Spoliation

Spoliation is the destruction, alteration, or failure to preserve evidence for use in ongoing or foreseeable future court cases. In civil procedure, specific sanctions for spoliation exist. Spoliation in criminal cases is murkier but can have adverse outcomes on the case. It is important for a digital forensics investigator to avoid spoliation by following good forensic practices. Moreover, it is equally important to uphold ethical obligations incumbent upon a forensics professional.

Video Lecture

Definition

“Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” (West v. Goodyear, 1999) While intentional spoliation is inherently unethical and is to be avoided, it is equally important to avoid unintentional (negligent) spoliation. The party causing spoliation is called the spoliator.

Effects on Cases

In the United States of America, the effects of spoliation on civil cases are easier to describe in comparison to criminal cases.

Civil Cases

In state-level civil cases involving spoliation, the spoliator is typically sanctioned, with sanctions varying by state.¹ Spoliation of electronically stored information (the type normally subject to a digital forensics investigation) also results in sanctions in federal civil cases, per Federal Rules of Civil Procedure 37. In federal civil cases, negligent spoliation results in prejudice against the spoliator. Intentional spoliation results in a presumption that the evidence was unfavorable to the spoliator and may result in a default judgment in favor of the opposite party.²

Criminal Cases

Although federal rules pertaining to spoliation exist for civil procedure, the situation in criminal procedure depends on various court precedents. In Brady v. Maryland (1963), the United States Supreme Court ruled that “[s]uppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”³ Since the prosecution has a responsibility to disclose “Brady” evidence to the defense, the spoliation of such evidence by a forensic investigator working on behalf of the prosecution could result in suppression of the evidence.

However, the Supreme Court ruled in Arizona v. Youngblood (1988) that “[u]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”⁴ Several of the justices dissented in this opinion, which reinstated Youngblood’s conviction for sexually assaulting a minor. The dissenting justices noted that Youngblood “by what may have been nothing more than police ineptitude, was denied the opportunity to present a full defense.”⁵

The legal arguments in the Youngblood case centered around whether or not the defendant’s rights were violated by the failure of the police and prosecution to preserve DNA on clothing in the case by refrigerating or freezing it. The majority held that “[t]he police do not have a constitutional duty to perform any particular tests”⁶ on evidence and therefore cannot be required to preserve it for later testing. However, the dissenting minority noted that the police did preserve one piece of evidence in the case, and the non-preserved clothing “likely would not tax available storage space.”⁷

As it happens, Youngblood was not one of the Supreme Court’s better decisions. In 2000, with assistance from the Innocence Project, the police re-tested the improperly stored evidence using DNA profiling technology that was not available in 1988. These tests not only revealed that Larry Youngblood did not commit the original crime, but they also matched another known offender who was subsequently convicted for the sexual assault.⁸

Due to the limited case law and lack of federal rules for spoliation in criminal cases, even federal judges sometimes have to improvise. In United States v. Suarez, a New Jersey district court applied civil procedure rules in a criminal case after the FBI failed to preserve text messages that may have been useful to the defense. The jury in this case was given adverse inference instructions regarding the missing text messages, meaning that the jury could infer that the FBI was hiding something.⁹ While this ruling at the district court level doesn’t set precedent, it does raise some interesting questions about how future courts will handle the spoliation of digital evidence. Unlike the circumstances in Youngblood, digital evidence requires no special storage conditions. A computer system capable of storing the electronic case documents used in today’s courts is also capable of storing the associated digital evidence.

Even if spoliation occurs in good faith, the trial judge might still suppress (disqualify) the forensic evidence or permit an adverse inference. The defense might also be able to raise issues of reasonable doubt pertaining to the quality of the investigation, leading to an acquittal. If a conviction is secured in spite of spoliation, questions about the evidence may lead to a finding of reversible error by an appellate or supreme court, overturning the conviction. Finally, sooner or later SCOTUS may reverse themselves in the Youngblood case, at least for digital evidence with its relatively low storage cost. The moral of the story is that spoliation must be prevented in both civil and criminal cases.

Avoiding Spoliation

The first step in avoiding spoliation of digital forensic evidence is to minimize the potential that the original devices containing the evidence are changed in any way. Limit analysis of persistent storage devices to an exterior inspection for damage, condition, identification, and other visible properties. Obtain a forensically sound bitstream image of the storage device and record its cryptographic hash. Do all analysis work on the image and secure the original device back into evidence storage. After completing the analysis, re-hash the image, and verify that the image fingerprint has not changed.

As a forensic examiner, your exposure to the evidence may not occur until the evidence is already in your laboratory. Spoliation may have already occurred somewhere in the previous chain of custody, in which case it will not be possible to conduct a proper forensic investigation. This particular issue might be avoidable if you are able to collect the evidence in the field; however, in such a case, follow the appropriate NIJ guidance for scene procedures and ensure that proper chain of custody procedures are followed thereafter.

Ethical Considerations

Generally speaking, your ethical duty as a forensic investigator is to the party in the case that retained your services. If you are working as a forensic examiner in a criminal case, remember that the prosecutor has an ethical and legal duty to disclose any exculpatory evidence to the defense. If you know that the prosecutor is not doing this, or if the prosecutor is pressuring you to conceal, delete, or otherwise alter evidence, you have an ethical duty to report the prosecutor’s conduct (generally to the court having jurisdiction in the case), even if the defendant appears guilty. Fabrication or outright manipulation of the evidence is unethical (and normally a criminal act), no matter how guilty you think the defendant is.

If you are retained by the defense in a criminal case, you have an ethical duty to the defendant, regardless of how sleazy the defendant may be. You must look for any weaknesses in the prosecution’s forensic analysis and check for spoliation of the evidence. In all cases, civil and criminal, it is unethical to spoliate evidence intentionally. Remember that our adversarial system of justice depends on both sides upholding their ethical obligations.

Notes and References

Further Reading

• West v. Goodyear Tire and Rubber Co., 1999. United States Court of Appeals, 2nd Circuit. Available from Leagle.
• Michael A. Zuckerman. “Yes, I Destroyed the Evidence – Sue Me? Intentional Spoliation of Evidence in Illinois.” John Marshall Journal of Computer and Information Law 27(2), 2009. Available from the University of Illinois Chicago.

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