In a civil or criminal trial,evidence may be presented by either side to prove or disprove that a crime occurred. Evidence is important for the prosecution in a criminal proceeding to prove its case beyond a reasonable doubt and in a civil case for the plaintiff to prove that it is entitled to damages. Whether it is a civil or a criminal proceeding, evidence may be presented that is physical or verbal, such as in the form of a confession by the defendant, testimony by a witness, DNA, drug paraphernalia or photographs.

What is Spoliation Of Evidence?

The outcome of a case hinges on the strength of the evidence presented and the evidentiary rules are quite strict about the responsibilities of both parties to preserve evidence. Any intentional, reckless, or negligent hiding of evidence by either party to the proceeding is illegal. This is known as spoliation of evidence (also tampering with evidence) and can result in serious legal consequences. While the concept of spoliation of evidence may be applied in a civil case, it is often at issue in criminal cases.

What is Considered Hiding of Evidence?

“Hiding” of evidence is quite broad. It can include any action that results in the hiding, withholding, altering or destruction of evidence relevant to the case. Essentially, any action by the part that makes the evidence unavailable for the legal proceeding may be considered spoliation of evidence. As well, in some jurisdictions, witness tampering (i.e. intimidating a witness, physically preventing them from testifying, or persuading them to alter their testimony) can be considered an example of spoliation of evidence.

Are there Consequences for Spoliation of Evidence?

There are definitely consequences for spoliation of evidence, though what that is will depend on your jurisdiction. For example, a relative of a defendant intentionally destroys the text messages exchanged with the defendant about a robbery the defendant committed. If after a legal proceeding the relative’s guilt is established, the relative may be subject to fines or incarceration. In other jurisdictions, the court may allow a negative inference based on the spoliation of evidence which means that the fact they attempted to spoil the evidence can be a sign of guilt. In the above example, the court may allow a negative evidentiary inference against the defendant based on the destruction of the texts. The negative inference is based on the theory that the spoliation of evidence shows guilt because there is an attempt to hide the truth. In civil case involving a defective air bag that resulted in the death of the driver, the car manufacturer erases all of the customer complaints from its onsite computers and backup systems. The court in this jurisdiction may very well allow the jury to infer that the company’s action establishes the company’s knowledge that its airbags were defective. This inference would be a substantial blow to the defendant’s case. Finally, some jurisdictions allow a separate tort action for spoliation of guilt. The penalty here may be punitive, ordered to punish the defendant, or remedial in nature. For these types of torts, the evidence has to be relevant (i.e. there has to be resulting damage because of the spoliation of the evidence) to the complainant’s case and the offending party’s actions must have been deliberate or grossly negligent.

Are there Laws Against the Spoliation of Evidence?

There are various laws, better known as evidentiary rules, that impose a duty on the parties and their attorneys in a civil or criminal proceeding to preserve relevant evidence. For example, the Model Rules of Professional Conduct prevent a lawyer from assisting in conduct that may result in spoliation of evidence. Rule 37 of the Federal Rules of Civil Procedure provides substantial sanctions for any party’s failure to make disclosures or participate in discovery. These potential sanctions include:
  • Finding of contemptagainst the wrongful party;
  • Designating facts as established by the prevailing party;
  • Prohibiting the wrongful party from supporting or opposing claims or defenses;
  • Dismissing the action or proceeding;
  • Rendering a default verdict;
  • Striking all or parts of the pleadings; and/or
  • Requiring that the wrongful party pay to the prevailing party, all reasonable fees, including attorney fees.
Title 18 of the United States Code also provides sanctions that include fines and imprisonment for persons involved in destroying or helping to destroy evidence or who interfere with a criminal proceeding. For example, it provides that anyone who willfully engages in a bribe to obstruct, delay or prevent communication of information relating to a criminal offense can be imprisoned up to five years.

Should I Consult With an Attorney for Questions about Spoliation of Evidence?

If you have been made aware of a pending civil or criminal proceeding, you may have a legal duty to preserve evidence relevant to the case. What you must do to preserve the evidence may vary from jurisdiction to jurisdiction and the failure to adhere to these rules can result in serious legal consequences. To ensure that you do not run afoul of the law, consult with a criminal defense attorney about what you need to do.