What Qualifies as Evidence Tampering?
Tampering with Evidence is commonly depicted on TV police dramas as removing fingerprints from crime scenes or scratching serial numbers from firearms, but many people might not know what else qualifies.
Elements of the Crime
The prosecution has the burden of establishing that the accused performed an action that could be legally considered tampering with evidence. There are a number of elements that must be established for the prosecution to make a case.
- The first and most important element is the accused’s original intent. If, for example, the accused lost his or her phone containing incriminating photos weeks before an arrest was made, it can be argued that this was not tampering with evidence. But if the accused purposely threw his or her phone in a lake during a police chase, a tampering with evidence charge is more likely to stick.
- The accused must also have knowledge of the possible results of his or her actions. When throwing something away or altering its contents, he or she must believe that there is a good chance these actions will result in lighter sentencing.
- The evidence allegedly tampered with must be physical evidence that might be produced in a legal trial, proceeding, or investigation. This also includes digital images and video or sound recordings stored on a device.
- The accused must understand that the potential exists for an investigation. For example, the accused may not know that he or she is participating in a crime. In this case, any tampering of evidence may not have been in contemplation of a current or future proceeding.
What Is Tampering?
In broad terms, evidence is anything that can support a legal claim or show that a legal claim is false. When a person tampers with evidence, they are either:
- Altering it (changing the date on a receipt or invoice, for example);
- Destroying it (burning incriminating documents or marijuana plants);
- Concealing it (hiding cocaine above ceiling tiles or flushing it down the toilet); or
- Making false evidence (planting fingerprints or DNA at a crime scene).
In practice, anything from furtively throwing an open can of beer out of a moving car during a traffic stop to planting someone else’s clothing at a crime scene can be charged as tampering with evidence.
Penalties for Tampering with Evidence
In Nebraska, tampering with evidence is always a Class IV Felony. Those sentenced face up to five years in prison, a fine up to $10,000, or both.
Defending Against a Tampering with Evidence Charge
As stated above, the prosecution has the burden of establishing all elements of the crime to prove that the accused has committed an offense. The accused and his or her attorney may use a number of defenses against the charge, including:
- Mistake of Fact, which is raised to argue that the accused did not know the objects he or she was destroying were relevant to a potential legal proceeding;
- Voluntary or Involuntary Intoxication, which relies on the theory that the accused could not possibly understand the extent of what he or she was doing; and
- Abandonment, which is the argument that the evidence was not “destroyed” but rather discarded because it was no longer wanted or needed by the accused.
Hiring a Criminal Defense Attorney
An experienced criminal defense attorney can investigate the claims made against you and determine which defenses might be most effective. The team of attorneys at Berry Law Firm have been defending the rights of clients for decades. Call us today to schedule a consultation.