Introduction:
It can be so tempting.
Today, when so much critical evidence is found in emails and attachments to emails, if one discovers a dangerous item of evidence that undermines your position, a simple click on the delete key would seem to solve the problem of that evidence. Right?
Wrong. It is not only unethical and usually unsuccessful but opens up the perpetrator to both criminal and civil liability, whether in a Federal or State court.
And the same holds true for any type of evidence, be it mail, a memo, a report, or a defective product stored in your basement. Destroying evidence can be the most foolish act that a party or witness can perform. Like Nixon with his erasure of the tape recording of a telephone conversation, it is nearly certain that such destruction will result in a firm conclusion that one was hiding admissions of guilt. It can never be recommended.
This article shall discuss both the criminal and civil penalties that may ensue and the practical problems that also arise.
The Basic Law:
The criminal sanctions that apply are significant:
Federal:
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
(Added Pub. L. 107–204, title VIII, § 802(a), July 30, 2002, 116 Stat. 800.)
California:
California Penal Code - PEN § 135
A person who, knowing that any book, paper, record, instrument in writing, digital image, video recording owned by another, or other matter or thing, is about to be produced in evidence upon a trial, inquiry, or investigation, authorized by law, willfully destroys, erases, or conceals the same, with the intent to prevent it or its content from being produced, is guilty of a misdemeanor.
California law strictly prohibits the destruction of evidence, which can include shredding documents or tampering with records. Whether an individual or a business, being aware of the legal consequences of destroying evidence is crucial to avoiding criminal and civil penalties. It can lead to significant legal consequences, including jail time, fines, probation, or sanctions from an angry court.
Destroying evidence becomes a criminal act under California law when it is done willfully and knowingly during a legal proceeding. This means that in order to face charges, a prosecutor must prove two key things:
Willful Intent: The person intended to commit the act of destruction.
Knowledge: The person knew that the material being destroyed was relevant to an investigation or legal inquiry.
For example, shredding documents as part of a routine business practice that has been in regular use long before the matter became critical or to routinely protect personal information is not illegal. However, once there is knowledge of an ongoing investigation or trial, destroying anything that could serve as evidence can lead to charges.
To face criminal penalties for destroying evidence, the act must occur during a specific legal proceeding. But what qualifies as a legal proceeding under California law?
An ongoing criminal investigation
A trial or arbitration proceeding
Any official legal inquiry or hearing
If you destroy evidence before a legal proceeding has started, such as during a routine clean-up or document purge, you are unlikely to face charges. However, it’ is vital that you do not take such steps if there is any real likelihood that an investigation or inquiry could be on the horizon.
Spoliation in Civil Cases
In civil cases, spoliation applies after the parties are aware of the duty to preserve evidence. For example, if someone is injured in a store and the incident is captured on surveillance, the footage becomes crucial evidence. If the store employee deletes this footage knowing such litigation is likely or has begun, then spoliation has occurred.
In civil cases, spoliation is relevant once parties are aware they must preserve evidence.
Preservation Requests
Attorneys should issue a preservation or spoliation letter to ensure relevant evidence is safeguarded. Such notice is usually by email or letter and advises the party that such evidence must be preserved. This request eliminates any later claim that the party destroyed evidence not knowing it was vital to maintain it and can impose sanctions on the party (or attorney) who ignores it.
T-Motion in Criminal Cases
If police or prosecutors destroy or mishandle evidence favorable to the defendant, the defendant can file a Trombetta motion (T-Motion). The motion argues for dismissal or reduced charges due to a lack of relevant evidence.
A judge’s decision on a T-Motion depends on the value of the evidence in the defendant’s case and whether the government acted in bad faith.
Filing a T-Motion in a criminal case involves the following steps:
Identify the Destroyed or Mishandled Evidence: The defendant must identify specific evidence that the police or prosecutors have destroyed or mishandled.
Determine the Evidence’s Favorability: The evidence in question should be potentially favorable to the defendant’s case.
Draft the T-Motion: The motion should clearly state the nature of the destroyed or mishandled evidence, its potential impact on the defendant’s case, and argue that its loss prejudices the defendant’s right to a fair trial.
File the Motion: The completed motion is filed with the court where the criminal case is being heard.
Court Hearing: A hearing is usually scheduled, during which the defendant’s attorney can present arguments and any supporting evidence about the spoliation.
Prosecution’s Response: The prosecution may respond to the motion, typically arguing why the evidence was not crucial or disputing the allegation of bad faith.
Judge’s Decision: The judge will consider the motion, taking into account the significance of the evidence and whether there was bad faith in its destruction or mishandling. The judge will then decide whether to grant or deny the motion, potentially leading to dismissal or reduction of charges if the motion is successful.
Defenses to Destruction of Evidence Claims
If you are facing charges for the illegal destruction of evidence, several defense strategies may be available, depending on the situation. One common defense is arguing that the act was not willful. For instance, if documents were damaged accidentally, such as by spilling a liquid or a natural disaster, you could potentially avoid criminal penalties by proving the destruction was unintentional.
Another defense might be to argue that you did not know the materials were part of a legal proceeding or investigation. If you can show that the destruction took place before any formal investigation began, this could work in your favor.
Criminal Penalties
In California, destroying evidence is typically charged as a misdemeanor offense. While this is a less severe classification than a felony, the penalties can still have a lasting impact. If convicted, one could face:
Up to six months in county jail
Fines of up to $1,000
However, in many cases, first-time offenders may be offered probation instead of jail time, especially if the circumstances of the case are not considered particularly serious. Serving summary probation often comes with specific conditions, such as community service or attending educational programs.
The criminalization of spoliation under Penal Code 135 PC underscores the importance California places on the integrity and preservation of evidence in legal proceedings. It acts as a deterrent against tampering with evidence, ensuring fairness and justice in both civil and criminal cases.
Practical Considerations:
If you destroyed evidence by error or inadvertence, it may hurt your case even if no sanctions or criminal penalties are imposed. Once a judge or jury hears that relevant documents are missing, they will automatically presume that the evidence was extremely adverse to your case and judge accordingly. And your protestations that the evidence was neutral or favorable will be viewed with a great deal of skepticism. Just ask Richard Nixon.
And if you have compounded the error by trying to cover it up or denying you did it, not only are sanctions more likely, but no jury in the world will believe your characterization of the evidence. You almost guarantee that the evidence you could perhaps explain away will truly damage your case.
Erasing an email or a document on your computer is extremely difficult. Not only is it often stored in various places on your computer, but if on the internet it will be stored in servers there and, of course, someone either sent or received your email and if you attempt to get them to erase the message, your crime and sanctions are compounded.
One wise old attorney known to the author had some very good advice which worked for this writer more than once. He said most parties and attorneys are too lazy to perform the type of search that will find all the evidence. If there is something harmful, sit tight and the odds are good no one will ever find it. Do not intentionally make it hard to find; do not deny that it exists. Wait and see if it comes up.
And even if it does, a good attorney will have ways to explain or characterize it that may limit its harm. A piece of evidence that is harmful is never as harmful as the attempt to destroy it.