Spoliation of Evidence as Proof of Guilt or Liability
By David G. Wirtes Jr., and Andrew T. Citrin
What do you do if a defendant or his representative hides or destroys crucial evidence? You may be surprised by the remedies that are available under Alabama law for spoliation in civil cases. In fact, of all the jurisdictions in the United States, Alabama is recognized as the least tolerant of this misconduct.
This article discusses the law of spoliation in Alabama, the civil and criminal penalties for spoliation, and suggests strategies for the effective use of evidence ot spoliation in civil cases.
WHAT IS SPOLIATION?
The term "spoliation" simply means the actual or attempted destruction, suppression, or tampering with material evidence favorable to an adversary. The Alabama Supreme Court has repeatedly treated this type of misconduct as an implied admission of guilt or liability. This conclusion derives from the concept that only one with a a guilty mind would act to hide his wrongdoing. Evidence of spoliation is admissible at trial to the same degree as is evidence of a bank robber fleeing from the scene of the crime.
WHAT IS THE SPOLIATION INFERENCE?
The spoliation inference is a theory of guilt-consciousness.1 That is, one who destroys or suppresses evidence has something to hide. A spoliator destroys evidence because it would reveal his wrongdoing. Examples of spoliation include: altering records2, threatening witnesses to not testify3 and losing or destroying physical evidence4.
The offended party must submit circumstantial or direct evidence sufficient to support the inference that spoliation occurred5. When the facts are sufficient to support the inference of spoliation, the issue goes to the jury. If proven, the court may charge the jury that the spoliator's guilt (in criminal cases) or liability (in civil cases) may be inferred from the mere act of spoliation. Why? Because the act of spoliation is deemed an implied admission of guilt or liability6.
The timing of the act of spoliation may dictate whether the spoliation inference is appropriate. Some courts do not allow the inference if the destruction occurred before litigation.7 In Alabama, however, "proof may be made concerning a party purposefully and wrongfully destroying a document which he knew was supportive of the interest of his opponent, whether or not an action involving such interest was pending at the time of the destruction." Alabama's rule makes sense. One who believes litigation will arise is just as likely to resort to spoliation to hide his wrongdoing as is one who is involved in pending litigation8.
THE HISTORY OF THE SPOLIATION PRINCIPLE
The spoliation principle has been recognized for centuries. The legal maxim, "omnia praesumnuntur contra spoliatorem" means that all things are presumed against the wrongdoer9. As early as the seventeenth century, English courts permitted the opponent to invite the jury to draw an adverse inference from a client's spoliation of relevant evidence.10 Since then, courts have universally allowed factfinders to draw unfavorable inferences against litigants who destroy evidence relevant and material to legal disputes11 Cases from around the country confirm that engaging in spoliation is extremely risky business.12
Alabama has also long-recognized the principle of spoliation. Professor Gamble notes in McElroy's Alabama Evidence that:
"The general rule is that a party's attempt to suppress evidence is admissible against him. This suppression commonly comes in the form of threatening a witness that something terrible will happen to him if he testifies against the threatening party. It is also possible for there to be an attempt to suppress when the party communicates his threat against the witness through a third person. Perhaps the best statement of this last rule comes in the case of Haisten v. State [280 So.2d 209(Ala. 1973)] in which the court states:
'The cases cited above relate to threats addressed to witnesses, or potential witnesses, but it stands to reason that a calculated effort to unsettle the mind of a witness or the addressee, or both, and materially affect the action of a witness could ar times as well be made by a threat against the witness communicated to a third person, particularly one closely related to the witness...'
Testimony of the nature here being discussed is admissible as an implied admission of a party as to his guilt or negligence. Such is considered to be in the category of an implied admission from conduct. "13
In one of the Alabama Supreme Court's earlier opinions on spoliation, the principle was forcefully explained as follows: "
It is a rule of evidence, and is available when, as here, the circumstances and conditions on which it is rested are shown by the evidence, not conclusively, but so supported by the evidence as that the trier of the issue might reasonably find that the bases for the stated presumption or inference existed. When the bases for this unfavorable assumption or inference are established without dispute or to the reasonable satisfaction of the jury, the jury is authorized to presume or - infer that the instrument was duly executed, whatever the legal requirements to that end, and that the contents thereof was of a character and effect of the utmost favor to the spoliators adversary and of the utmost disfavor to the spoliators interest. The rubs inspiration is the result of the common experience and judgment that men will not ordinarily withhold or destroy evidence beneficial to themselves... The measure and quality of the evidence descriptive of the instrument necessary to afford the bases for a consideration of the rule, with the view to its application to the concrete case, are that there should be presented, by him whose right or interest is supposed to be prejudiced by the destruction of the instrument, evidence, of a general character, reasonably calculated to invite the conclusion that an instrument of the type in question existed and that it was purposefully destroyed or caused to be destroyed by his adversary. Strict proof of the contents of such an instrument, so destroyed, is not required, for if a higher degree of proof was exacted, the rule of the maxim would be without practical service."14
WHAT ARE THE NECESSARY ELEMENTS FOR THE SPOLIATION INFERENCE?
First, the party who asserts the inference has the burden of persuasion to establish that the evidence has in fact been destroyed, or at least that an attempt was made to do so. Under the historical consciousness of guilt theory, any actual or attempted destruction or tampering with the evidence may support an inference that the spoliator thought he was guilty of wrongdoing.15
Second, the destroyed matter must be relevant and material to the dispute.16 However, the victim must only show that there was a reasonable likelihood that the evidence would be relevant to the litigation for the burden to shift to the spoliator to prove that it was not relevant.
Third, the final element is that of the identity of the spoliator.17 The inference will only apply if the spoliator is a party to the litigation or an agent of a party who has been directed to act by another's guilty conscious.18
THE EFFECT OF THE INFERENCE
If counsel can prove an actual or attempted destruction of evidence or suspicious circumstances surrounding missing documents, the victim may be entitled to a jury instruction which allows the jury to infer the spoliator's guilt or wrongdoing (i.e., negligence) merely from the act of spoliation. For example, in Campbell v. Williams the Alabama Supreme Court recently approved the following jury instruction regarding the defendant's spoliation of evidence:
"Spoliation or an attempt to suppress material evidence by a party or parties to a suit favorable to the adversary is sufficient foundation for an inference of their guilt or negligence. The fact may be established by direct or circumstantial evidence and proof is sufficient if from the facts and circumstances adduced it can be reasonably inferred."19
This charge was given in the context of a medical malpractice case where the jury returned a verdict for $4 million. This charge was given after the evidence established that the primary defendant, Dr. William Campbell, had persuaded the emergency room physician, who was at the hospital when the plaintiff's decedent coded, to alter the medical records to reflect a series of events which would exculpate Dr. Campbell of any wrongdoing in connection with the plaintiff's death.
Some courts believe the only inference to be drawn from spoliation is that the destroyed records would not have provided affirmative evidence in favor of the spoliator.20 However, in Alabama, the spoliation inference is itself sufficient to justify a verdict against the spoliator.21
WHY IS THE SPOLIATION INFERENCE SO POWERFUL?
The proponent in civil litigation must satisfy the jury that his version of the facts is the correct version. Depending on the nature of the cause of action and relief sought, he must prove his case by "substantial" or "clear and convincing" evidence. However, with the spoliation inference, the attorney has a weapon which may allow him to circumvent those evidentiary burdens altogether. Civil liability may be legally sustainable upon direct or circumstantial evidence sufficient to support the mere inference that spoliation occurred.
For example, a victim of spoliation may prevail with his cause of action for negligence merely because of the fact that spoliation occurred. The jury is allowed to infer the spoliator's liability for the tort because of the spoliator's implied admission of such liability through his misconduct in engaging in actual or attempted spoliation.22
The spoliation inference is also a powerful tool in forcing recalcitrant parties to comply with reasonable discovery requests. As is shown infra, the trial court has a variety of discretionary sanctions available under Ala. Rules Civ. Proc., Rule 37 and Ala. Code § 12-1-7 to force compliance with discovery orders. If an argument can be fashioned that a party is failing or refusing to comply with discovery requests due to spoliation, the trial court can sanction the spoliator with anything ranging from a finding of civil contempt to entry of a default judgment.
WHEN IS THE EVIDENCE OF SPOLIATION ADMISSIBLE?
Assuming the evidence of spoliation is neither privileged nor prejudicial, it is admissible and may only be excluded if it falls under some other exclusionary rule.23
Spoliators often argue that admission of evidence of their misconduct is "unfairly prejudicial." However, this argument rarely prevails:
"In spite of [Federal Rule of Evidence] 403, the courts routinely admit consciousness ot liability or guilt evidence for the simple reason that it is highly relevant to show the client's belief that her case is weak."24
The spoliator may also argue that the inference of misconduct establishes bad character, and is therefore proscribed by the rules, since evidence of other crimes is not admissible to prove the character o a person "in order to show that he acted in conformity therewith.25 However, spoliation inference is not used to establish bad character. The inference is used for another purpose; it shows that the spoliator was conscious of his guilt. Thus, evidence of spoliation is not excludable on that basis.26
PUBLIC POLICY, THE CRIMINAL JUSTICE SYSTEM AND CIVIL SANCTIONS FOR SPOLIATION
a. Policy Reasons For Preventing Spoliation
Preserving evidence until trial promotes the goals of truthseeking, assuring each party an equal opportunity to a fair trial and an adjudication of disputes on - the merits.27 The faa finder should be presented evidence that will aid in resolving the dispute. This becomes impossible when relevant and material evidence has been concealed, tampered with, or destroyed. Spoliation of evidence causes trials to be something other than a search for the truth. In one case of spoliation, the court noted that the trial "accomplished little more than the adjudication of a hypothetical fact situation.28
Parties should have an equal right to seek justice. One familiar case expresses the principle of fairness in the discovery process. In Hickman v. Taylor, it was presumed by the Court that "[m]utual knowledge of all relevant facts gathered by both parties is essential to proper litigation."29
The Alabama Supreme Court has essentially characterized spoliation as obstructing justice. In American Life Insurance Co. v. Anderson, the court wrote:
"It should be observed that, in a civilized country, the rule of obstructing justice obtains. . .' Evidence that a party attempted to prevent a fair trial, as by the suppression or fabrication of evidence, is admissible to show that he is conscious of the weakness of his case.'... The rule in this jurisdiction is best stated by Mr. Justice Bouldin in Drummond v. Drummond, 212 Ala. 242, 102 So. 1 12, 1 14 as follows: "Any effort by a party to intimidate a witness, to create bias or prejudice in his mind against the other side, or to suppress testimony, may k used as evidence against such party. The inquiry is not its effect on the witness and his testimony, but its probative force against the party r sorting to such means to affect his ends. Such facts often work the undoing of the party guilty of such practice. It indicates, not a seeking after justice, but an effort to poison the stream of justice. The reaction is a poison to the cause of him who seeks to use it."30
In short. the integrity of the judicial process is served by punishing the wrongdoer when it occurs.
b. Criminal Statutes Favoring a Method of Control
Alabama's public policy is obviously that spoliation will not be tolerated -- in fact. our legislature determined that spoliation will be treated as a crime. Ala.
Code §13A-10-129 states:
(a) A person commits the crime of tampering with physical evidence if, believing that an official proceeding is pending or may be instituted, and acting without legal right or authority, he "
(1) Destroys, mutilates, conceals, removes or alters physical evidence with intent to impair ItS use, verity or availability in the pending or prospective official proceeding or "
(2) Knowingly makes, presents or offers any false physical evidence with intent that it be introduced in the pending or prospective official proceeding.
"(b) Physical evidence, as used in this section includes any article, object, document record or other thing of physical substance.
"(c) Tampering with physical evidence is a Class A misdemeanor."
Depending on the type of spoliation, additional penalties may be found in other sections of the Code. For example, alteration of documents intended to be used in court falls under Ala. Code 51 3A-9-4, forgery in the third degree:
"(a) A person commits the crime of forgery in the third degree if, with intent to defraud, he falsely makes, completes or alters a written instrument.
(b) Forgery in the third degree is a Class A misdemeanor."
Thus, spoliation may amount to crimes punishable as Class A misdemeanors.31 it No jury will look favorably upon a civil litigant who commits a crime to avoid monetary liability.
c. Civil Sanctions
The typical remedies for evidence destruction in civil cases are the discovery sanctions provided for by Ala.R.Civ. Proc., Rule 37. Rule 37 provides trial courts with broad discretion to fashion remedies commensurate with the misconduct such as exclusion of evidence and dismissal.32 In fact, the Alabama Supreme Court has expressly sanctioned the use of entry of a default judgment against a party which allows spoliation to occur,33 and has consistently protected the trial courts' "broad and considerable discretion in controlling the discovery process" and "the power to manage their affairs in order to ensure the orderly and expeditious disposition of cases."34 Even if the reviewing court later determines that the trial court abused its discretion, the handling of the discovery abuse by the trial court will not be interfered with unless there is also a showing that the chosen sanction "resulted in substantial harm" to the offender.35
Still further, a trial court has plenary authority to compel obedience with its orders. Ala. Code ~ 12-1-7 provides:
"Every court shall have power: "
(1) To preserve and enforce order in its immediate presence and as near thereto as is necessary to prevent interruption, disturbance or hindrance to its proceedings; "
(2) To enforce order before a person or body empowered to conduct a Judicial investigation under its authority; "
(3) To compel obedience to its judgments, orders and process and to orders of a judge out of court, in an action or proceeding therein; "
(4) To control, in furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it in every matter appertaining thereto. . . " Under this statute, a trial court is empowered to fashion whatever remedy it, in its discretion, deems appropriate. Appellate review of such an order is limited to whether that discretion was abused or whether the order (whatever it might be) was plainly and palpably wrong. 36
ADDITIONAL ALABAMA SPOLIATION CASES
Alabama's history of allowing the spoliation inference to go to the jury should warn parties involved in present ,or foreseeable litigation that spoliation of evidence will not be tolerated. Numerous additional Alabama Supreme Court decisions support this view.
In May v. Moore, a medical malpractice case, the jury was instructed that it could infer that the doctor was guilty of negligence in treating plaintiff's deceased infant son during and following birth because the medical charts of the patient were "lost" along with charts of other patients treated by this same doctor.37 The inference of the doctor's liability for negligence was supported by the "loss" of the evidence. The Alabama Supreme Court affirmed the trial court's denial of the defendant doctor's motion in limine on the subject of the missing hospital records. The judgment awarding damages against the doctor was affirmed.
Another decision recognizing the spoliation inference is Street v. Street.38 There, the Court affirmed the trial court's judgment for contestants in a will contest case. The testator left everything to the proponent and the contestants alleged that this was not the last will of the testator. The proponent, who had knowledge of a prior 1938 or 1939 will, failed to produce this document after requests had been made for its production. This will was different in material respects from the one offered for probate. The court let the jury decide whether the proponent was responsible for the failure to produce, loss or destruction of the missing evidence.
In Southern Home Ins. Co. of The Carolinas v. Boatright, the Alabama Supreme Court reversed a circuit court judgment for the plaintiff-policyholder, in an action on a policy of fire insurance. The Court ruled that the insurer should have been allowed to show that the policyholder offered money to a witness, whose testimony would be damaging to his case, to remain away from the trial. The testimony would have connected the plaintiff with a "conspiracy to defraud," or the intentional burning of his house to collect insurance proceeds.39
In Drummond v. Drummond, the Court affirmed the circuit court's judgment in favor of the plaintiff for the wrongful death of his intestate.40 A witness for the plaintiff. who was the only eyewitness to all or part of the deadly shooting, was threatened by a third party. The Court had to decide whether to allow this attempt by a friend of the decedent to prejudice the witness as evidence against the plaintiff bringing the wrongful death action. This outsider was neither a party to the litigation, nor an agent of the plaintiff. The plaintiff and his counsel had no knowledge of the attempted intimidation of the witness. Accordingly, this evidence of purported spoliation was properly excluded.
In McCleery v. McCleery,41 the plaintiff claimed title through a conveyance of property made to him by his parents in 1903, while the defendant (plaintiff's brother) claimed tide through a conveyance made to him through their mother. Plaintiff's evidence tended to show that the conveyance sustaining his action was in the form of a deed, and had been delivered to him, and that he was named as trustee therein. However, this instrument was never presented to the trial court. Instead, it appeared the instrument was purposefully destroyed by the defendant brother. On appeal, the Court concluded that the evidence warranted an inference that the contents of the destroyed instrument could not support a verdict in the favor of the spoliator. Accordingly, the judgment for the defendant was reversed.
In Exparte Bettis42 the Alabama Supreme Court recognized that concealment of a letter by the attorneys for the defendant physicians was a type of spoliation capable of sustaining the inference of the physicians' guilt. Numerous discovery requests had been made by plaintiff including a request for production of documents. It was not until a later deposition taken by plaintiffs that two pieces of evidence were inadvertently produced. One was a letter from defendant physicians to their medical insurance carrier and the other was a draft of an autopsy report. The letter was damaging tO the defendants' case as it stated that the report could do damage to their case and that the defendants' attorneys hoped they could keep opposing counsel from gaining possession of the report.
The Alabama Supreme Court ruled that because none of the defendant doctors knew of this report, or were involved in its concealment, the letter would not be admissible against them. The opinion stands for the proposition that a client is not bound by his attorney's acts of spoliation unless he is aware of, directs, or approves of the spoliation. The Court ruled that the letter was not admissible at trial.
THE POWER AND UTILITY OF THE SPOLIATION INFERENCE
The spoliation inference is a powerful tool in civil litigation. Juries respond very unfavorably to people who lie or cheat in connection with a criminal or civil matter. This is exactly the type of misconduct the spoliation inference brings into a case. An appropriate jury charge tells the jurors that they are fully able to consider the spoliator's misconduct when deciding liability. This evidence probably weighs heavily when those same jurors determine the amount of damages to award. In fact, spoliation has been expressly recognized by the Alabama Supreme Court as one factor authorizing a large punitive damages award.43
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