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Destroying Evidence​ in California

Destroying or concealing evidence is a misdemeanor crime under California Penal Code 135 PC. "Destroying evidence" may conjure certain cinematic images, such as shredding documents, flushing drugs down the toilet, or burning tapes in a trash can. However even seemingly innocuous actions, like deleting a video from a friend's phone, can be considered destroying evidence.

Destroying evidence is prohibited in both criminal and civil cases, including divorce or contract dispute litigation. Essentially, if a document or piece of physical evidence will be used in a trial or investigation of any kind, it is illegal to willfully destroy or conceal it. Destroying evidence is a standalone crime, charged separately from the underlying crime.

For example, imagine you are charged with possession of drugs with intent to sell; you assume that the police may search your apartment. In the event that you return home, hide the drugs at a friend's house and wait until the investigation concludes, you have now committed the separate crime of concealing evidence. This would add to your drug possession charges if you are discovered.

Under California law, it is illegal to willfully destroy or conceal any of these items, if they will be presented as evidence in a legal proceeding:

  • document
  • book
  • paper
  • record
  • object
  • instrument in writing
  • digital image
  • video recording owned by another

In order to be found guilty of destroying evidence, the accused must explicitly intend to prevent the items from being submitted as evidence. Should you accidentally destroy a piece of evidence, or do so without knowing the item was evidence, you cannot be found guilty of the crime of destroying evidence.

A 1978 California court case established that a "trial is not a game where one counsel safely may sit back and refuse to produce evidence...A defendant is not under a duty to produce testimony adverse to himself, but if he fails to produce evidence that would naturally have been produced he must take the risk that the trier of fact will infer, and properly so, that the evidence, had it been produced, would have been adverse.” (Williamson v. Superior Court of Los Angeles County)

Elements of the Crime of Destroying Evidence

In order to secure a conviction, the prosecution must prove the two elements of this crime. These are:

  1. The suspect knew or should have known that the object, document, recording, etc. was to be used as evidence in a trial or investigation.
  2. The suspect willfully and knowingly destroyed or concealed said evidence. There has to have been intention behind the act that amounted to destruction or concealment.

The evidence in question must be subject to a legal proceeding, such as:

  • A criminal trial
  • A civil trial
  • A police investigation of illegal activity taking place in a detention facility
  • A parole violation hearing
  • A criminal investigation that hasn't yet resulted in any arrests

The suspected act must meet these conditions in order to qualify as destroying or concealing evidence. It is important to note that you can be convicted on this count for knowingly destroying almost any type of evidence. Some examples are more obvious, such as drugs, drug paraphernalia or a weapon used in the commission of a crime. However, even destroying or throwing away clothing someone wore during a crime may amount to the destruction of evidence, if the item in question would have been considered evidence in the case. Amendments to modern day law now make it a crime to destroy digital evidence as well.

With many other crimes in California, a defendant can be charged even if they only attempted the crime. In such cases, it is irrelevant to the prosecution that the suspect did not successfully complete the crime, what matters is that they tried to. However, an unsuccessful attempt to destroy or conceal evidence in California will not lead to a conviction. A person must succeed in the commission of this offense in order to be charged.

What if Concealed/Destroyed Evidence Is Found and Still Used in Court?

If evidence which was hidden or destroyed is successfully uncovered by authorities, then the person may not be guilty of destroying or concealing evidence. Because they ultimately failed in the commission of the crime, some may argue that they did not technically commit it. There is no guarantee that a person will not be convicted if they concealed evidence that was ultimately found. Because they interfered and made it more difficult for authorities, they may still be found guilty.

Penalties for Destroying Evidence in California

The maximum penalty for destroying or concealing evidence is either 6 months in county jail, a fine of up $1,000, or both. Bear in mind that these penalties would be leveled in conjunction with the penalties for any underlying crime you are accused of if convicted.

Defenses to Destroying Evidence in California

In order to defend against a charge that you destroyed evidence, your California criminal defense attorney will attempt to show that the conditions of the crime were not met. As mentioned, you had to have known that the item in question was evidence. You cannot be found guilty for innocently throwing away a document you thought to be trash.

Depending on the circumstances of the accusation and the type of evidence involved, it may be argued by your attorney that you did not know what you were dealing with a legally sensitive document, file or item when you "destroyed" or "concealed" it. This would be argued as a "mistake of fact," a common legal defense. Alternatively, your lawyer may argue that, even though you knew the object or document was evidence, you did not intend to destroy or conceal it. For example, accidentally knocking over a candle on a sensitive document is just that - an accident, not a crime.

California Criminal Defense Attorney

If you have been charged with destroying or concealing evidence in California - either as a standalone crime or in conjunction with an underlying offense - it is imperative that you fight this charge. If you are found innocent of the underlying crime but still found guilty of destroying evidence, you will still face fines and potentially jail time. This underscores the importance of fighting not only your "main" charge but the charges that now accompany it.

California criminal defense attorney Lynn Gorelick is equipped with over 30 years of experience representing criminal defendants in the state. She is prepared to fight your charges, defend your rights and protect your best interest in court. If you are confronting a charge for destroying evidence, immediately contact criminal defense attorney Lynn Gorelick for a free consultation on your case.