE
ISN'T IT. JOHN P. FLYNN: IT IS PLAIN ERROR. IT IS PLAIN ERROR BECAUSE
WE DIDN'T RAISE JURY INSTRUCTION. IT IS SUBJECT TO PLAIN ERROR. THE COURT:
IS. CHIEF JUSTICE RABNER: THIS I OBJECT WITHIN THE LIMITED GRANT THE COURT
MADE. JOHN P. FLYNN: YES BECAUSE THE REMEDY UNCONSTITUTIONAL BROAD OR
NEEDS TO BE CONSTRUED ADVOCATING IS OBVIOUSLY REVERSIBLE WITNESS TAMPERING CONVICTION
BUT IT COULD FAIRLY ENCHRISTMAS REVERSAL OF THE CAR JACKING CONVICTION WHETHER THE
ERROR IS HARM FALL BEYOND A REASONABLE DOUBT WITH A WARP TO THE. CHIEF JUSTICE
RABNER: WE UNDERSTAND YOUR POSITION IS THERE ANYTHING ELSE YOU WOULD LIKE TO
ADD. JOHN P. FLYNN: NO, THANK YOU YOUR HONOR. CHIEF JUSTICE RABNER:
DEAN KEN,. DEAN RONALD K. CHEN: THAT YOU CHIEF JUSTICE RABNER MAY IT PLEASE THE
COURT I WILL NOT TAKE MUCH TIME AT ALL. I REALLY HAVE ONLY TWO POINTS. FIRST ON
THE CENTRAL ISSUE OF WHETHER THE WITNESS TAMPERING STATUTE REGULATES SUPPRESSION
OR SPEECH. EVEN PUTTING ASIDE THE PARTICULAR FACTS OF THIS CASE IF YOU EXAMINE
THE TEXT OF THE STATUTE ITSELF WHILE I AGREE JUSTICE FASCIALE IT DOES USE THE
WORD YOU CAN IT INHERENTLY DEFINES THE CRIME IN TERMS OF THE REACTION OR RESPONSE
THAT CONDUCT ENGENDERS IN THE MIND OF A THIRD PARTY, THE WITNESS AND NOT JUST
ANY REACTION OR RESPONSE, NOT ONE OF GENERAL ANXIETY OR FEAR OR BUT A SPECIFIC
RESPONSE OF PROVIDING FALSE TESTIMONY OR WITHHOLDING EVIDENCE OR ANY OF THE OTHER
SPECIFIC RESULTS. THAT ACT OF TRANSMITTING INTO THE MIND OF ANOTHER. THAT
SPECIFIC AN IDEA IS INHERENTLY ONE OF SUPPRESSION AND COMMUNICATION.
JUSTICE PATTERSON: IF SOMEONE WERE PROSECUTOR HAD FOR STANDING OUTSIDE OF
SOMEBODY'S HOUSE HOW IS THAT PROSECUTION FOR SUPPRESSION. JUSTICE PATTERSON:
LET ME BE MORE SPECIFIC. A DEFENDANT WHO IS NOT ACQUAINTED WITH THE VICTIM
WHO APPARENTLY HAS THE ADDRESS AND WHO JUST STANDS ACROSS THE STREET ON A PUBLIC
SIDEWALK AND LOOKS AT THE VICTIM'S HOUSE. DEAN RONALD K. CHEN: WELL, IF
WE'RE SPEAKING SUCH A PERSON BE PROSECUTE PROSECUTOR HAD UNDER THE STATUTE
-- JUSTICE PATTERSON: HOW IS THAT PROSECUTION FOR COMPRESSION. DEAN
RONALD K. CHEN: IT WOULD BE I GUESS SUPPOSE THE SYMBOL I CAN SUPPRESSION OF
ENGENDERING FEAR IN THE OTHER PARTY. JUSTICE PATTERSON: THAT'S SUPPRESSION.
DEAN RONALD K. CHEN: IT'S COMMUNICATIVE IT WOULD BE UNPROTECTED. JUSTICE
PATTERSON: I WAS ABOUT TO ASK YOU THAT. IS IT YOUR POSITION THAT THERE IS A FIRST
AMENDMENT RIGHT TO ENGENDER FEAR IN THE VICTIM OF A CRIME. DEAN RONALD K.
CHEN: ABSOLUTELY NOT, JUSTICE PATTERSON. ALL I'M SAYING IS THAT ONES THE STATUTE
HAS BEEN FOUND TO REGULARLY EXPRESS AN ACTIVITY THEN THE CONSTITUTIONAL PROTECTIONS
THAT THE COURTS IN PARTICULARLY THE COUNTER MAN CASE IN THE CONTEXT OF THIS
CASE COME INTO PLAY TO MAKE SURE THAT A STATUTE ONLY -- PROPERLY INTRUDES ON
PRESS I HAVE ACTIVE BECAUSE THE A OC ACKNOWLEDGE SOME TYPES OF EXPRESSIONS AND
SPEECH THAT THE FIRST AMENDMENT DOES NOT PROTECT. HOWEVER, ONCE THE STATUTE HAS BEEN
FOUND TO REGULATE EXPRESS I HAVE SPEECH WE DO HAVE SPECIAL CONSTITUTIONAL TESTS
THAT ARE ACQUIRED TO PROTECT AGAINST INTRUDING INTO PROTECTED SPEECH. SUCH
AS IN THIS CASE THE REQUIREMENT OF COUNTER MAN THAT THE MENS REA REQUIREMENT BE
SOMETHING MORE THAN IT WAS IN THIS CASE AS COUNSEL NOTED THE FAIRLY UNUSUAL CASE
IN WHICH IT'S A CIVIL NEGLIGENCE STANDARD. COUNTER MAN CLEARLY REQUIRED AT LEAST
A SUBJECTIVE STANDARD IN WHICH THE CRIMINAL DEFENDANT HAD SOME SUBJECTIVE AWARENESS
OF THE -- JUSTICE PATTERSON: LET ME ASK ABOUT A CIVIL NEGLIGENCE
STANDARD. YOU'RE AWARE THAT'S THE WORLD IN WHICH I PRACTICE. WHEN YOU HAVE APPEAR
CIVIL NEGLIGENCE STANDARD THE INDIVIDUAL WHO IS BEING JUDGED UNDER THE REASONABLE
PERSON STANDARD IS THE DEFENDANT, THE CIVIL DEFENDANT, THE PERSON WHO IS ALLEGED
TO HAVE COMMITTED THE DEFENDANT. SO YOU LOOK AT WHETHER THE PERSON WHO IS THE
DEFENDANT, THE ACTOR ACTED CONSISTENTLY WITH A REASONABLE PERSON STANDARD. THIS
ISN'T QUITE THAT. THIS ISN'T IS NOT A STATUTE THAT REQUIRES A JURY TO LOOK AT
WHETHER THE DEFENDANT ACTED REASONABLY. IT IS ASKING THE JURY TO WHETHER THE
VICTIM, A REASONABLE PERSON IN THE VICTIM'S CIRCUMSTANCES I'M NOT QUOTING IT
EXACTLY WOULD BE PROMPTED TO TAKE CERTAIN ACTIONS THAT ARE OBVIOUSLY ANTI THEY
TELL CAL FOR THE SEARCH OF THE TRUTH IN A CRIMINAL TRIAL. I'VE HEARD REPEATED
REFERENCES THIS IS JUST CIVIL NEGLIGENCE. BUT THE CIVIL NEGLIGENCE YES IT USES
THE TERM REASONABLE PERSON BUT IT'S REASONABLE PERSON BEING THE TORT
DEFENDANT, THE PERSON WHO ALLEGEDLY CAUSED THE HARM. THIS IS REALLY SOMETHING
DIFFERENT. DEAN RONALD K. CHEN: IT IS HOLDING THE CRIMINAL DEFENDANT
RESPONSIBLE FOR WHAT A JURY WOULD DETERMINE AND NOW ACTUALLY A HYPOTHETICAL
REASONABLE PERSON WOULD CONSTRUE HIS CONDUCT TO BE. IN A WAY IT REALLY IS PUTTING
THE CRIMINAL DEFENDANT AT A DOUBLE RISK OF TRYING TO PREDICT. JUSTICE
PATTERSON: NO, IT'S NOT ASKING THE JURY TO FIGURE OUT WHAT THE REASONABLE PERSON
THINGS THE DEFENDANT DID, IT'S ASKING THE JURY TO FIGURE OUT WHAT A REASONABLE PERSON
WOULD DO AS A RESULT OF THE CONDUCT, SEE WHAT I AM SAYING? I'M NOT COMMENTING
ON THE GENERAL ISSUE OF CONSTITUTIONALITY. BUT THAT IS NOT AN IF CIVIL STANDARD.
DEAN RONALD K. CHEN: AND CERTAINLY THE LABEL OF CIVIL NEGLIGENCE STANDARD
IS NOT NECESSARY TO THE COURT, THE ARGUMENT. IT CLEARLY IS A STANDARD THAT
FALLS WELL BELOW WHAT COUNTER MAN REQUIRES WHICH IS THAT THE CRIMINAL DEFENDANT
THEMSELVES HAVE SOME CONSCIOUS AWARENESS OF HOW HIS WORDS WILL BE INTERPRETED
RATHER THAN HIGH POT INDICATING HOW A REASONABLE PERSON WOULD INTERPRET THOSE
WORDS. JUSTICE FASCIALE: HOW DO YOU SWEAR THAT THEN WITH THE GENERAL CHARGE
GIVES THE JURY IN WHAT KNOWINGLY MEANS. I HAVE THE STATUTE IN FRONT OF ME.
A PERSON COMMITS AN OFFENSE IF HE KNOWINGLY ENGAGES IN CONDUCT AND THEN IT GOES
ON. DEAN RONALD K. CHEN: I THINK THE KNOWING APPLIES TO THE ACT ITSELF
WHICH IN THIS CASE REALLY DOES NOT SEEM TO BE IN DISPUTE. NO ONE QUESTIONS
THAT MR. HILL WROTE THE LETTER AND PRESUMABLY THAT ACT OF WRITING THE LETTER WAS
INTENTIONAL PURPOSEFUL, INTENTIONAL OR KNOWING. JUSTICE FASCIALE: IT'S
NOT KNOWINGLY WRITING THE LETTER. IT'S KNOWINGLY ENGAGING IN CONDUCT WHICH
A REASONABLE PERSON WOULD BELIEF WOULD CAUSE A WITNESS OR INFORMANT TO AND THEN
IT GOES ON. DEAN RONALD K. CHEN: I THINK THE IN A NATURAL INTERPRETATION
OF THAT STATUTE YES HE KNOWINGLY ENGAGED IN CONDUCT OF WRITING A LETTER. BUT
IT IS THE EFFECT OF THAT LETTER IN THE MIND OF ANOTHER THAT IS SUBJECT TO THIS
REASONABLE PERSON STANDARD. JUSTICE FASCIALE: AS TO JUSTICE PATTERSON
REASONABLE PERSON IN THE FIELD OF TORT LIE AND AS IT'S USED IN THIS STATUTE. THE JUDGE
CHARGES THE JURY THAT THE STATE HAS THE BURDEN OF PROOF TO PROVE EACH AND EVERY
ELEMENT BEYOND A REASONABLE DOUBT AND KNOWING IS WOULD BE OF THOSE ELEMENTS
THAT MUST BE STABBED IN THIS STATUTE. DEAN RONALD K. CHEN: AGAIN I WOULD
TURN TO MY INTERPRETATION THAT THE KNOWING ELEMENT IN THAT CASE IN REGARDS
TO THE ACTUAL ACT ITSELF OF COMMUNICATING THE LETTER WHICH IS REALLY NOT IN
DISPUTE IN THIS CASE. THE SECOND POINT I WANTED TO MAKE, YOUR HONOR.
JUSTICE PATTERSON: CAN I JUST PAUSE YOU ON THAT AND I APOLOGIZE FOR THAT. WHEN YOU
SAY IT'S NOT IN DISPUTE, THAT CLEARLY APPEARS TO BE THE CASE. BUT IT IS
RELEVANT TO THE QUESTION WHETHER THE STATUTE IS OVERBROAD. BECAUSE IT IS NOT
GOING TO APPLY BY ITS VERY TERMS TO SPEECH THAT AS TO WHICH THAT KNOWING ELEMENT IS
NOT ESTABLISHED BEYOND A REASONABLE DOUBT. JUSTICE PATTERSON: IT'S NO IN
DISPUTE HERE IS NOT THE CENTRAL POINT. DEAN RONALD K. CHEN: I'M TRYING
TO IMAGINE A SITUATION IN WHICH THE COMMUNICATIVE ACT THAT TRIGGERS THIS
REACTION OR THIRD PARTY IS NOT INTENTIONAL. THE ACT OF COMMUNICATION WASN'T
INTENTIONAL BUT SOMEHOW ACCIDENTAL. JUSTICE NORIEGA: HERE IS A HYPOTHETICAL
THAT MIGHT RESOLVE THAT. WHAT IF THE DEFENDANT WAS PUTTING OUT \LEAF\LEAVE
LET'S NOT REALIZING THAT THE VICTIM'S HOUSE WAS ONE OF THE ONES GETTING THE
DOCUMENT BUT THERE WAS THE DEFENDANT'S ADDRESS IS THERE, THE PICTURE OF THE
DEFENDANT AND NOW THE VICTIM GETS A PICTURE OF THE DEFENDANT WITH A COMMUNICATION
AT HER HOME. DOES THAT SORT OF FIT. DEAN RONALD K. CHEN: THEN I SUPPOSE
IT WOULD BE TWO FACTUAL ISSUES, WAS THE ACT OF COMMUNICATION INTENTIONAL BUT
AND EVEN IF IT WAS, WAS THE -- WAS THE REACTION THAT IT TRIGGERED IN THE
REASONABLE PERSON IN A REASONABLE PERSON VIEW THAT IT WOULD TRIGGER IN THE WITNESS'
MIND WHY LEVEL OF COUNTER MAN REQUIRES. IT VERY WELL MAY NOT. CERTAINLY IF IT'S
INSTRUCTED UNDER THE CURRENT STATUTE. JUSTICE NORIEGA: SO YOU'RE ARGUING ONE
INTERPRETATION OF THE STATUTE IS THERE ARE TWO STATES OF MINDS THAT APPLY IN
REVIEWING THE STATUTE. ONE IS THE DEFENDANT'S INTENTION OF ACTUALLY MAKING
THE COMMUNICATION AND HEN THE SECOND PART IS HOW THAT THEN BECOMES INTERPRETED BY
A REASONABLE PERSON WHICH IS A LOWER STANDARD. DEAN RONALD K. CHEN: YES,
YOUR HONOR -- JUSTICE NORIEGA. THE SECOND PART I WANTED TO MAKE WHICH IS A
POINT \HAD A\WHAT IS MADE IN SIMILAR CASES INCLUDING STATE VERSUS CAL VIN FAIR
WHICH I KNOW THE COURT HEARD A FEW WEEKS AGO. IS IT'S CONCERN ABOUT THESE CRIMES
THAT DEPEND -- THESE EXPRESS I HAVE CRIMES THAT DEPEND UPON THE REACTION OF
SOME THIRD PARTY OR VICTIM. IN THAT CASE IT WAS ALLEGED VICTIM OF A THREAT
CASE. AND THAT IS -- THESE TYPES OF CRIMES WELL NOT OF COURSE NOT INHERENTLY ON ITS
FACE ON CONSTITUTIONAL DANGER OF IMPLICIT BIAS AND HOW MESSAGES LIKE THAT ARE
INTERPRETED. WE ARE ALL SUBJECT TO IMPLICIT BIAS THROUGH OUR BACK GROUNDS
AND HOW WE WERE RAISED AND WE WILL INTERPRET DIFFERENT LANGUAGES -- DIFFERENT
SYMBOLS, DIFFERENT ACTS DIFFERENTLY. AND I THINK THERE IS A DANGER WHEN ONE SUBJECTS
TO A CRIMINAL DEFENDANT TOO MUCH TO THE VAGARIES THAT CAN BE INJECTED WHEN
THE CRIME IS PRESSURED IN SOMEWAY BY THE REACTION OF A THIRD PARTY. THAT IS
ALL THE MORE REASON SAYING THAT THAT MEANS THAT SUCH CRIMES ARE INHERENTLY
CONSTITUTIONAL. IT PROVIDES AN ADDITIONAL REASON WHY THE CONSTITUTIONAL PROTECTION
SUCH AS THE HEIGHTENED MENS REA A STANDARD THAT APPLIES IN THIS CASE SHOULD BE
IMPLIED IN FULL FORCE IN CASES LIKE THAT TO AVOID THE DANGERS INHERENT IN IMPLICIT
BIAS, I WILL BE HAPPY TO ANSWER ANY FURTHER QUESTIONS BUT THAT'S ALL. CHIEF
JUSTICE RABNER: THANK YOU. MA'AM. DORIS CHEUNG: MAY IT PLEASE THE COURT THE
A CDL BREEZE WITH THE POSITION THAT THE SUBSTITUTE IS SKEWS AND AND MR. HILTS
PROCEEDINGS WOULD BE REVERSED I'D JUST TO I CAN LOOK MAKE TWO POINTS. ONE THE
STATUTE DOES IN FACT REGULATE SPEECH AND THEREFORE, IS SUBJECT TO COUNTER MAN'S
HOLDING THAT THERE SHOULD BE A SUBJECTIVE MENS REA A A THAN THAT HAS TO BE
RECKLESS KNOW OR SOMETHING MORE THAN RECKLESSNESS. HERE HILL WAS NOT INTEGRAL TO
CRIMINAL CONDUCTED BECAUSE HE MERELY SENT A LETTER BUT BECAUSE OF THE CONTENTS
OF THE LETTER ITSELF WHICH WAS READ TO THE JURY. VERY LITTLE CONDUCT WAS
EXPLICITLY VIOLENT OR STALKING WILL EVER FOLLOW IN THE AMBIT OF THE STATUTE
INVOLVING SPEECH AND AS DEAN KEN HAD POINTED OUT IT'S BECAUSE THE WITNESS -- THERE
HAS TO BE SOME FORM OF COMMUNICATION WITH THE WITNESS IN ORDER FOR THEM TO
TESTIFY FALSELY OR TO NOT TESTIFY AT ALL. IT IS OUR POSITION THAT THE STATUTE
IS WRITTEN DOES BURDEN SPEECH MORE THAN NECESSARY. AND THE SECOND ARGUMENT THAT
I WOULD LIKE TO POINT OUT IS THAT AS THIS COURT POUND IN POM YAK IF THE PERSON
DIVIDING LINE BETWEEN LEVEL BLAZER AND CRIMINAL MIGHT HAVE THEN THE STATUTE
IS UN\CONSTITUTION\SUBSTITUTION ALLEY VAGUE. THIS CASE INTER SECRETARIES WITH THE
FIRST AMENDMENT. AN ORDINARY PERSON WILL NOT KNOW -- MAY NOT KNOW THAT THE
MERE ACT OF TALKING TO THE WITNESS OR CONTACTING THE WITNESS IS CRIMINAL. AND
BECAUSE THE STATE. JUSTICE PATTERSON: COUNSEL VAGUENESS IS NOT BEFORE
THE COURT IS IT CHUCK. DORIS CHEUNG: NO, YOUR HONOR. WE SUBMIT BASE THE
STATE BEARS THE REASONABLE DOUBT THAT THE DEFENDANT HAD TO HAVE THE OBJECTIVE SPENT
TO CRIMINAL WILL MR. HILLS CONVICTION SHOULD BE REFERRING HAD. CHIEF JUSTICE
RABNER: THANK YOU. MR. MACK. PATRICK R. McAVADDY: GOOD AFTERNOON YOUR
HONORS ANIME IT PLEASE THE COURT. THE STATE RESPECTFULLY REQUESTS THAT THIS
COURT AFFIRM THE APPELLATE COURT'S DECISION SPECIFICALLY IT'S DETERMINATION
THAT THE NEW JERSEY WITNESS TAMPERING STATUTE IS NEITHER FACIALLY OVERBROAD
NOR OVER BROAD AS APPLIED IN THIS CASE. TO AS A RESULT WITH THE FACIAL CHALLENGE
OUR CASE LAW MAKES CLEAR THAT FACIAL INVALIDATION IS USED SPARINGLY AS A LAST
RESORT AND THAT THE BURDEN HERE ON THE DEFENDANT IS A HIGH ONE. NOT ONLY DOES
HE HAVE TO SHOW THAT THIS STATUTE WENT FURTHER THAN PERMISSIBLE AND NECESSARY TO
FULFILL THE STATE'S INTEREST BUT HE HAS TO SHOW THAT THIS STATUTE ENCUMBERED
A REAL AND SUBSTANTIAL AMOUNT OF CONSTITUTION ALLEY PROTECTED SEEP OR
CONDUCT. THE STATE'S INTEREST HERE AS DISCUSS IN ADDITION THE CASE AND BELOW
IS A FUNDAMENTALLY IMPORTANT ONE THAT GOES TO THE VERY HEART OF OUR JUDICIAL
SYSTEM. IT IS THE INTEREST IN PREVENTING THE INTIMIDATION AND HE KNOWS 15 OF
WITNESSES IN FORMER VICTIM'S IN CRIMINAL MATTERS. AND THIS CASE ALSO INVOLVES A
STATUTE THAT BY IT'S PLAIN READING REGULATES CONDUCT NOT SPEECH. ANY SPEECH
THAT MAY BE WRAPPED UP IN THIS STATUTE IS INCIDENTAL. THIS IS A STATUTE THAT
TARGETS CONDUCT. MAKING THE BURDEN ON DEFENDANT HERE EVEN HIGHER. UP AGAINST
THIS HIGH BURDEN THE DEFENDANT TRACTOR TRAILERS NOT PROVIDE SUFFICIENT REAL AND
SUBSTANTIAL EXAMPLES. IN YOUR CASE LAW WHERE THE STATUTE ENCROACHED UPON
CONSTITUTIONAL PROTECTED CONDUCT. ON THE OTHER HAND THERE ARE NUMEROUS EXAMPLES
IN OUR CASE LAW WHERE THE WITNESS TAMPERING STATUTE WAS VALIDLY APPLIED TO
REGULATE UNPROTECTED CONDUCT. AND IN THE ATTORNEY GENERAL'S BRIEF THEY LIST NUMEROUS
EXAMPLES JUST WITHIN THAT SUB SECRETARY WHERE THE STATUTE REGULATED UNPROTECTED
CONDUCT. FOR EXAMPLE, MURDERING A WITNESS TO PREVENT THEM FROM TESTIFYING
IN ATOMS OR TAKING A WITNESS ACROSS STATE LINES TO PREVENT THEM FROM COOPERATING
IN SEE BROOK ALTERING AN ARREST REPORT IN CON WAY WHERE IT WAS ALL PURELY CONDUCT
THAT WAS REGULATED UNDER THE STATUTE. EVEN IF THERE WERE EXAMPLES PROVIDED HERE
AND THERE, THE OCCASIONAL CASE THACKS HAVE A FACT PATTERN THAT MAY TOUCH UPON
SPEECH CONSIDERATIONS INITIAL INVALIDITY IS STILL NOT THE RIGHT SOLUTION HERE
FOR THOSE CASES. FOR ONE THING, NOT ALL SPEECH THAT MIGHT BE IMPLICATED BY
THE SPASM IS NECESSARILY PROTECTED SPEECH. IN ONE CASE THE COURT FOUND THE
STATE IS ALLOWED TO CRIMINAL LICE SPEECH THAT FURTHER CRIMINAL CONDUCT. ALSO EXPRESS
I HAVE CONDUCT IS NOT NECESSARILY PRO ACCIDENTED SPEECH JUST BECAUSE THE ACTOR
IS INTENDED TO CONVEY A MESSAGE. IF THAT WERE THE CASE AS THE US SUPREME COURT
RIGHT-HAND ANY LAW COULD THEORETICALLY BE CHALLENGED AS INFRINGING ON SOME
FORM OF SUPPRESSION. AND DEFENDANT TO ADDRESS DEFENDANT'S CLAIM HERE THAT THE
STATUTE DOES INFRINGE UPON PURE SPEECH AGAIN WITHOUT PROVIDING A REAL OR SUBSTANTIAL
AMOUNT OF EXAMPLES OF THAT THE SOLUTION IS NOT FACIAL INVALIDITY, IF THERE WAS
A FACT PATTERN THAT CAME BEFORE THE COURT THAT SEEMED TO HAVE SOME MERIT WITH
REGARD TO PURE SPEECH, THE SOLUTION THERE WOULD NOT BE FACIAL INVALIDITY IT WOULD
BE TO ADDRESS THAT AS APPLIED CHALLENGE. AND JUST TO TURN TO THE AS APPLIED
CHALLENGE HERE, DEFENDANT CLAIMS THAT HIS SPEECH WAS -- THAT HIS SPEECH WAS
INFRINGED UPON BY THIS STATUTE. BUT HE WAS NOT CHARGED WITH WITNESS TAMPERING
BASED ON ANY LANGUAGE, ANY CONDUCT -- ANY EXPRESSED IDEA IN THE CONTENT OF
THAT LETTER. HE WAS CHARGED WITH WITNESS TAMPERING BECAUSE HE ENGAGED IN THE
CONDUCT OF SENDING THAT LETTER TO THE VICTIM'S HOME, MAKING IT CLEAR TO HER THAT
HE KNEW WHO SHE WAS, WHERE SHE LIVED AND THAT HE WAS WILLING TO ACT ON THAT
KNOWLEDGE. AND THAT'S WHAT IMPLICATED WITNESS TAMPERING HERE. WITNESS CONTENT
NEUTRAL APPLICATION WAS FOCUSED ON THE TIME PLACE AND MANNER BODILY INJURY WHICH
HE ENGAGED IN THIS CONDUCT AND RELIED THIS TO THE VICTIM AND IT WAS REALLY THE
INAPPROPRIATENESS FOR THE PLACE AND MANNER THAT MADE ALL THE DIFFERENCE. IN REASONABLE
PERSON HERE LETTED BY THE JURY COULD LOOK AT THAT CONDUCT AND REASONABLY FIND
THAT THE VICTIM WOULD REACT THAT -- WOULD REACT TO THAT CONDUCT BY ENGAGING
IN ONE OF THE FIVE ENUMERATED ACTIONS HERE ULTIMATELY HINDERING THE PROCEEDING
AND IN FACT THE JURY HERE DID HEAR FROM THE VICTIM DURING TRIAL, SHE TESTIFIED THAT
WHEN SHE RECEIVED THAT LETTER SHE MADE NO COMMENT SPECIFICALLY ON ANY LANGUAGE IN
PARTICULAR. SHE SAID WHEN THOUGH GOT THAT LETTER AND SHE REALIZED WHO IT WAS
FROM SHE BECAME TERRIFIED AND SHE SERIOUSLY RE-EVALUATED WHETHER OR NOT SHE
FELT SAFE CONTINUING TO COOPERATE WITH THE PROCEEDINGS. JUSTICE WAINER APTER:
DIDN'T YOUR ADVERA SAYING IF ALL YOU WANTED TO ADMIT WAS A LETTER WAS SENT.
IT HAD NOTHING TO DO WITH THE CONTENT OF THE LETTER AND THEN THE VICTIM TESTIFIED
THAT THE FACT THAT SHE RECEIVED THE LETTER SCARED HER THEN THE LETTER WOULDN'T HAVE
TO BE ADMITTED IN EVIDENCE, THE JURY REQUESTED SPECIFICALLY TO READ THE
LETTER, A TYPEWRITTEN VERSION OF THE LETTER THEN THEY HAD TO LISTEN TO A READ
BACK OF THE WHOLE LETTER. THE PROSECUTOR IN CLOSING SPECIFIC MRI TALKED ABOUT HOW
THE JURY SHOULD READ THE LETTER, RELIED ON THE TEXT OF THE LETTER. SO HOW IS THAT
CONSISTENT WITH THE ARGUMENT YOU JUST MADE THAT IT HAS NOTHING TO DO WITH THE
TEXT OF THE LETTER AND IT'S JUST ABOUT THE FACT THAT ANY LETTER WAS SENT AND
THE ENVELOPE COULD HAVE BEEN EMPTY. PATRICK R. McAVADDY: YES YOUR HONOR
IT'S INTERESTING TO TRY TO SWEAR THE TWO POSITIONS THAT THE DEFENSE TAKES
THROUGHOUT THIS WHOLE PROCEEDING WHERE ON THE ONE HAND ZERO SAYING ACTUAL WORDING
IN THE LESSOR WAS INNOCUOUS NOTHING OTHER THAN A PLEASANT LETTER. BUT ON THE
OTHER HAND HERE AOE THEY'RE THOUGH SAYING I'M SORRY, I LOST MY TRAIN OF THOUGHT.
HERE THE ACT OF GETTING THE LETTER MADE ALL THE DIFFERENCE. EVEN THOUGH THE
JURY ASKED TO READ THE LETTER ASKED TO LOOK AT IT. THE DEFENSE IS ARGUING
NOTHING IN THAT LETTER WOULD SUGGEST WITNESS TAMPERING BECAUSE IT WAS AN INNOCENT
LETTER SENT WITH NOTHING WRONG WITH IT. SO REALLY WHEN YOU'RE LOOKING AT WHY
THE JURY WOULD HAVE FOUND WITNESS TAMPERING HERE AND REALLY I HINGE THE POWERFUL
THING THEY HEARD WAS FROM THE VICTIM HERSELF WHO TESTIFIED THAT IT WAS THE
ACT OF RECEIVING IT THAT MADE HER RECONSIDER ALL OF THIS PAP. JUSTICE WAINER
APTER: BUT YOU COULD SEE HOW DEFENDANT COULD HAVE ARGUE IN ADDITION THEORY NO,
THE CONTENTS OF THE LETTER WERE INNOCUOUS AND THE PROSECUTOR COULD HAVE SAID EVEN
OKAY WE AGREE THE CONTENTS WERE INNOCUOUS, IT IS THE FACT THAT THE LETTER WAS SENT
AND IT INFORMED THE VICTIM THAT THE DEFENDANT KNEW WHERE SHE LIVED THAT'S
WHERE IT WAS THREATEN, IN CLOSING THE ALREADY SAID NO READ ALL THE WORDS IN THE
LETTER, YOU'LL BE THE JUDGE. PATRICK R. McAVADDY: I THINK IT'S IMPOSSIBLE
TO LOOK AT THE JURY WHETHER OR NOT THEY TOOK THE PROSECUTOR'S SUMMATION AND GAVE
IT MORE WEIGHT BE THE VICTIM'S TESTIMONY, I WOULD MAN INCULPATORY THE VICTIM'S
TESTIMONY HEAD THE REAL DIFFERENCE HERE AND WHEN SHE MADE IT CLEAR THAT --
IT WASN'T THE ACTUAL CONTENTS. IT WAS CAN CONTENTION IN WHICH SHE RECEIVED THE
LETTER THAT MADE HER ENGAGE IN OR POSSIBLE CONSIDER ENGAGING IN ONE OF THESE FIVE
ACTIONS, THAT BEFORE THE JURY WOULD HAVE MADE ALL THE DIFFERENCE IN THEIR DECISION
TO FIND DEFENDANT GUILTY OF WITNESS TAMPERING HERE. CHIEF JUSTICE
RABNER: AS TO THE DISTINCTION BETWEEN CONDUCT AND SPEECH THAT YOU'RE
STRESSING, SUPPOSE THIS WERE A CASE THAT INVOLVED TWO INDIVIDUALS THAT KNEW ONE
ANOTHER FROM BEFORE, THE DEFENDANT AND THE VICTIM HAD BEEN FRIENDS, HAD BEEN
ASSOCIATES AND AFTERWARD THE DEFENDANT SENDS A TEXT MESSAGE TO THE FORMER FRIEND
HAPPY BIRTHDAY. IS THAT ENOUGH TO SUSTAIN A CONVICTION YOU SHOULD THE STATUTE.
PATRICK R. McAVADDY: UNDER THAT FACT PATTERN YOUR HONOR LIKELY NOT. CHIEF JUSTICE
RABNER: WOULDN'T YOU NEED TO LOOK AT CONTENT AS A RESULT. PATRICK R. McAVADDY:
I DON'T BELIEVE SO, YOUR HONOR, IN THAT REGARD RECEIVING A TEXT MESSAGE YOU
KNOW THE REASONABLE PERSON HERE AS THE JURY WOULD PUT THEMSELVES IN YOUR SHOES
SAYING YES I RECEIVED A TEXT MESSAGE TO MY PERSONAL DEVICE. I KNOW HOW THIS PERSON
HAD THAT NUMBER. IN THAT CASE THE TIME PLACE AND MANNER WOULD SEEM TO BE
REASONABLE SO THEN MAYBE YOU WOULD LOOK AT CONTEXT OR I'M SORRY CONTENT AND
FIND IT'S NOT A THREAT, IT'S NOTHING THAT'S NOT PROTECTED SPEECH AND IN THAT
SITUATION I THINK THE WITNESS TAMPERING WOULDN'T BE CHARGED OR SHOULDN'T BE CHARGED
UNDER THAT FACT PATTERN BECAUSE IT WOULDN'T SEEM TO RUN AFOUL OF ANY OF THE
ELEMENTS HERE. AND I DON'T BELIEVE A REASONABLE PERSON LOOKING AT THAT WOULD
FIND THAT IT RAN AFOUL OF THE STATUTE. JUSTICE PATTERSON: DEPENDS ON THE
CIRCUMSTANCES. PATRICK R. McAVADDY: CORRECT, YOUR HONOR. HERE AGAIN
HERE IF YOU TOOK THE CONTENT OF THAT LETTER AND YOU PUT IT IN A NEWSPAPER OR HE SAID
IT DURING AN INTERVIEW OR ANY OTHER DIFFERENT TIME PLACE AND MANNER YOU HAVE
TWO DIFFERENT CASES THERE WHERE THE CONTENT OF THE LETTER IS THE SAME BUT THE
WAY THAT IT WAS RELAYED WAS DIFFERENT THAT'S MAKES ALL THE DIFFERENCE BECAUSE
IT WASN'T ANYTHING IN THAT LETTER, IT WAS THE FACT THAT SHE GOT IT AT HER HOME AND
REALIZED THAT THE HER SALIENT IN THIS VIOLENT CAR JAGGING NOT ONLY KNOWS WHERE
SHE LIVES BUT HE'S WILLING TO DO SOMETHING WITH THAT KNOWLEDGE. CHIEF
JUSTICE RABNER: WHY THEN GOING BACK TO THE QUESTION INTRODUCE THE LETTER
ALTOGETHER. PATRICK R. McAVADDY: THEORETICALLY YOUR HONOR I DON'T THINK
TO SATISFY THE WITNESS TAMPERING STATUTE I DON'T THINK THE JURY NEEDED TO SEE
THE CONTENT OF THAT LETTER BECAUSE THE CIRCUMSTANCES UNDER EVERY AROUND HOW SHE
RECEIVED WERE MORE THAN SUFFICIENT HERE TOSHACH. AS JUSTICE WE KNOW HYPOTHESIS
HAD EARLIER IF SHE HAD RECEIVED A LETTER THAT HAD NOTHING IN THE BODY OF IT
BUT JUST ENOUGH ON THE ADDRESS LINE TO MAKE IT CLEAR WHO IT WAS FROM THAT'S
ENOUGH RIGHT THERE TO SATISFY THE STATUTE. CHIEF JUSTICE RABNER: IN YOUR
EXPERIENCE WOULD YOU AGREE THAT TEN OUT OF TEN PROSECUTORS WOULD LIKELY INTRODUCE
THAT LETTER. PATRICK R. McAVADDY: YOUR HONOR, I SUPPOSE IT'S POSSIBLE.
I POSSESSION EVEN LIKELY BUT AGAIN FOR THE PURPOSE OF THE WITNESS TAMPERING
STATUTE THEY DON'T NECESSARILY HAVE TO. JUSTICE NORIEGA: UNDER YOUR THEORY
OF PROSECUTION THERE IS IT FAIR TO SAY THAT A DEFENDANT IS UNIFORMLY BARRED
FROM EVER CONTACTING A VICTIM OUTSIDE THE CONTEXT OF A NO CONTACT ORDER.
PATRICK R. McAVADDY: NO, YOUR HONOR I DON'T THINK AND TO THAT POINT IT'S SURPRISING
TO HEAR FROM THE DEFENSE CLAIMING THAT THE STATUTE IS OVER BROAD INTO SPEECH
BUT SOMEHOW THE SOLUTION IS TO HAVE MORE NO CONTACT ORDERS ACROSS THE BOARD
IS A STRAINING SOLUTION WHEN NO CONTACT ORDERS ARE MORE RESTRICTIVE ON SPEECH
THAN WHAT THIS STATUTE DOES. BECAUSE I THINK THERE ARE CIRCUMSTANCES OR THERE ARE
EVERY THERE AT LEAST COULD BE CIRCUMSTANCES WHERE MAYBE NOT ADVISABLE BUT AND
I'M SURE ANY DEFENSE ATTORNEY WOULD VISION AGAINST IT BUT THERE WERE MIGHT BE
SITUATIONS WHERE A DEFENDANT COULD ENGAGE IN SOME FORM OF CONTACT WITH A VICTIM
OR A WITNESS OR ANYONE WITHOUT NECESSARILY RUNNING AFOUL OF THE STATUTE AGAIN
WHETHER OR NOT IT'S ADVISABLE IS WOULD BE THING. JUSTICE NORIEGA: BUT YOUR
EXAMPLE A FEW MINUTES AGO IF THIS DEFENDANT HAD JUST SENT THE ENVELOPE WITH
NOTHING INSIDE OF IT. THAT WOULD HAVE BEEN ENOUGH TO SATISFY THE THIRD DEGREE UNDER
THE STATUTE. PATRICK R. McAVADDY: CORRECT. JUSTICE NORIEGA: WHERE'S
THE THREAT OR IMPLICATION OTHER THAN SIMPLY ACKNOWLEDGING HE KNOWS HER ADDRESS
AND IS IN RECOVERY AND IS POSSIBLY PUBLICLY AVAILABLE. WHERE IS THE INTENT
TO DO ANYTHING WRONG THERE. PATRICK R. McAVADDY: YOUR HONOR THE STATUTE
DOESN'T NECESSARILY LOOK TO WHETHER OR NOT THERE WAS A THREAT ESPECIALLY WHEN IT
INVOLVES THIRD DEGREE WITNESS TAMPERING WHICH SPECIFICALLY DOES NOT OR SAYS
IT'S SOMETHING WHERE THERE'S NOT A THREAT OR A THREAT OF VIOLENCE OR ANYTHING
LIKE THAT. SO IT'S NOT NECESSARILY DISPOSITIVE WHETHER OR NOT THERE'S A
THREAT THERE SO MUCH AS IT'S JUST HOW A REASONABLE PERSON WOULD REACT TO GETTING THAT
LETTER SENT TO HER PRIVATE ADDRESS. JUSTICE NORIEGA: BUT UNDER THOSE
CIRCUMSTANCES THEN I THINK THE SUGGESTION IS THAT IN ANY VIOLENT CASE ANY COMMUNICATION
BY THE DEFENDANT TO THE VICTIM THAT SUGGESTS THAT THEY'RE AWARE OF WHERE THEY
LIVE WOULD BE ENOUGH TO TRIGGER A REASONABLE PERSON TO BELIEVE THAT THEY'RE
BEING COMPELLED NOT TO GO TO COURT NOT TO TESTIFY NOT TO TESTIFY ANYTHING
EVERYTHING A THIRD DEGREE WITNESS TAMPERING CHARGE. PATRICK R. McAVADDY:
I THINK MORE LIKELY THAN NOT ANY SITUATION IN THIS REGARD SOMEONE GETS SENT
TO A PRIVATE RESIDENCE IS MORE LIKELY TO LEAD TO IMPLICATING THE STATUTE BECAUSE
THAT IS CONDUCT THAT DOES PUT A VICTIM IN A PLACE OR REASONABLY COULD PUT A VICTIM
IN A PLACE WHERE THEY WOULD ENGAGE IN ONE OF THESE. THE FACT THAT THIS WAS
SENT TO A PRIVATE RESIDENCE RATHER THAN SOME THIRD LOCATION OR WHETHER IT WAS
BROADCAST ON LINE WOULD HAVE BEEN ENTIRELY DIFFERENT HERE T FACT THAT IT WAS A PRIVATE
RESIDENCE IS VERY CRUCIAL TO WHY THIS WAS ULTIMATELY DID RUN AFOUL OF THE WITNESS
TAMPERING STATUTE. JUSTICE WAINER APTER: YOUR ADVERSARY SAYS THAT THE
NEW JERSEY STATUTE IS THE BOMB ONE IN THE COUNTRY THAT HAS A NEGLIGENCE STANDARD.
DO YOU AGREE. PATRICK R. McAVADDY: YOUR HONOR I WAS NOT ABLE TO
FIND ANOTHER WITNESS TAMPERING STATUTE IS THAT HAD A SIMILAR STRUCTURE TO THIS ONE.
I WOULD NOTE JUST BECAUSE IT'S UNIQUE DOES NOT MAKE IT UNCONSTITUTIONAL. WHILE
I DIDN'T FIND ONE THYMIER ORDER OUR STATUTE I DIDN'T FIND THAT 49 OTHER STATES
HAD STATUTES THAT WERE TACTUALLY THE SAME AND THIS WAS THE ONE OUTLIER COMPLETELY.
LOOKING THROUGH OTHER STATES I FOUND A WIDE ARRAY OF DIFFERENTLY STRUCTURED WITNESS
NECESSARY TAMPERING STATUTES. JUSTICE PATTERSON: THIS IS A MENS REA AN OF
KNOWING THIS IS NOT NEGLIGENCE. PATRICK R. McAVADDY: THIS IS A KNOWING ELEMENT
TO THIS CORRECT YOUR HONOR. THE KNOWING ENGAGING IN THE CONDUCT. THERE IS ONE
ASPECT OF THIS THAT HAS A KNOWING. JUSTICE FABIANA PIERRE-LOUIS: ANOTHER
ASPECT THAT IS WITH REGARD TO WHETHER THE REASONABLE PERSON WOULD BELIEF THAT THE
CONDUCT WOULD CAUSE THE WITNESS TO DO THE RELYING CONDUCT. PATRICK R.
McAVADDY: CORRECT YOUR HONOR I WOULD NOTE IN OUR CRIMINAL CODE THERE ARE MANY
STATUTES THAT INVOLVE CONDUCT BASED CRIMES THAT DO USE A REASONABLE PERSON STANDARD
TO MEASURE CRIMINAL CULPABILITY. AND AGAIN IT IS THE STATE'S POSITION THIS
IS A CONDUCT BASED STATUTE THAT MAY INCIDENTALLY TOUCH ON SPEECH WHICH OUR
CASE LAW SAYS IS FOR CONDUCT BASED STATUTES THAT'S NOT NECESSARILY A PROBLEM.
JUSTICE FABIANA PIERRE-LOUIS: IS THAT SIMILAR TO THE STATUTE IN COUNTER MAN.
PATRICK R. McAVADDY: I WOULD SAY THE STALKING STATUTE IS REMARKABLY STAR IN GRAM
MAT CAL STRUCTURE AND LEGISLATURE HISTORY TO THE WITNESS TAMPERING HEAR IN GUIDING
THIS COURT FOUND THAT THIS STRUCTURE OF THAT STATUTE WAS PERMISSIBLE AND ALSO
THE KNOWING ELEMENT ONLY APPLIED TO THE FIRST PART NOT TO BOTH PARTS. AND
I WOULD SAY THAT ALSO WOULD BE TRUE HERE THEY ARE VERY REMARKABLY SIMILAR IN STRUCTURE.
THE APPELLATE COURT IN B A THEN RATED TO THE CONSTITUTIONALITY OF THE STALKING
STATUTE AS STRUCTURED BY THIS COURT AND FOUND THAT THIS IT WASN'T OVER BROAD
AND WASN'T VAGUE. AND WHILE THAT CASE DIDN'T -- THE SET WAS DINED FOR THIS
CASE. AS IT STANDS NOW THE STALKING STATUTE AS IT CURRENTLY EXISTS AND IT IS SIMILARLY
STRUCTURED TO THIS ONE WAS DETERMINED TO BE NEITHER UNCONSTITUTIONAL OVER BROAD
OR VAGUE. JUSTICE FABIANA PIERRE-LOUIS: I MEANT THE TALKING STATUTE IN
COUNTER MAN. PATRICK R. McAVADDY: JUST TO BE CLEAR WHEN I ANSWERED I WAS
REFERRING TO THE NEW JERSEY STALKING STATUTE. BUT TO ADDRESS COUNTER MAN.
COUNTER MAN DEALT WITH A FACT PATTERN THAT DID DEAL IN SPEECH SPECIFICALLY AND
THE QUESTION THERE WAS IS IT PROTECTED SPEECH OR IS IT UNPROTECTED SPEECH EXAMINING
THE TRUE THREAT DOCTRINE SPECIFICALLY AND ULTIMATELY THE COURT DID DETERMINE IN THAT
SPEECH CONTEXT WHEN THE CONTENT AND WORDING OF THAT POSSIBLE THREAT MAKES ALL THE
DIFFERENCE IN THAT CASE WE NEED A RECKLESS STANDARD IS WHAT THE COURT THERE
SIDED. HERE AGAIN WE'RE DEALING WITH A CONDUCT BASED STATUTE WHERE THAT SAME
CONSIDERATION DOES NOT EXIST CERTAINLY FOR THE VAST MAJORITY OF CASES THAT TOUCH
ON WITNESS TAMPERING FOR THE SMALL SUBJECT SECRETARY OF CASES HERE THAT MIGHT
ONE COULD IMAGINE A WITNESS TAMPERING CASE THAT MIGHT TOUCH ON PEACH INCIDENTALLY
WHETHER OR NOT YOU MIGHT NEED A SIMILAR RECKLESS STANDARD SPECIFICALLY AND
ONLY CONCLUSIVELY FOR THOSE KINDS OF CASES POSSIBLY BUT AGAIN THAT COULD BE
REMEDIED ON AN AS APPLIED BASIS CERTAINLY DOES NOT REQUIRE OR AND SHOULD NOT LEAD
TO A FACIAL INVALIDATION HERE. JUSTICE FABIANA PIERRE-LOUIS: SO IN
COUNTER MAN JUSTICE CON CURED THAT THE STALKING PROSECUTION, THAT WAS NOT A TRUE
THREAT TO PROSECUTION AND THAT WAS A PROSECUTION FOR AN OFFENSE THAT JUST
INVOLVED THREATENING STATEMENTS SO IN THAT REGARD SHE AGREED WITH THE MAJORITY THAT
FOR THAT PARTICULAR PROSECUTION THAT THE RECKLESSNESS STANDARD SHOULD BE APPLIED
BUT DIDN'T AGREE THAT FOR TRUE THREATS PROSECUTIONS GENERALLY THE COURT SHOULD
HAVE GONE FURTHER AND DETERMINED WHAT THE MENS REA A SHOULD BE FOR TRUE THREATS
PROSECUTION GENERALLY. SO UNDER HER LOGIC WOULDN'T THIS STATUTE, THIS WITNESS TAMPERING
STATUTE BE SIMILAR TO THAT STALKING STATUTE IN THAT IT IS A CRIMINAL OFFENSE
THAT MAY INVOLVE THREATENING STATEMENT BUT DOESN'T HAVE TO INVOLVE THREATENING
STATEMENTS SO IT'S NOT NECESSARILY A TRUE THREATS PROSECUTION AND IN THAT REGARD
WE SHOULD FIND THAT THERE SHOULD BE AT LEAST A MENS REA AN OF RECKLESSNESS WITH
REGARD TO THE SECOND ELEMENT OF THE WITNESS TAMPERING STATUTE. PATRICK R.
McAVADDY: YOUR HONOR, I DON'T BELIEVE THAT THAT NECESSARILY NEEDS TO BE THE RESULT
HERE. SORT OF FOR THAT EXPRESS I HAVE CONDUCT AGAIN A SMALLER SUBJECT SECRETARY
OF WHAT IS GENERALLY PICTURE CONDUCT AS WITNESS TAMPERING IN NEW JERSEY IS
APPLIED FOR THAT EXPRESS I HAVE CONDUCT TO QUOTE FROM WHAT JUSTICE FASCIALE
SAID EARLIER WHEN YOU HAVE THE NON-SPEECH AND SPEECH ELEMENTS THERE IS SOME JUSTIFIED
LIMITATIONS ON THE FIRST AMENDMENT SO I WOULD SAY HERE AGAIN ON AN AS APPLIED BASIS
THAT THERE IS A CASE THAT THERE'S EXPRESS I HAVE CONDUCT IF THERE MIGHT BE
SOME LIMB STATION ON THE FIRST AMENDMENT IT'S NOT NECESSARILY AN
UN\CONSTITUTION\SUBSTITUTION ALLEY OVERGRADE ENCOURAGING INTO THE FIRST AMENDMENT.
THE COURT: OTHER QUESTIONS,. THE COURT: ANYTHING YOU WOULD LIKE TO
ADD. THE COURT: MR. SHEEHAN SHOOE. �� MAY IT PLEASE THE COURT,
WHEN THE STATE BRINGS A PROSECUTION FOR A WITNESS TAMPERING,, THE FENDING BEHAVIOR CAN
COME IN SEVERAL DIFFERENT FORMS. THAT TAMPERING TAKES THE FORM OF PURE NONEXPRESS SIF
CONDUCT, LIKE ASSAULTING A WITNESS OR CONSPICUOUSLY LURKING OUTSIDE A WITNESS OR
VICTIM'S HOME IN WHICH THE FIRST AMENDMENT ISN'T IMPLICATED AT ALLMENT EVEN WHEN THE TAMPERING
INVOLVES SPEECH, THERE ARE MULTIPLE TYPES OF APPLICATION THAT. AS IN CASE IS OF BRIBING
A WITNESS OR ENCOURAGING 1'S CO-CONSPIRATOR TO COMMIT FURTHER OR THE PROSECUTION MIGHT
BE NEUTRAL AS TO THE CONTENT OF THE SPEECH AND INSTEAD HINGE ON CONCERNS WITH ITS TIME,
PLACE OR MANNER AS WHEN THE SPEECH OCCURS AT THE VICTIM'S HOME OR MINUTES BEFORE SHE'S
ABOUT TO TAKE THE WITNESS STAND. IT'S ONLY WHERE SPEECH IS AT ISSUE AND NONE OF THOSE
JUSTIFICATIONS APPLIES THAT THE STATE NEEDS TO RELY ON THE TRUTH RERM EXCEPTION AND THUS
HAS TO PROVE A RECKLESS STIEND KINTD WITH COUNTERMAN VERSUS COLORADO BUT BECAUSE MR.
HILL CHALLENGES ONLY THAT NARROW SLICE OF APPLICATIONS, HE HASN'T MET HIS BURDEN TO
DEMONSTRATE A LOP SIDED ASH I DON'T OF UNCONSTITUTIONAL TO CONSTITUTIONAL
APPLICATIONS. JUSTICE WAINER-APTER: I'M SORE ARE YOU, I WASN'T SURE I UNDERSTOOD
WERE YOU CONCEDE THAT GO IN THAT NARROW SPACE THEN UNDER COUNTERMAN, RECKLESSNESS WOULD
HAVE TO BE CHARGED. �� WE, IN CASES WE OF COURSE AGREE THAT UNDER COUNTERMAN
THE FIRST AMENDMENT REQUIRES THE STATE TO PROVE RECKLESSNESS. JUSTICE
WAINER-APTER: SO UNDER THIS STATUTE THAT WOULD ONLY BE FIRST AND SECOND DEGREE WITNESS
TAMPERING. �� YES, I THINK THAT'S -- IF THE STATE IS PROVING A THREAT, THEN
IT MIGHT IMPLICATE THAT UPGRADE TO THE SECOND DEGREE OFFENSE. I THINK THAT WILL
DISTINCTION IN THE GRADES UNDERSCORESITY ONLY KIND OF A NARROW CATEGORY OF THESE APPLICATIONS
THAT ARE GOING TO HINGE ON A THREAT, BUT BECAUSE HE'S ONLY CHALLENGING THAT CATEGORY OF
APPLICATIONS, WE DON'T THINK MR. HILL HAS DEMONSTRATED SUBSTANTIAL OVERBREADTH BECAUSE
THERE IS NO FACIAL OVERBREADTH PROBLEM THERE'S NO BASIS TO GRANT FACIAL RELIEF STRIKING
DOWN THE STATUTE AND BECAUSE THERE'S NO FACIAL PROBLEM THERE'S NO BASIS TO ADOPT STATUTORY
LIMITS AS A FACIAL MATTER UNDER THE GUISE OF -- JUSTICE PATTERSON: LET ME
ASK YOU ABOUT WHAT SLICE OF OR CATEGORY OF CASES DEFENDANT IS CHALLENGING BECAUSE HE WAS
ONLY PROSECUTED FOR THE THIRD DEGREE. THIS WAS NOT A LESSER INCLUDED OFFENSE. THERE WAS
NEVER ANY QUESTION THAT THE STATE WAS GOING TO TRY TO PROVE THE MORE IMMEDIATE THREATS
THAT WOULD BE REQUIRED FOR A HIGHER DEGREE SO THE CHALLENGE HERE IS, AS I UNDERSTAND IT,
THOSE CASES THAT ARE WITHIN THE THIRD DEGREE WHICH WOULD IMPLICATE SPEECH AND UNLIKELY
THAT VIRTUALLY ANY TRUE THREAT CASE WOULD FIT INTO THAT CATEGORY. AM I CORRECT ABOUT THAT.
�� I THINK YOU'RE RIGHT. IT WOULD BE A NARROW BAND OF CASES. YOU CAN IMAGINE
A HYPOTHETICAL CASE BUT I THINK THE MORE IMPORTANT POINT IS THAT THERE'S A LARGE SWATH
OF PURE CONDUCT CASES THAT DON'T IMPLICATE THREATS, THAT DON'T IMPLICATE --
JUSTICE WAINER-APTER: WHAT ABOUT CASES THAT ARE SPEECH BUT AREN'T TRUE THREATS. I THINK
THE REASON I'M CONFUSED IS IT SEEMS LIKE YOU'RE ASKING FOR MORE AMENDMENT PROTECTION FOR
SOMETHING THAT IS A THREAT OF VIOLENCE AND USUALLY THE FIRST AMENDMENT IS THE OPPOSITE
IN THAT THREATS OF VIOLENCE ARE PROTECTED LESS THAN WORDS THAT ARE NOT DIRECT THREATS
OF VIOLENCE. �� I DON'T THINK WE'RE DISAGREEING. I THINK IT'S THERE'S ONLY
GOING TO BE A SMALL SHARE OF PROSECUTIONS THAT NEED TO RELY ON THE TRUE THREATS EXCEPTION
BECAUSE THE STATEMENT IS 1 THREATENING VIOLENCE AND IT DOESN'T SATISFY THE FIRST AMENDMENT
IN ANY OTHER WAY. JUSTICE WAINER-APTER: SO LET'S SAY THIS PROSECUTION,
HOW DO YOU THINK IT SATISFIED, IT'S NOT A TRUE THREAT. SO WHAT FIRST AMENDMENT EXCEPTION
IS IT SATISFYING? VOISZ SO I THINK WHETHER YOU THINK OF IT UNDER THE O'BRIEN PARADIGM
OR CONTENT NEUTRALITY OR WE THINK THIS IS A CONTENT NEUTRALITY ON SPEECH. THE PROBLEM
HERE IS WALLY THE MANNER IN WHICH MR. HILL APPROACHED THE VICTIM, CONTACTING HER
DIRECTLY AT HER HOUSE WHICH SHOWS THAT HE KNOWS WHERE SHE LIVES, KNOWS HER NAME AND IS
WILLING TO CONTACT HER OUTSIDE OF PROPER CHANCE AND THAT'S REALLY WHAT DROVE LIABILITY,
NOT THE WORDS OF THE LETTER. IF YOU HOLD THE CONTENT EVERY TIME LETTER AND CONSTANT AND
JUST VARY THE PLACE AND MANNER, IF HE HAD SENT THE SAME LETTER TO HIS BROTHER, IF HE HAD
PUBLISHED THE SAME OPEN LETTER ON INTERNET BLOG, THAT WOULDN'T BE WITNESS TAMPERING WHICH
I THINK UNDER SCORES THIS APPLICATION IS NEUTRAL AS TO THE CONTENT. JUSTICE
PATTERSON: SO ARE YOU SAYING THAT THIS IS, THAT IN ESSENCE THAT ASPECT OF THE THIRD DEGREE
TAMPERING STATUTE IS A VALID TIME PLACE AND MANNER, EXPRESS MANNER RESTRICTION ON SPEECH.
�� YES AND I THINK THAT UNDER SCORES THE CASES THAT COME UP TO THE SECOND DEGREE
BECAUSE THEY ARE RELYING ON A TRUE THREAT OF VIOLENCE, REALLY ARE A SHAWL SHARE OF WHAT
THE STATUTE IS DOING AND I THINK, JUST GOING TO TURN TO JUSTICE PIERRE LUIS QUESTION
ABOUT THERE ARE MANY WAYS TO VIOLATE THE STATUTE THROUGH CONDUCT ALONE AND I THINK THAT
HIGHLIGHTS THE ON CHALLENGING THIS ON OVERBREADTH GROUNDS. MR. HILL ARGUES THAT EVEN THE
CONDUCT APPLICATIONS COMMUNICATE A MESSAGE TO THE WITNESS OF THE VICTIM POTENTIALLY BUT
THAT DOESN'T BRING IT WITHIN THE FIRST AMENDMENT'S AM BIT BECAUSE, YOU KNOW, YOU CAN
IMAGINE A DEFENDANT WHO KILLS 3 WITNESSES IN ORDER TO THREATEN -- THAT OBVIOUSLY BUT THAT
DOESN'T MAKE IT PROTECTIVE BY THE FIRST AMENDMENT. WHAT THE STATE IS BURNING THERE IS
MURDERING SOMEONE NOT THE MESSAGE THAT'S BEING CONVEYED AND SO I THINK THAT'S O'BRIEN
EXPLAINS WHY A CASE LIKE THAT IS STILL COMPLETELY PRESCRIBABLE UNDER THE FIRST AMENDMENT.
JUSTICE PATTERSON: LET ME JUST FOLLOW UP ON THAT IF I MAY. SO THE
OVERBREADTH TEST WOULD ERR INVOLVE THE QUESTION WHETHER RT PROHIBITION REACHES A SUBSTANTIAL
AMOUNT OF CONSTITUTIONAL AND PROTECTED CONDUCT BEYOND WHAT MAY BE LEGITIMATELY OUTLAWED
AND I THINK WHAT I'M HEARING FROM YOU IS THAT THE IN THIRD DEGREE SETTING, YOU KNOW, THE
THE HIGHER DEGREE TIMES MAY IMPLICATE TRUE THREATS BUT IN THE THIRD DEGREE SETTING THERE
IS A VERY SMALL AMOUNT OF CONSTITUTIONALLY PROTECTED CONDUCT THAT WOULD BE IMPLICATED IN
REAL LIFE BECAUSE OF THE NATURE OF THAT OFFENSE RECHLT. �� THAT'S XAKTSLY RIGHT.
IF THE STATE IS NOT EVEN CHARGING ON THE UPGRADED OFFENSE AND CHARGING THAT THERE IS A
THREAT OF FORCE BY DEFINITION YOU'RE NOT AND EITHER THAT'S SOMETHING THAGS PURE CONDUCT.
I MEAN YOU CAN HAVE A THREAT OF FORCE THROUGH NOT EXPRESSIVE CONDUCT OR ITS AN APPLICATION
THAT INVOLVES SPEECH THAT SATISFIES THE FIRST AMENDMENT IN SOME OTHER WAY.
JUSTICE PATTERSON: AND AM I RIGHT THAT THE CATEGORY OF SPEECH THAT THE NARROW CATEGORY
WHICH YOU ARE SAYING DOESN'T OVER, IS NOT EXCESS SIF IN TERMS OF WHAT IS BEING POTENTIALLY
IMPLICATED IS IS REALLY THE WINDOW OR THE THE DAYLIGHT AS IT WERE BETWEEN DEFENDANT DOING
AN OP ED OR A BLOG POST OR WHATEVER, MAKING THIS POINT AND HIS ACTUAL CONDUCT THAT'S ALLEGED
HERE WHICH IS SENDING THE LETTER TO THE VICTIM. �� YES. I THINK A CASE LIKE
THIS IS A GOOD EXAMPLE OF 1 THAT IS NOT GOING TO RELY ON THE TRUE THREATS EXCEPTION BECAUSE
IT'S REALLY THE PLACE AND MANNER OF SPEECH THAT WAS DRIVING LIABILITY AND NOT THE EXACT
WORDS AND THE COMPARE SONS TO THE FACEBOOK POST OR THE THE OP ED I THINK JUST DRIVE THE
POINT HOME. JUSTICE WAINER-APTER: BUT HOW YOU IT WAS NOT A CASE WHERE THE
PROSECUTOR JUST SAID THE ONLY THING THAT MATTERS HERE IS THE DEFENDANT SENT A LETTER
TO THE VICTIM AT HER HOME. HERE IS THE ENVELOPE. �� I THINK WE WOULD MAKE A
DISTINCTION BETWEEN THE KINDS OF EVIDENCE THE STATE ITS RELYING ON AND WHAT FACTS ARE
REALLY DRIVING LIABILITY AND HERE I THINK THE ONLY WAY THAT ECHL -- THE ONLY FACTS THAT
GET YOU ACROSS THE LINE AND ESTABLISH A VIOLATION HERE ARE -- IS THE PLACE AND MANNER,
THE MANNER IN WHICH HE SENT THIS LETTER TO THE THE VICTIM SO IF YOU JUST, IF THAT HAD
CHANGED AND IT WAS IN A MANNER THAT WAS NOT INHERENTLY THREATENING, THE PUBLIC INTERNET
POST OR, YOU KNOW, SENDING IT TRUE TO DEFENSE COUNSEL IS NOT SOMETHING THAT IS NOT
SOMETHING THAT IS INHERENTLY THREATENING, THAT SHOWS WHY THE CONTENT IS WHAT WAS DRIVING
LIABILITY HERE. AND I THINK ULTIMATELY MR. HILL'S STRONGEST AND MAYBE ONLY
EXAMPLE OF A POTENTIALLY UNSCONCE TUGSAL APPLICATION IS THIS APPLICATION TO HIS OWN
CASE. HE HASN'T POINTED OTHER PROSECUTOR PROSECUTION ORZ APPLICATIONS THAT ARE
ACTUALLY CONSTITUTIONAL. HE NOTES THAT THERE ARE A LOT OF SPEECH APPLICATIONS IN THE CASES
BUT I THINK THAT JUST BEGS THE QUESTION WHICH OF THESE FIRST AMENDMENT EXCEPTIONS ARE
APPLIES. HE DOES AGREE EVEN WITH THE THE SPEECH INTEGRAL TO EXCEPTION AND, YOU KNOW, CONTENT
KNEW TRALTD ARE EXCEPTIONS THAT ARE ALWAYS IN PLAY HERE. JUSTICE PATTERSON:
SPEECH INTEGRAL TO THE OFFENSE. �� YEAH, SPEECH INTEGRAL TO THE OFFENSE. THE
SO I THINK A GREAT XAFRL IS SPEECH INTEGRAL AS BRIBERY. DEFENDANT IS BRIBING WITNESSES
SOMETHING YOU SEE A LOT IN THE CASES SO JUST TO IDENTIFY THAT THIS HAS BEEN APPLIED TO
SPEECH IN SOME CASES REALLY IS NOT COMPLETE ANALYSIS. IT JUST KIND OF BEGS THE QUESTION
WHICH FIRST AMENDMENT DOCTRINE ARE WE IN. AND SO I THINK IT ULTIMATELY THERE'S
JUST 1 EXAMPLE OF A POTENTIALLY PROBLEMATIC APPLICATION TO THE STATUTE. THAT'S REALLY
NO WHERE NEAR WHATSDZ NEEDED TO SHOW OVER BREADTH. I THINK, YOU KNOW FROESHGS EXPLAINS
WELL THAT SPECIALLY WHEN YOU'RE DEALING WITH A STATUTE LIKE THIS WHICH IS TRAINED ON CONDUCT
SG AND NOT SPEECH, IT'S PRETTY RARE THAT YOU WILL BE ABLE TO ESTABLISH OVERBREADTH. YOU HAVE
TO PROVE OVERBREADTH FROM THE TEXT OF THE LAW AND ACTUAL FACT AND SO WITH JUST 1 APPLICATION
THAT IS REALLY THE FOCUS OF CONCERN THAT'S NOT ENOUGH TO PROVE OVERBREADTH.
I'DJUST LIKE TO BRIEFLY ADDRESS THE AVOIDANCE AURMENTSD AND THAT UNDER THE DOCTRINE OF
AVOIDANCE YOU SHOULD RAISE THE STANDARD TO KNOWLEDGE. I THINK THERE'S 2 PROBLEMS WITH
THAT. FIRST IS THAT THIS JUST ISN'T AN AVOIDANCE CASE. AVOIDANCE APPLIES WHERE THERE'S
A REASONABLE CONSTITUTIONAL APPLICATION WITH LAW AND YOU ANOTHER REASONABLE INTERPRETATION
THAT WOULD LEAVE THE THE STATUTE INVALID. WE DO THAT BECAUSE WE PRESUME THE LEGISLATURE
MEANS TO ACT CONSTITUTIONALLY AND ALSO DOES NOT WANT ENACTMENTS TO BE INVALIDATED WHOLESALE.
BUT WHEN YOU'RE CHOOSING BETWEEN 2 INTEFRPTD TAGSS, THAT ARE BOTH LEAVING THE STATUTE
VALID, YOU'RE NOT AVOIDING A CONSTITUTIONAL PROBLEM. THAT'S JUST DISREGARDING THE
LEGISLATURE'S INTENT. I THINK THE AVOIDANCE ARGUMENTS ALSO FAULT TER ON THEIR OWN TERMS
HERE BECAUSE THIS IS NOT A GAP FILLER STATUTE OF THE THERE'S TO GAPS TO FILL IN THE TEXT
OF THIS LAW. THIS IS MUCH LIKE THE STALKING LAW IN THAT THIS COURT CONSTRUED IN GANDHI
WHERE THE LEGISLATURE SPOKE CLEARLY THAT THE CONDUCT ELEMENT HAD 1 MENS REA WHICH WAS
PURPOSE OR KNOWING AND THEN AND THEN CLEARLY CHOSE A DIFFERENT MENTAL STATE ELEMENT FOR
THE RESULTS OR THE REACTION OF THE VICTIM AND JUST AS THIS COURT IN GHANDI EXPLAINED,
THAT'S NOT A GAP FILLER STATUTE. WE'RE JUST GIVING EFFECT THAT THE LEGISLATURE'S CLEAR
CHOICE. THIS IS, TOO. SO WE DON'T THINK AVOIDANCE CAN BE INVOKED TO EXCUSE A DEFENDANT
OR CHALLENGE OR MEETING HIS BURDEN TO ESTABLISH OVERBREADTH. WE THINK JUST ULTIMATELY
THE EXISTENCE OF SOME CASE THAT WOULD RELY ON THE TRUE THREATS EXCEPTION THAT WOULD HAVE
TO BE RECKLESSNESS ON COUNTERMAN THAT'S A SMALL ENOUGH SLIVER THAT THERE ISN'T AN OVERBREADTH
PROBLEM WITH THE STATUTE. THE COURT: THANK YOU, COUNSEL. �� THANK
YOU. THE COURT: MR. FLYNN, BRING US HOME FOR THE DAY. MR. FLYNN:
FIRST I'D LIKE TO KIND OF ADDRESS JUSTICE FASH YA'LL'S CONSTRUCTION OF THE STATUTE BECAUSE
WE WHAT WE JUST HEARD THE ATTORNEY GENERAL SAY IS THAT KNOWLEDGE ELEMENT DOES NOT MODIFY
THE REASONABLE PERSON STATUTE IN THE STATUTE THAT'S HOW THE APPELLATE DIVISION INTERPRETED
IT. THAT'S HOW THE JURY WAS CHARGED IN THIS CASE. SO WE'RE OPERATING WITH RESPECT TO
DEFENDANT'S AWARENESS OF HIS SPEECH ON A PURELY OBJECTIVE STANDARD NOT A SIBTDTIVE 1 SO
THAT'S A PROBLEM FOR THREATS CASE DZ UNDER COUNTERMAN AND AS JUSTICE WEINER APARTMENT
TER POINTED OUT IT'S ACTUALLY A PROBLEM FOR THE THIRD DEGREE CHARGES AS WELL BECAUSE WHY
WOULD THREATENING SPEECH HAVE A HIGHER LEVEL OF PROTECTION, A GREATER MENS RAY THAN
NONTHREATENING SPEECH THAT IS BEING CHARGED IN A THIRD DEGREE CASE. THIS THIRD DEGREE CASE,
LIKE THIS 1, WHEN THERE'S KAUKTD THAT IMPLIES A THREAT A SECOND DEGREE. A SIGNIFICANT
LIKE -- LIKE I SAID 20 CASES ON PAGE AND 11 TO MY RESPONSE TO THE ATTORNEY GENERAL WHERE
IT WAS BASE ON TEXT MESSAGES, LETTERS, IN PERSON CONVERSATIONS, TELEPHONE CALLS AND TO THE
EXTENT THAT THOSE CASES DEAL WITH NONTHREATENING SPEECH THAT IS DIRECTED AT GETTING A
WITNESS TOTIVE FALSELY WITH WHOLE TESTIMONY, I THINK THE APPROPRIATE EXCEPTION WOULD BE
THE SPEECH INTEGRAL THE CRIMINAL CONDUCT EXCEPTION AND AS I ARGUE OUT BEFORE, THAT
REQUIRES A MENS REA OF OF AT LEAST KNOWLEDGE. SO I WOULD SUGGEST THAT THE BEST SOLUTION
TO THAT IS TO READ THE STATUTE AS JUSTICE F SUGGESTED SO THAT KNOWLEDGE MODIFIES. IN
OTHER WORDS THE JURY COULD BE EXPLICITLY CHARGED THAT IN ORDER TO CONVICT DEFENDANT YOU
FUFT MIND BEYOND A REASONABLE DOUBT THAT HE WAS AWARE THAT THE NATURE OF HIS SPEECH WAS
OF A NATURE THAT WOULD CAUSE A REASONABLE PERSON TO BELIEVE THAT A WITNESS WOULD, YOU
KNOW, WITHHOLD TESTIMONY SO IN OTHER WORDS THERE WOULD BE A SUBJECTIVE ASPECT. NOW IT
PUTS THE STATUTE CLEARLY WITHIN A CONSTITUTIONAL APPLICATION. OTHERWISE IF YOU'RE DOING
WHAT THE STATE ASKS AND YOU'RE ONLY APPLYING A HIGHER STANDARDS AND THE SECOND DEGREE
CASE WHEN TLETSDZ ARE INVOLVED, YOU'RE LEAVING A LARGE SWAD OF AT LEAST AS APPLIED CHALLENGES
WHEN THE THIRD DEGREE CHARGE IS BEING BASED ACCIDENT CLUSZIVELY ON SPEECH.
JUSTICE FASCIALE: AND AS TO THAT KNOWING POINT THAT JUST MADE, COUNSEL, A DEFINITION OF
KNOWING TALKS ABOUT AWARENESS IN TERMS OF HIGH PROBABILITY AND PRACTICALLY CERTAIN. THOSE
ARE PARTS OF THE DEFINITION OF WHAT KNOWING MEANS SO THAT IS ALREADY PART OF THE CHARGE
THAT THE JUDGE GIVES E. MR. FLYNN: RIGHT RIGHT BUT THE WAY THE APPELLATE
DIVISION CONSTRUED THE CHARGE, I BELIEVE THAT KNOWING ELEMENT IS ONLY THAT HE ENGAGED IN
CONDUCT MANY HERE MR. HILL KNOWS HE SENT THE LETTER. NOT THAT HE KNOWS THE NATURE OF THE
LETTER AND REGARDING THE HIGH PROBABILITY LANGUAGE. JUSTICE PATTERSON:
SORRY, WHAT DID YOU JUST SAY. YOU KNOW HE SENT THE LETTER BUT NOT THAT HE UNDERSTOOD THE
NATURE OF THE LETTER. MR. FLYNN: RIGHT, THAT HE DIDN'T UNDERSTAND THAT THE
CONTENTS OF THE LETTER. JUSTICE SOLOMON: OF COURSE IF WE ACCEPT THE THE AG'S
ARGUMENT, HS NOT SPEECH AT ALL. IT'S SIMPLY CONDUCT AND IT DOESN'T IMPLICATE THE FIRST
AMENDMENT. MR. FLYNN: I MEAN FOR THE REASONS DISCUSSED I THINK. JUSTICE
SOLOMON: I KNOW A BUT THAT SEEMS TO BE 1 OF THE AURNLTSDZ. MR. FLYNN: BUT IF
YOU BELIEVE THAT IN ALL APPLICATIONS IT IS CONDUCT BASED, I THINK THE RECORD IN THIS
CASE AND OTHER CASES BE LIES THAT POSITION. JUSTICE FASCIALE: WHAT WERE YOU
ABOUT TO SAY ABOUT HIGH PROBABILITY. MR. FLYNN: SO I ADVOCATEDED FOR THAT IN
MY BRIEF SO THEITY YOTS IT'S NECESSARY TO CHARGE IN IT. THERE'S 2 SENTENCES THAT. THE FIRST
DEFINES A PERSON ACTS KNOWINGLY WITH RESPECT TO THE NATURE OF HIS CONDUCT IF HE IS AWARE
OF THE CONDUCT IS OF THAT NATURE AND THEN THE HIGH PROBABILITY HAS TO DO WITH RESULTS.
SO THE WITNESS TAMPERING STATUTE ACTUALLY DOESN'T OBVIOUSLY REQUIRE THE WITNESS KNOTS
TO TESTIFY. JUSTICE PATTERSON: NO, ISN'T IT A MORE STRINGENT STANDARD THAN
COUNTERMAN. MR. FLYNN: IT WOULD BE A MORE STRINGENT STANDARD THAN COUNTERMAN,
THE REASON I'M ADVOCATING FOR IT SINCE THERE'S A, A GAP FILLLER COULD APPLY. YOU KNOW
GHANDI WASN'T DEALING WITH CONSTITUTIONAL AVOIDANCE SO I THINK YOU COULD STILL GET
THERE. JUSTICE PATTERSON: I'M SORRY, I MISSED THAT. DID YOU SAY IT IS OR IT
ISN'T A HIGHER STANDARD. MR. FLYNN: IT IS A HIGHER STANDARD. THE REASON I'M
SAYING THAT RECKLESSNESS COULDN'T BE READ INTO THE STATUTE BUT EVEN IF IF YOU DID WANT
TO DO THAT'S CORRECT MR. HILL'S CONVICTION STILL NEED TO BE REVERSED. BUT THE ORIGINAL
REASON WHY, 1 OF THE OTHER REASONS I'M ADVOCATING FOR KNOWLEDGE IS THAT THAT WOULD BRING
THE STATUTE WITHIN THE AMBIT OF SPEECH INTEGRAL OF OF KRANL CONDUCT EXCEPTION AND THEN
YOU KNOW WHETHER THE SPEECH IS THREATENING OR NOT IT WOULD BE UNPROTECTED BECAUSE IT'S
DONE WITH THE KNOWLEDGE OR INTENT THAT IT, YOU KNOW, THE PERSON COMPLITD ANOTHER CRIME
BASED ON THAT SPEECH HERE. YOU KNOW, TESTIFY FALSELY. THE COURT:^ THANK YOU,
COUNSEL. THANK YOU TO ALL COUNSEL FOR THE HELPFUL AURJTSDZ. WE'LL TAKE THE MATTER UNDER
ADVISEMENT