Truth and Uncertainty: Legal Control of the Destruction of Evidence

110 Pages Posted: 26 Sep 2012

See all articles by Lawrence B. Solum

Lawrence B. Solum

University of Virginia School of Law

Stephen J. Marzen

affiliation not provided to SSRN

Date Written: July 26, 2012


This article analyzes legal controls on evidence destruction in more or less six parts. Part I describes the rich variety of authority to control evidence destruction. In civil cases, the spoliation inference, discovery sanctions, tort liability, and criminal obstruction of justice statutes provide sanctions against destruction of evidence. In criminal cases, defendants face fines and imprisonment from federal and state evidence destruction and contempt statutes. Also in criminal cases, prosecutors who destroy exculpatory 1086 evidence risk dismissal of indictments under the process clause, the Jencks Act, Federal Rule of Criminal Procedure 16, and court's supervisory power. In addition, attorneys may breach professional standards if they participate in destruction of evidence or advise their clients to do so.

Part II discusses policy considerations weighing for and against control of evidence desctruction. It concludes that strict controls being developed by many courts are justified. In particular, truth and fairness to litigants support restrictions on evidence destruction even though the inefficiency of wide-ranging document preservation and concern for individual rights and privacy suggest boundaries beyond which destruction of evidence should not be controlled.

Parts III and IV develop the attainable objectives for legal controls on evidence destruction. Part III assumes that the legal system seeks only to restore the accuracy of individual legal proceedings. It points out the difficulty of decisionmaking under uncertainty and examines the conceptions of truth which underlie judicial thinking about destruction of evidence.

Part IV explains that legal controls on evidence destruction not only can restore accuracy but can compensate victims and punish evidence destruction. Examples from spoliation doctrine, civil discovery sanctions, and prosecutorial destruction of evidence illustrate the differing results to which the functions of accuracy, compensation, and punishment can lead.

Parts V and VI integrate doctrines and functions. Part V reviews routine document destruction programs and concludes that they should not insulate spoliators from legal controls otherwise applicable to destruction of evidence.

Part VI argues that the doctrinal isolationism characterizing development of evidence destruction doctrines in the past should end and that courts should begin the reasoned elaboration of a coherent legal approach to destruction of evidence.

Keywords: evidence, destruction of evidence, spoliation, discovery, obstruction of justice, tampering, uncertainty, decision theory

Suggested Citation

Solum, Lawrence B. and Marzen, Stephen J., Truth and Uncertainty: Legal Control of the Destruction of Evidence (July 26, 2012). Emory Law Journal, Vol. 36, 1086, 1987, Available at SSRN:

Lawrence B. Solum (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
(434) 924-7932 (Phone)

HOME PAGE: http://

Stephen J. Marzen

affiliation not provided to SSRN ( email )

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