Spoliation is defined as “the intentional destruction, mutilation, alteration, or concealment of evidence.” In practice, however, the definition of spoliation has been expanded to include the unintentional—and even negligent—destruction of evidence. Courts have expanded the definition because they recognize that lost or destroyed physical evidence is often the “most eloquent impartial ‘witness’ to what really occurred ….”
For that reason, pursuant to the Federal Rules of Civil Procedure and the courts’ inherent power and authority to control litigation, the courts need not find that the spoliator acted in bad faith before imposing sanctions, especially in criminal cases. Rather, courts should only consider evidence of bad faith in determining the severity of sanctions.
Courts have recognized that it is incredibly unfair to the party seeking the evidence to allow the spoliators to destroy evidence and then benefit from their conduct. Not surprisingly, the judiciary’s abhorrence of spoliation is very well established. In fact, courts confronted the issue of spoliation as early as 1722.
In Armory v. Delamirie, an English court elucidated the doctrine of spoliation for the first time when “the court allowed the plaintiff to bring an action in trover against a jeweler who had spoliated a jewel.” In sanctioning the spoliator, the judge instructed the jury that “unless the defendant produced the jewel and was able to prove its low quality, the jury was to presume the jewel was of the finest quality and damages should be determined accordingly.” In so doing, the judge there established the spoliation doctrine that has guided many subsequent evidentiary decisions. Unfortunately, many of the more recent evidentiary decisions in the United States regarding spoliatated evidence deviate from the spirit of this early decision. Specifically, a majority of jurisdictions hold that spoliators of evidence need not be sanctioned unless the party seeking the evidence can demonstrate that the spoliator(s) acted in bad faith in failing to preserve the evidence in question.
18 U.S. Code § 1519 - Destruction, alteration, or falsification of records in Federal investigations and bankruptcy
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
(Added Pub. L. 107–204, title VIII, § 802(a), July 30, 2002, 116 Stat. 800.)