The spoliation of evidence is the intentional, reckless, or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal proceeding.
Spoliation has two possible consequences: It may result in fines and prison for the person who engaged in the spoliation; and proceedings possibly altered by spoliation may be interpreted under a spoliation inference.
The spoliation inference is the inference that a finder-of-fact can review all evidence uncovered in as strong a light as possible against the spoliator.
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 spoil the evidence. Therefore, the factfinder may conclude that the evidence would have been unfavorable to the spoliator.
Let us look at three recent examples of spoliation of evidence - Koskinen, Clinton, and Brady - and the consequences of each to make certain that our society has its priorities correct:
- IRS Commissioner John Koskinen presides over an agency that touches the personal and professional lives of every American and is a part of an administration that claims to be the most transparent in history. Records from his agency were subpoenaed by the US Congress. He says that the records are no longer available. The hard drives of the computers where the records were located have been destroyed. The consequence: Crickets Chirping
- Former Secretary of State Hillary Clinton presided over an agency that is responsible for the foreign affairs of the United States and routinely handles sensitive and secret materials is a part of an administration that claims to be the most transparent in history. Records of her emails while Secretary of State are subpoenaed by the US Congress. The State Department says the records do not exist because Secretary Clinton had the records on a personal (illegal) server. Those records and the server are subpoenaed by the US Congress. Secretary Clinton says that the server has been destroyed. The consequence:
- Quarterback of the New England Patriots Tom Brady is involved in an infraction of the rules of the National Football League related to the air pressure in footballs. The NFL demands access to texts on Mr. Brady's cellular telephone. Mr. Brady says that the cellular telephone has been destroyed. Consequence: Mr. Brady is suspended for four games (25% of the regular season) and (as a result) the loss of approximately $2,000,000.