Tampering With Evidence

A common scene on police drama shows is that of a suspect fearing imminent capture by the police, destroying or damaging evidence. That suspect might be tossing incriminating documents into an open fireplace or flushing drugs down a toilet. These scenes depict classic examples of criminal cases that involve tampering with evidence.

Tampering with evidence is a crime that encompasses any action that destroys, alters, conceals, or falsifies any evidence. The definition of evidence is also very broad. It includes any object, document, or record useful to an investigation or a civil or criminal proceeding, regardless of whether it is pending or ongoing.

Elements of the Offense

The prosecution must establish all elements of the crime to prove a criminal offense. For a conviction, the state must prove each element beyond a reasonable doubt. The basic elements of the crime of tampering with evidence include:

• Intent: The accused's state of mind is a key element of the offense. The prosecution must show that the defendant interfered with evidence in a willful or purposeful manner. Accidental destruction or simple abandonment (throwing away) may not be enough to prove intent.
• Knowledge: A person acts with knowledge when they are aware that their conduct will probably cause a certain result. With a tampering charge, the accused must believe there is a high chance that their actions will damage or conceal the evidence.
• Evidence: This includes every physical object or document that might be produced in any legal trial, proceeding, or investigation. It also includes digital images and video recordings.
• Awareness of a Potential or Pending Investigation: The accused has reason to know that a criminal investigation or official proceeding is ongoing or about to start. This aligns with their intent to conceal, alter, or destroy evidence. It cannot be a general awareness that crimes may lead to criminal investigations and proceedings.

Common Acts of Tampering

Tampering is a broad concept that covers any action that conceals a crime, but there are limits to what can result in charges. For example, the fact that a suspect discards evidence does not necessarily mean they had the culpable state of mind for tampering with evidence. Law enforcement must ask a series of questions:

• Did they know it was evidence of a crime?
• Did they discard it to destroy evidence or prevent its discovery?
• Did they know the police had an ongoing criminal investigation?
• Did they know that official proceedings were underway?

Common actions supporting evidence tampering charges may include altering, concealing, or destroying evidence. Moving an item to hide or make it unavailable can also qualify as tampering. Sometimes, someone will present false evidence to deceive investigators or other officials. Here are some common scenarios:

• During a police drug raid, a suspect eats the evidence, swallowing the baggie of cocaine they had in their hand.
• A cat burglar comes through an unlocked window of a residence. They steal the victim's jewelry and go out the same window. They wipe off any fingerprints they may have left at the crime scene, including doorknobs, drawer handles, the window, and the windowsill.
• After a bitter divorce, an ex-spouse slices the tires of their former partner and then throws the knife in a dumpster across town.
• A man has a long-standing grudge against his neighbor for playing loud music late into the night. He tosses a baggie of marijuana into the front seat of his neighbor's car and then calls the police over the loud music. The police provide a warning over the loud music but arrest the neighbor for possession of drugs.

Often, one thinks of tampering as conduct by a criminal to hide their crime. Yet, some criminal cases start when a person plants evidence to cause the arrest of another person. Notorious cases where police officers engage in such conduct garner public attention and outrage. Yet, criminal defense lawyers remind the public that anyone could fabricate physical evidence. Law enforcement investigators must always be on guard for such behavior.

It is important to note that tampering with evidence charges rarely occur in a vacuum. Prosecutors may file a tampering charge along with an underlying criminal offense. Criminal cases that include a tampering charge may also have related offenses such as obstruction of justice.

Federal and State Law Examples

Federal law (18 U.S.C. Section 1519) prohibits tampering with evidence related to a federal investigation or bankruptcy proceeding. The elements of the crime include:

• Acting with knowledge
• To alter, destroy, mutilate, conceal, cover up, falsify, or to make a false entry in any record, document, or tangible object
• With intent to impede, obstruct, or influence
• An investigation or the proper administration of any matter

Conviction of a federal tampering offense is a serious matter. It can result in a fine and/or prison time of up to 20 years.

State offenses cover similar grounds. Texas Penal Code Section 37.09 sets forth the crime of tampering with or fabricating physical evidence. Its elements include:

• Knowing that an investigation or official proceeding is pending or in progress
• A person alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence or
• Makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or proceeding

This offense is a third-degree felony. A conviction can result in a sentence of two to 10 years in prison and a fine of up to $10,000. A separate section of the law creates a misdemeanor tampering offense where a person observes a human corpse under circumstances that would make a reasonable person believe that a crime occurred and does not notify law enforcement officers. Conviction of this lesser offense can carry up to one year in prison and a fine of $4,000.

Penalties for Evidence Tampering

Tampering with evidence can be charged as a misdemeanor or a felony. The laws of each state and the nature of the alleged actions will determine the level of punishment. As the tampering offense represents a crime against the justice system, courts may closely examine any prior criminal record before sentencing. Prior offense history for similar conduct may lead to a harsher penalty.

Upon conviction in a tampering case, a court may sentence as follows:

• Jail time for up to one year for a state misdemeanor conviction
• Fines as specified in state statutes
• State prison sentences in cases where the crime is a felony
• Prison for up to 20 years for federal charges of tampering with evidence

Defending Against a Criminal Charge

The law requires that there is a presumption of innocence provided to anyone accused of a crime. This remains until such time (if any) that a court or jury issues a finding of guilt after a plea or trial.

People accused of crimes have important due process rights, such as the right to counsel, the right to a speedy trial, and the right to face and confront the witnesses who testify against them. To obtain a conviction for tampering with evidence, the government must convince a jury of each element of this crime beyond a reasonable doubt.

There are some common defense strategies that the accused may employ in a tampering with evidence charge, including:

• Lack of Intent: The prosecution must prove that the accused intended to commit the act of tampering with evidence of a crime. Thus, they may claim they were unaware of any underlying crime. For example, the owner of a home where a crime occurred may claim they were ignorant of any evidence of a crime when they cleaned the home.
• Mistake of Fact: Much like lack of intent, a mistake of fact is raised to argue that the defendant mistakenly believed the things destroyed were irrelevant to any legal proceeding. A person charged with drug trafficking may state they threw away an old cell phone but claim that it was no longer needed. They could deny any knowledge that it might have evidence relevant to a crime.
• Not Aware of a Criminal Investigation or Official Proceeding: Timing may be key under state laws. An accused may participate in an "obvious crime," such as placing illegal drugs in a body cavity. But, the prosecution must prove tampering in contemplation of a current or future investigation or proceeding. So, if the drug placement occurred as officers approached to prevent their discovery, a tampering crime may go forward. A different outcome may follow where the accused placed the drugs hours ago and then gets pulled over for speeding by the police. In this latter scenario, the accused takes no new action to conceal the drugs from a police investigation. If the officer discovers the drugs, it may only result in drug possession charges.
• Duress: In cases with co-defendants, someone accused of tampering may claim that the principal defendant forced them to destroy evidence. They may argue that their actions were not voluntary and occurred under threat of physical harm.
• Invalid Search or Seizure: Often, tampering cases result from drug crimes. The defense may seek to question how the police obtained the evidence in the first place. If the defense can refute probable cause for a search or seizure, this may lead to suppression of the evidence. An unfavorable evidence ruling may weaken the state's case or lead to a negotiated settlement.

Do You Need More Information? Get Legal Help

Any criminal charge is serious business. Those facing tampering crimes may face felony penalties. If you face tampering charges, consider getting legal advice so you can assess the need for pretrial motions and possible defenses. The law relating to tampering with evidence can be complex. An experienced criminal defense attorney can investigate the claims against you and help determine how to defend the case best.