Tampering with evidence

Tampering with evidence, or evidence tampering, is an act in which a person alters, conceals, falsifies, or destroys evidence with the intent to interfere with an investigation (usually) by a law-enforcement, governmental, or regulatory authority.[1] It is a criminal offense in many jurisdictions.[2]

Tampering with evidence is closely related to the legal issue of spoliation of evidence, which is usually the civil law or due process version of the same concept (but may itself be a crime). Tampering with evidence is also closely related to obstruction of justice and perverting the course of justice, and these two kinds of crimes are often charged together. The goal of tampering with evidence is usually to cover up a crime or with intent to injure the accused person.[3][4]

Spoliation

Spoliation of evidence is the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding.[5] Spoliation has three possible consequences: in jurisdictions where the (intentional) act is criminal by statute, it may result in fines and incarceration (if convicted in a separate criminal proceeding) for the parties who engaged in the spoliation; in jurisdictions where relevant case law precedent has been established, proceedings possibly altered by spoliation may be interpreted under a spoliation inference, or by other corrective measures, depending on the jurisdiction; in some jurisdictions the act of spoliation can itself be an actionable tort.[6]

The spoliation inference is a negative evidentiary inference that a finder of fact can draw from a party's destruction of a document or thing that is relevant to an ongoing or reasonably foreseeable civil or criminal proceeding: the finder of fact can review all evidence uncovered in as strong a light as possible against the spoliator and in favor of the opposing party.

However, in U.S. federal courts, updates to the Federal Rules of Civil Procedure in 2015 have resulted in significant decline in spoliation sanctions.[7][8]

Theory

The theory of the spoliation inference is that when a party destroys evidence, it may be reasonable to infer that the party had "consciousness of guilt" or other motivation to avoid the evidence. Therefore, the factfinder may conclude that the evidence would have been unfavorable to the spoliator. Some jurisdictions have recognized a spoliation tort action, which allows the victim of destruction of evidence to file a separate tort action against a spoliator.[9]

While spoliation of evidence most often shows up in civil cases with allegations that the defendant allowed videos, photos or physical evidence to be destroyed, spoliation is also an issue where a person claims he has been injured by a defective product which he then discarded or lost.[10] In that circumstance, the defendant manufacturer or distributor may move to dismiss the case on the basis of spoliation (instead of just having to rely on the plaintiff's usual burden of proof, the argument being that any testimony of plaintiff's witnesses would not overcome the spoliation inference born of the lost evidentiary value of the missing product itself).[11]

Finally, some states have case law or code sections allowing parties to recover civil damages for the act of spoliation itself. Some states only allow it against third parties, where an insurance company allows a car involved in litigation to be crushed for example. Each state handles the issue in their own manner and case law is constantly evolving.

Brookshire Brothers Ltd. v. Aldridge

The use of a spoliation inference may be warranted depending on the circumstances, but not all cases of spoliation warrant this serious response by the court. In a 2013 case before the Texas Supreme Court named Brookshire Brothers Ltd. v. Aldridge, A man named Jerry Aldridge went into one of Brookshire Brothers' supermarkets, and after a few minutes in the store, slipped and fell. He went to a doctor approximately 90 minutes later, and returned to the store five days after the accident to complain of back injuries caused by the fall. The supermarket chain's security department only kept what it felt was the relevant part of that store's surveillance video consisting of just before to a few minutes after Mr. Aldridge slipped and fell.

When he first filed suit against Brookshire Brothers without an attorney, Mr. Aldridge was able to get video evidence consisting of the 30 seconds before he slipped and fell, plus the next seven minutes. He attempted to obtain more of the store's video surveillance footage, but was refused. When he hired an attorney, the attorney was also unable to obtain footage from before or after the event (which might have been useful to prove negligence based on how long the spill was on the floor, or on the seriousness of Mr. Aldridge's injury). The store's surveillance system automatically writes over previously recorded video after 30 days, unless saved separately. Brookshire Brothers did not keep any additional footage from before or after the accident.

The trial court judge found that the store's refusal to provide the additional video footage constituted spoliation, and gave the jury a "spoliation inference instruction". The jury was instructed that they may find the failure by the store to retain (and subsequently provide to the other party) the additional footage may be considered an attempt to hide evidence that Brookshire Brothers' management knew would be damaging to their case. The jury returned a verdict for Mr. Aldridge in excess of US $1 million. The Texas Twelfth District Court of Appeals upheld the verdict and the spoliation inference instruction. The Texas Supreme Court reversed, ordering a new trial, stating that it was abuse of discretion by the trial court to issue a spoliation inference instruction in this case, that the court should have imposed a different corrective measure on Brookshire Brothers (a less severe sanction), and that a spoliation inference instruction to the jury is only warranted in egregious cases of destruction of relevant evidence.[12]

By law enforcement

When police confiscate, secret[13] or destroy a citizen's photographs or recordings of officers' misconduct, the police's act of destroying the evidence may be prosecuted as an act of evidence tampering, if the recordings being destroyed are potential evidence in a criminal or regulatory investigation of the officers themselves.[14] In a notable case in Nebraska, officers were charged with the felony charge of evidence tampering, as well as misdemeanor obstruction and theft, when they committed brutality and forcibly stole and destroyed the recordings, which was exposed due to a third party's recording.[15] On the other hand, when police departments lose exonerating evidence that would create reasonable doubt for defendants in the cases they prosecute, such as dashboard-camera footage from patrol cars, it may be regarded as spoliation of evidence, potentially justifying motions to dismiss and/or mistrials. Police's loss of evidence such as footage may be considered as both spoliation and tampering, if it both exonerates the defendant and proves police misconduct.

An act of ruining or destroying evidence may sometimes be considered both spoliation of evidence and tampering with evidence. For example, when police destroy their own dashboard-camera footage or seize and destroy a citizen's video footage of an incident, it may constitute spoliation of evidence in a criminal case against the defendant if the footage tended to create reasonable doubt for the defendant, and also constitute tampering if the video were evidence of police misconduct in a criminal or regulatory investigation of the police's actions. The goal of spoliating or tampering with evidence is usually to cover up evidence that would be disfavorable to the doer in some way.

Moreover, tampering with and/or spoliation of exonerating evidence in criminal cases may also constitute prosecutorial misconduct if the prosecutor is complicit in doing so.

Spoliation of evidence is often important in e-discovery matters, as oftentimes records in electronic form such as SMS messages may be difficult to retrieve, preserve, or monitor.

Companies and organizations often attempt to avoid spoliation of evidence (or being accused or held liable therewith) by using a legal hold. Often, the legal departments of the company or organization will issue a prescribed order to the relevant employees to retain and preserve their discoverable materials (such as e-mails and documents).

See also

References
  1. Sanchirico, Chris W. (February 2004). "Evidence Tampering". Duke Law Journal. 53 (4): 1215. Retrieved 21 July 2017.
  2. "Destruction of document or electronic record to prevent its production as evidence". Singapore Statutes. Singapore Statutes. 2 November 2020. Retrieved 2 November 2020.
  3. "False charge of offence made with intent to injure". Singapore Statutes. Singapore Statutes. 2 November 2020. Archived from the original on 2 November 2020. Retrieved 2 November 2020.
  4. "Wrongful Convictions in Singapore: A General Survey of Risk Factors". Archived from the original on 2 November 2020. Retrieved 2 November 2020.
  5. Black's Law Dictionary (8th ed. 2004). For an overview of spoliation, see generally Michael Zuckerman, Yes, I Destroyed the Evidence -- Sue Me?, Journal of Computer and Information Law
  6. "Spoliation of Evidence in All 50 States" (PDF). Mwl-law.com. Retrieved 13 November 2017.
  7. "The End of Sanctions?". Logikcull.com. Retrieved 11 March 2020.
  8. "How Corporate Lawyers Made It Harder to Punish Companies That Destroy Electronic Evidence". ProPublica.com. Retrieved 11 March 2020.
  9. "Evidence Spoliation: A Growing New Tort - FindLaw". Library.findlaw.com. Retrieved 13 November 2017.
  10. "New York Lawyers - Risk Free Consultation. 24/7 Legal Help". Lawtrek.com. Retrieved 13 November 2017.
  11. "Suppression Spoilation of Evidence". Chestercountycriminallawyer.com. Retrieved 13 November 2017.
  12. Brookshire Brothers v. Aldridge, 10-0846, (retrieved 11 December 2014)
  13. "Destruction of document or electronic record to prevent its production as evidence". Singapore Statutes. Singapore Statutes. 2 November 2020. Retrieved 2 November 2020.
  14. "Know Your Rights: Protesters and Photographers". ACLU. Retrieved 21 July 2017.
  15. Stanley, Jay (8 Jan 2014). "Hidden Third Cameraman Proves Crucial in Nebraska Photographer-Abuse Case". ACLU. Retrieved 21 July 2017.

Further reading
  • Fournet, Caroline (2019). "Nothing Must Remain: The (In)visibility of Atrocity Crimes and the Perpetrators' Strategies using the Corpses of their Victims". In Smeulers, Alette; Weerdesteijn, Maartje; Hola, Barbora (eds.). Perpetrators of International Crimes: Theories, Methods, and Evidence. Oxford University Press. ISBN 978-0-19-882999-7.
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