Evidentiary foul play: The roles of judge and jury in responding to evidence tampering

International Commentary on Evidence

Volumn 7, Issue 1, 2009, Pages

  Nance, Dale A ^a  

^a Maastricht University   (United States)

Author keywords

Adverse inference; Destruction; Evidence; Missing evidence; Missing witness; Spoliation; Suppression; Tampering

Indexed keywords

EID: 67650928364     PISSN: 15544567     EISSN: 15544567     Source Type: Journal    
DOI: 10.2202/1554-4567.1094     Document Type: Review

References (92)

1. KEVIN O'MALLEY, JAY E. GRENIG, & WILLIAM C. LEE, FEDERAL JURY PRACTICE AND INSTRUCTIONS §104.27 (5th ed. 2000).
2. The phrase is intended to cover all forms of evidentiary misconduct during the course of litigation that have been subjected to the remedy of an adverse inference. Cf. Chris William Sanchirico, Evidence Tampering, 53 DUKE LJ. 1215, 1218 (2004) (defining "evidence tampering" as covering "the full range of activities by which parties alter the natural evidentiary 'emissions' of the transactions and occurrences that may give rise to suit.")
3. See, e.g., 2 MCCORMICK ON EVIDENCE §§264,265 (Kenneth S. Broun, gen. ed., 6th ed. 2006);
4. CHARLES A. WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 5178(1982).
5. See, e.g., Herbert v. Wal-Mart Stores, Inc. 911 F.2d 1044,1048 (5th Cir. 1990) (proposing in dictum the rejection of missing witness inferences in federal civil trials);
6. State v. Malave, 737 A.2d 442,447 (Conn. 1999) (noting the statutory abolition of missing witness instructions in civil trials, disallowing such instructions in criminal trials, and discouraging prosecutorial arguments inviting an adverse inference against the accused);
7. State v. Brewer, 505 A.2d 774, 776-77 (Me. 1985) (disallowing missing witness inferences in criminal trials); State v. Caron, 218 N.W.2d 197,199-200 (Minn. 1974) (disallowing missing witness inferences against the accused);
8. Henderson v. State, 367 So.2d 1366, 1368 (Miss. 1979) (disallowing jury instructions authorizing an adverse inference from either party's failure to call a witness in criminal cases);
9. Ross v. State, 803 P.2d 1104, 1105-06 (Nev. 1990) (disallowing missing witness inferences against the accused);
10. State v. Jefferson, 353 A.2d 190,110506 (R.I. 1976) (disallowing missing witness inferences against the accused);
11. State v. Hammond, 242 S.E.2d 411, 416 (S.C. 1978) (concluding that missing witness instructions are improper in civil and criminal trials, but noting that comment by counsel may be permitted).
12. See, e.g., FED. R. EVID. 607.
13. See, e.g., FED.R.EVID. 614.
14. See, e.g., Carlucci v. Piper Aircraft Corp., 102 F.R.D. 472, 485 (S.D. Fla. 1984) (holding that intentional destruction of documents "eliminated plaintiffs' right to have their cases decided on the merits").
15. See United States v. Martin Linen Supply, 430 U.S. 564 (1977) (holding that a verdict may not be directed against the accused regardless of the strength of the evidence).
16. See In re Winship, 397 U.S. 358,364 (1970) (requiring proof beyond reasonable doubt as to every element of the prosecution's affirmative case).
17. See, e.g., FED. R. CIV. P. 37(b)(2)(A). Functionally equivalent in this context is an order striking the pleading of the tamperor.
18. See, e.g., Fed. R. Civ. Proc. 37(b)(2)(C). However articulated, this will entail summary judgment.
19. See, e.g., Silvestři v. General Motors Corp., 271 F.3d 583 (4th Cir. 2001) (dismissing tamperor's claim);
20. DiDominico v. C&S AeromatikSupplies, Inc., 682 N.Y.S.2d 452 (N. Y. App. Div. 1998) (striking tamperor's pleading and entering summary judgment).
21. See, e.g., Beil v. Lakewood Engineering and Manufacturing Co., 15 F.3d 546 (6th Cir. 1994) (rejecting a summary judgment in favor of an adverse inference on account of the plaintiffs agent's destruction of the instrumentality of harm);
22. Rodriguez v. Webb, 680 A.2d 604 (N.H. 1996) (affirming the use of an adverse inference against the defendant for the defendant's fraudulent destruction of the instrumentality of the plaintiffs injury).
23. See infra, notes 36-39 and accompanying text. Another remedy commonly encountered in such cases is to exclude the testimony offered by the tamperor about the allegedly defective operation or condition of the product.
24. See, e.g., FED. R. CIV. P. 37(b)(2)(B). The advantages and disadvantages of this remedy are noted infra, notes 40-42 and accompanying text.
25. Nothing in what follows hinges on this explicit quantification of the burden of persuasion; it is used merely for expository clarity. Of course, the difficulties involved in such quantification have been discussed at length elsewhere. For a useful point of entry into the debate, see D.H. Kaye, Clarifying the Burden of Persuasion: What Bayesian Decision Rules Do and Do Not Do, 3 INT'L J. OF EVIDENCE & PROOF 1(1999).
26. Of course, evidence of tampering often is held not to violate the character evidence prohibition, FED. R. EVID. 404(b), because such evidence is relevant to consciousness of liability ("knowledge"), but its relevance in this manner does not obviate the need to balance probative value against the risk of unfair prejudice or misleading the jury, FED. R. EVID. 403, and there are cases excluding evidence of tampering on that basis.
27. See 2 MCCORMICK ON EVIDENCE, supra note 3, §at 228 n. 17.
28. See 2 MCCORMICK ON EVIDENCE, supra note 3, §265, at 228. This particular paragraph was not contained in the original treatise, but rather appeared in the second edition, prepared after McCormick's death.
29. See MCCORMICK'S HANDBOOK ON THE LAW OF EVIDENCE §273, at 661 (Edward W. Cleary, gen. ed., 2d ed. 1972).
30. See, e.g. McQueeney v. Wilmington Trust Co., 779 F.2d 916 (3d Cir. 1985) (reversing trial court's refusal to admit evidence of plaintiff s fabrication of evidence, by subornation of perjury, in context where plaintiffs efforts to discover potentially corroborating witnesses known to the defense may well have been stonewalled during discovery).
31. See Richard O. Lempert, Modeling Relevance, 75 MICH. L. REV. 1021, 1038-39 (1977).
32. This distinction tracks another, the distinction between two senses of evidentiary "weight." See Dale A. Nance, The Weights of Evidence, 5 EPISTEME: A JOURNAL OF SOCIAL EPISTEMOLOGY 267 (2008) (distinguishing between weight in the sense of the degree of completeness of the evidence and weight in the sense of the degree to which the available evidence favors one side or the other).
33. To avoid terminological confusion, I should say something about the use of the term "practical optimization." First, it is used to differentiate these decisions from decisions that are indifferent to, or at least not dominated by, costs and benefits, such as decisions controlled by deontological considerations. Second, it is normative: I do not mean to suggest that an accurate psychological description of the decision process for any given legal actor involves what decision theorists refer to as "unbounded rationality" (involving infinite calculation resources) or even "optimization under constraints," though they may for various purposes be modeled as if they do. For example, such decision processes may involve what is called "satisficing" or the use of "heuristics." What matters is that such devices contribute to achieving the most favorable balance of benefits and costs that is practically achievable.
34. See GERD GIGERENZER, PETER M. TODD, AND THE ABC RESEARCH GROUP, SIMPLE HEURISTICS THAT MAKE US SMART 5-15(1999).
35. See John Kaplan, Decision Theory and the Factfinding Process, 20 STAN. L. REV. 1065 (1968). A more complete understanding takes into account the varying utilities of true positives and true negatives.
36. See Dale A. Nance, Evidential Completeness and the Burden of Proof, 49 HASTINGS L.J. 621,623(1998).
37. In Continental systems of adjudication, the parties have a reduced role in handling the search problem, but the final decision problem can still be separated from the search problem by assigning responsibility for the two tasks to different magistrates. Even a single judge handling the entire case wears two distinct hats: the investigator and the decider. See John H. Langbein, The German Advantage in Civil Procedure, 52 U. Cm. L. REV. 823, 826-32 (1985) (describing how the judge proceeds with investigation until the point is reached that a decision can be make).
38. See Nance, supra note 20, at 633-39 (identifying particular situations of sub-optimal search that cannot be properly addressed by jury adjustments of the odds or probabilities for ultimate material facts).
39. The matter can be conceptualized in a different way. In our defective product case, for example, a juror might conclude that, notwithstanding the evidence of the plaintiffs destruction of the product, the probability of defect still exceeds 50%, yet the juror might decide in favor of defendant nonetheless, on the ground that the evidence is too incomplete to permit a verdict and that the plaintiff should bear responsibility for that incompleteness. This presumes (contrary to the assumption in the text) that the burden of persuasion requires something besides a probability of defect in excess of 50%, that it has a second component related to completeness of the evidence. Indeed, some scholars have argued in favor of this idea.
40. See, e.g., ALEX STEIN, FOUNDATIONS OF EVIDENCE LAW 80-106,118-33 (2005). A generalization of my point in regard to evidence tampering it that management of the completeness of evidence is properly a judicial task, part of the burden of production, not part of the burden of persuasion.
41. See Dale A. Nance, Allocating the Risk of Error: Its Role in the Theory of Evidence Law, 13 LEGAL THEORY 129, 138-54 (2007).
42. Why not, in particular, allow the jury to adjust the burden of persuasion to take into account evidence tampering by the parties? Cf. Erik Lillquist, Recasting Reasonable Doubt: Decision Theory and the Virtues of Variability, 36 U.C. DAVIS L. REV. 85 (2002) (discussing the ad hoc adjustment of the burden of persuasion in criminal cases to reflect a variety of considerations, but not considering evidence tampering).
43. For example: If it is peculiarly within the power of either the government or the defense to produce a witness who could give relevant testimony on an issue in the case, failure to call that witness may give rise to an inference that this testimony would have been unfavorable to that party. No such conclusion should be drawn by you, however, with regard to a witness who is equally available to both parties or where the testimony ofthat witness would be merely cumulative. IA KEVIN O'MALLEY, JAY E. GRENIG, & WILLIAM C. LEE, FEDERAL JURY PRACTICE AND INSTRUCTIONS §14:15 (6th ed. 2008).
44. Similarly complex legal and factual inquiries arise in the context of determining whether a witness is unavailable to the prosecution at trial so as to render the witness's hearsay admissible, inquiries that are, of course, assigned entirely to the trial judge. See Richard D. Friedman, THE ELEMENTS OF EVIDENCE 361-64 (3d ed. 2004).
45. See, e.g. United States v. Martin, 696 F.2d 49, 52 (6th Cir. 1983); Simmons v. United States, 444 A.2d 962, 963-64 (D.C. App. 1982).
46. See Robert H. Stier, Jr., Revisiting the Missing Witness Inference: Quieting the Loud Voice from the Empty Chair, 44 MD. L.REV. 137,145-51 (1985). Consequently, it would be a mistake to think that committing these evidence search problems to the jury would avoid the proliferation of a more rigid body of law and allow the full flexibility of ad hoc judgment. It does not work that way.
47. - 836 F.2d 1104 (8th Cir. 1988).
48. Id. at 1111.
49. Id. at 1112.
50. 116F.R.D. 107 (S.D. Fla. 1987).
51. Id. at 136 (citation omitted).
52. See generally NEIL VIDMAR & VALERIE P. HANS, AMERICAN JURIES: THE VERDICT 9-10 (2007) ("If you learn anything from American Juries, it should be that, given the right environment, the proper tools, and the appropriate instructions, juries are reliable, fair, and accurate").
53. Similarly, although there is diversity of opinion on the matter, the better practice is to impose issue preclusion in criminal cases when the state has violated a duty to preserve evidence, unless of course the evidence has only minimal probative value. Compare United States v. Ramirez, 174 F.3d 584 (5th Cir. 1999) (holding that proper remedy for government's intentional or negligent destruction of tangible evidence must be dismissal of the indictment "because a new trial cannot remedy the government's nondisclosure," that is, even if an adverse inference were allowed on retrial);
54. with State v. Serna, 787 P.2d 1056, 1060 (Ariz. 1990) (affirming the adequacy of an adverse inference jury instruction "unless the defendant is prejudiced or the state acts in bad faith").
55. See, e.g., Capellupo v. FMC Corp., 126 F.R.D. 545, 552-54 (D. Minn. 1989) (discussing alternatives); ABC Home Health Services v. IBM Corp., 158 F.R.D. 180 (S.D. Ga. 1994).
56. See also Trevino v. Ortega, 969 S.W.2d 950 (Tex. 1998) (rejecting the "spoliation tort" and canvassing the alternatives).
57. The classic study is: John M. Maguire & Robert C. Vincent, Admissions Implied from Spoliation or Related Conduct, 45 YALE L.J. 226,231-35 (1935).
58. See also 2 MCCORMLCKON EVIDENCE, supra note 3,§ 265, at 228.
59. See MARGARET M, KOESEL, DAVID A. BELL, TRACEY L. TURNBULL, AND DANIEL G. GOURASH, SPOLIATION OF EVIDENCE 36-38 (2000).
60. See, e.g., Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 77-79 (S.D.N.Y. 1991) (imposing monetary sanctions to redress negligent destruction of evidence). There is also the less useful option of relegating the disadvantaged opponent to an expensive and time-consuming separate action in tort. Compare Ariel Porat & Alex Stein, Liability for Uncertainty: Making Evidential Damage Actionable, 18 CARDOZO L. REV. 1891 (1997) (advocating the cause of action in tort), with
61. Richard Friedman, Dealing with Evidentiary Deficiency, 18 CARDOZO L. REV. 1961, 1979-80 (1997) (arguing that remedies intrinsic to the litigation of the primary claim are more efficient than a distinct cause of action in tort). The acceptance of a distinct spoliation tort varies considerably among jurisdictions.
62. See generally JAMIE S. GORELICK, STEPHEN MÄRZEN, & LAWRENCE SOLUM, DESTRUCTION OF EVIDENCE eh. 4 (1989, 2008 Supp).
63. See, e.g., FED. R. CIV. P. 37(b)(2)(B);
64. FED. R. CRIM. P. 16(d)(2).
65. See KOESEL ET AL., supra note 38, at 42-45.
66. See, e.g., Fire Insurance Exchange v. Zenith Radio Corp., 747 P.2d 911 (Nev. 1987) (affirming summary judgment after exclusion of evidence and noting the superiority of this procedure over the alternative of sending the case to trial with an adverse inference).
67. Whether or not based on constitutional due process concerns, this may be understood as imposing a burden of production with respect to that witness. See generally Nance, supra note 20.
68. In an unusual case, when the judge determines that the witness is needed despite the failure of both parties to call the witness, then the court has the choice either to impose a burden of production on the party bearing the burden of persuasion (here, presumably the prosecution) or to call the witness sua sponte as the court's witness. See, e.g., FED. R. EVID. 614.
69. This pattern appears in cases involving government informers. See, e.g. Roviaro v. United States, 353 U.S. 53 (1957) (holding against the government's claim of privilege for an informer's identity, and noting that, in the absence of a valid privilege, the prosecution must choose between disclosing the informer's identity and dismissing the prosecution);
70. United States v. Tucker, 552 F.2d 202 (7th Cir. 1977) (reversing a conviction despite the trial court's employment of an adverse inference against the government for failure to produce the informant).
71. The idea is not without precedent. Consider the following jury instruction, approved on appeal: [Y]ou may take it for granted that all of the available evidence material and favorable to either side has been placed before you by one side or the other, so that you, Gentlemen, are as well informed and in as good a position to decide the case correctly as any jury could be. Stocker v. Boston & Maine Railroad, 151 A. 457, 457 (N.H. 1930).
72. See Crane v. Kentucky, 476 U.S. 683 (1986) (holding that the defense is entitled to present to the jury evidence concerning the voluntariness and thus reliability of a confession even though the trial court has held the confession to have been voluntary and therefore admissible).
73. See FED. R. EVID. 403.
74. Cf. Lego v. Twomey, 404 U.S. 477 (1972) (holding that the accused is not entitled to have a jury decide the question of voluntariness of a confession).
75. See, e.g., 2 MCCORMICK ON EVIDENCE, supra note 3, §§264, 265. Just as the independent spoliation tort is typically an inadequate remedy for a civil party's evidence tampering, criminal prosecution for obstruction of justice and related crimes committed by someone accused of another crime, though sometimes theoretically available, is usually a less than satisfactory remedy.
76. See GORELICKET AL., supra note 39, §5.1 (noting that the hurdles facing successful prosecution for obstruction are difficult to surmount).
77. See, e.g., FEDERAL CRIMINAL JURY INSTRUCTIONS OF THE SEVENTH CIRCUIT, Instruction No. 3.24 (1999) (discouraging the use of missing witness instructions in general and endorsing, for those unusual circumstances where one is appropriate, an instruction that reminds jurors that "the law does not impose on a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence");
78. PATTERN JURY INSTRUCTIONS OF THE FIRST CIRCUIT, CRIMINAL CASES, Instruction No. 2.11 (1998) (providing similar admonition).
79. See State v. Brewer, 505 A.2d 774, 777 (Me. 1985);
80. State v. Caron, 218 N.W.2d 197,200 (Minn. 1974);
81. Ross v. State, 803 P.2d 1104,1105-06 (Nev. 1990);
82. State v. Jefferson, 353 A.2d 190,199 (RJ. 1976).
83. See State v. Tahair, 772 A.2d 1079, 1086 (Vt. 2001);
84. Russell v. Commonwealth, 223 S.E.2d 877, 879 (Va. 1976).
85. See, e.g., State v. Malave, 737 A.2d 442, 451 (Conn. 1999) (disapproving adverse inferences relying principally on non-constitutional arguments and adding constitutional concerns as a matter of "policy," but rejecting the constitutional argument as such).
86. Compare Griffin v. California, 380 U.S. 609 (1965)
87. (barring comment on the accused's failure to testify), with United States v. Hubbell, 530 U.S. 27 (2000)
88. (barring use of subpoena duces tecum directed at the accused to conduct "fishing expedition" to find inculpatory evidence), and id., at 49-56 (concurring opinion of Justices Thomas and Scalia proposing to extend the privilege to protecting against the compelled production not just of incriminating testimony, but of any incriminating evidence).
89. Arguably, the functional equivalent of this paradigm occurs when the defense does not reveal the name or identity of the witness until trial, a common enough occurrence because the defense is rarely if ever required to disclose in advance of trial the identity of potential witnesses that the defense does not intend to call. See, e.g., Robinson v. State, 554 A.2d 395 (Md. 1989) (affirming adverse inference against the accused, who did not reveal until trial the identity or whereabouts of an acquaintance claimed by the accused to be the source of the vehicle alleged to have been stolen);
90. People v. Macana, 639 N.E.2d 13 (N.Y. 1994) (affirming adverse inference against the defendant for failure to produce his father as a witness, when the defendant first testified at trial that the weapon involved belonged to and was used by his father and the police had no previous knowledge of the father's possible involvement). The question that arises in such cases, but seems to be rarely discussed, is whether the prosecution can gain access to the witness during trial in time to present the witness in rebuttal. 37 Some cases have begun to respect this principle. See the criminal cases cited supra note 4.
91. See, e.g., Clifton v. United States, 45 U.S. (4 How.) 242 ( 1846) (affirming use of adverse inference from failure of civil claimant to produce documents at trial when requested to do so by the government).
92. See, e.g., Herbert v. Wal-Mart Stores, Inc., 911 F2d 1044, 1046, 1048 (5th Cir. 1990) (calling the missing witness rule an "anachronism" that has been applied by federal courts "reflexively").