On Thu, 2 Aug 2001, Black Unicorn wrote:
This is the nexus of spoliation theory that bother me. Consider:
Retention policy is ok under Gumbs (but only in its limited scope discussed below) only when (under 29 Am. Jur. 2d) "the spoliation or destruction [of evidence] was intentional... it does not arise where the destruction was a matter of routine with no fraudulent intent." The only problem is that the standard for intent is overly broad in my view. Consider again Lopez v. Surchia 112 Cal.App.2d 314. "A person who acts willfully intends "those consequences which (a) represent the very purpose for which an act is done (regardless of the likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire)." Well, the other problem is that none of the judges seem to be reading or relying on the American Jurisprudence discussion, because that "desire to suppress the truth" language never seems to make into these cases.
This is a problem with the defence lawyers, not (just) the judges. 'willfully' and 'substantialy certain' are the bail-out phrases. Unless there is some proof that you intended to destroy the documents, not as a matter of policy, but as a matter of obfuscation then you're goose is cooked. If you're policy is 'never keep the records' or 'destroy all records in a timely fashion' (exempting legaly required documentation) then the charge is going to be a lot harder to make stick all by itself.
records if they are destroyed (under the second part of the Lopez test where consequences are "known to be substantially certain to result (regardless of desire)." You'd have to be of IQ < 70 to fail to make that conclusion.
The 'conclusion' actualy begs the question. The point you and the courts seem to be jumping right over isn't the 'spoliation' per se but rather the environment that indicates 'willful' and 'substantial certainty' in the consequences of those document destructions. It isn't the document destruction per se but rather your motive to destroy them to hide your crime.
A jury instruction that the destruction of evidence could be considered fraudulent is bad. An actual charge of spoliation or obstruction is worse.
Maybe not. At least with the charge real evidence must be presented. With the simple jury instruction a inference, without chance of rebut mind you, is made. This in effect pre-disposes the jury to consider you guilty. -- ____________________________________________________________________ Nature and Nature's laws lay hid in night: God said, "Let Tesla be", and all was light. B.A. Behrend The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------