Evidence Spoilage in California – What is it & what are my rights?

Posted on January 25, 2023

Evidence spoilage is when a person or entity destroys or significantly alters evidence that is relevant to a pending or future civil or criminal court case. Spoilage also occurs when a person or entity fails to preserve property so that it can be used as evidence.

Spoilage is often referred to as “spoliation.”

Your rights with evidence spoliation will depend on whether it takes place in a civil or criminal case.

In a civil case, you generally have the right to file a lawsuit against any third party that negligently destroys or fails to preserve evidence.

In a California criminal case, if the police or a prosecutor destroys or mishandles evidence, the defendant can file a Trombetta motion seeking to have any charges dropped or dismissed.

1. What is the spoliation of evidence?

Spoliation refers to the destruction of evidence, alteration of evidence, or the failure to preserve evidence that is relevant to either:

• pending civil litigation or a criminal matter, or
• future litigation or a future criminal case.¹

Note that in criminal cases, the police and prosecutors have a general duty to protect and preserve evidence.

In civil cases, spoliation claims typically only arise after a party to a lawsuit, or some third party, becomes aware of a duty to preserve evidence.²

Consider a case, for example, where a woman slips and falls in a grocery store and the incident was captured on surveillance video.

A spoliation case would not normally arise if a store employee erased the video footage as part of his/her job. However, a case would arise if the employee knew that the injured victim had requested the footage and he/she erased it anyway.

A duty to preserve evidence in a civil case often arises after an attorney sends out:

• discovery requests that identify discoverable or relevant documents and discuss evidentiary issues, or
• a spoliation letter.

A spoliation letter is essentially a letter that:

• gives notice to an opposing party that certain evidence is requested, and
• requests the preservation of all relevant evidence in a case.

2. What are your rights in a civil case?

You generally have a tort claim in California, or a cause of action in civil court, if a third party (that is, a non-party to a lawsuit) negligently spoliated evidence.³

However, you generally do not have a right to bring a suit if there was:

• intentional destruction of evidence by a party to the suit,
• negligent spoliation by a party to the suit, or
• intentional spoliation of evidence by a third party.⁴

The reason for no cause of action in these instances is because:

1. California courts do not generally allow civil suits for litigation-related misconduct,
2. there are other remedies available in these instances, like jury instructions to the trier of fact, an adverse inference instruction, discovery sanctions, and attorney-disciplinary proceedings, and
3. it would be difficult for a court to determine an appropriate damage award.⁵

3. What are your rights in a criminal case?

The situation can arise in a criminal case where the police or prosecutor destroy or mishandle evidence.

If the destroyed evidence is (or could be) favorable to the defendant, then the defendant can file what is known as a “Trombetta motion” or “T-motion.”⁶

In the motion, the accused basically states that because there was a destruction of relevant evidence, the court should drop or reduce the criminal charges in the case.

A judge will either grant or deny a T-motion. The judge will make a decision by considering:

1. how valuable the evidence was to the defendant’s case, and
2. whether or not the government acted in bad faith.

4. Is the spoliation of evidence a crime in California?

It can be, yes. Penal Code 135 PC is the California statute that makes it a crime for a person to:

1. willfully destroy or hide evidence, and
2. do so while knowing such evidence is relevant to a trial, police investigation, inquiry, or other legal proceeding.⁷

Examples of criminal acts under this law are:

• deleting incriminating electronically stored information (ESI) from a computer’s hard drive during a criminal fraud trial,
• a defendant in a civil case destroying any pictures that help prove the plaintiff’s case.

A violation of PC 135 is charged as a misdemeanor offense. Penalties include:

• custody in county jail for up to six months, and/or
• a maximum fine of $1,000.⁸

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