Are you guilty of tampering with evidence if you hide a morally dubious act which you didn't know for certain was a crime?

Question

Consider the following scenario:

• A person has some texts in which they say to a friend "yeah, I was riding way under the speed in that road to annoy people".
• This is a crime.
• They don't know whether it is a crime. They also don't care to look it up.
• They know it's a moral wrong, and it would make them look really bad if someone found out.
• As a result, they delete those texts, so to not get shamed in their social circle if this information ever leaks.
• Later, in a case where they are accused of such crime, it's found they've deleted these texts.

Can this person be charged with tampering with evidence?

Effectively, is there a plausible deniability argument of "ignorance" to be made for someone destroying evidence for actions they positively know are morally wrong, but don't positively know whether they would be a crime?

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Note: This differs from "Would I be risking being guilty of destruction of evidence any time I clear data off my computer?" because this is not an "innocent" action. The accused may not positively know whether it's a crime, but they might have a good suspicion (it is indeed, a morally dubious action).

So another way of phrasing would be: Are you required to check if your morally dubious action is a crime, if you suspect so, before destroying potentially incriminating evidence?

Answer 1

canada

In Canada, the closest path to liability for these acts is through s. 139(2) of the Criminal Code, known as "obstruction of justice."

However, to commit this offence, the person must be attempting "to obstruct, pervert or defeat the course of justice." They must be acting with an aim to obstruct, pervert, or defeat any actual, proposed, or contemplated judicial proceedings. See R. v. Spezzano, 1997 CanLII 1371 (ONCA).

It is not enough that the person acted to merely avoid moral criticism.

Answer 2

Depends

new-south-wales

Tampering with evidence requires:

• Knowing the texts are or may be required in a judicial proceeding,
• An intention to mislead that proceeding.

It is not necessary that the judicial proceeding has actually commenced, just that it is likely there will be one. For example, if the texts relate to the finding of a dead body, it is likely there will be a coronial inquest (a judicial proceeding) and the texts might be needed. In the circumstances you describe, it is unlikely there will be a judicial proceeding at all.

In any event, the prosecution must prove the intent to decieve.

Answer 3

(This answer is specific to the example given in the question)

In Washington State driving too slow is not a crime, it is a traffic infraction.

RCW 46.64.015 states in part:

"No person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law."

RCW 46.64.015 states in part:

"An officer may not serve or issue any traffic citation or notice for any offense or violation except either when the offense or violation is committed in his or her presence..."

Hearsay, allegations, emails, texts, etc. do not constitute grounds for prosecution of a traffic violation because the act must occur in the presence of the officer.

Also, traffic violations are categorized as a "strict liability" offense which means that the state doesn’t need to show that you had criminal intent for the court to find you guilty. All they need to do is show that you broke the law, and the testimony of the witnessing officer is sufficient and complete. While the state could compel you to turn over your phone, there would be no reason to do so.

Furthermore, in this case private texts would more properly be considered an admission, confession, or testimony revealing intent, rather than prima facie evidence of a crime. (or even evidence of a traffic violation...) Since the deleted texts do not consist of "evidence" in this context, there would be no reason for a charge of tampering.

ADDENDUM: Regarding your latest note: "Are you required to check if your morally dubious action is a crime, if you suspect so, before destroying potentially incriminating evidence?"

Consider another phrasing: Are you required to build a case against yourself for any and all "morally dubious" activities in order to assist with some possible future prosecution? (God forbid we should ever live in such a society...)

There is an element of chronology in play here: If you know you are under investigation or have actually been charged with a crime and subsequently destroy information, then there is a chance you could be charged with obstruction of justice, or tampering with or destroying evidence. Otherwise routine deletions of text messages, (or to avoid embarrassment...) would lack the element of intent to obstruct.

Answer 4

It depends on how the local jurisdiction defines the crime.

Most tampering statutes are going to be limited to acts done with a certain purpose or with a certain mental state. If your jurisdiction makes it a crime to destroy records only if you know that they are evidence of a crime, or only with a purpose to limit their use in a criminal proceeding, then what you're describing isn't a violation.

But if the statute criminalizes merely negligently destroying records that could be used as evidence, then what you're describing could be a violation.

Answer 5

Usually, you are not required to incriminate yourself. You may remain silent about your wrongdoings. Including not telling what you have written down for bragging purposes.

It is a strange world if we need to keep anything we write, in case it will be needed in court. Looks like an informal message to a friend, not a report or something one usually archives for posterity.

It is weak evidence too, as you can claim that text was a lie, a joke, very exaggerated, written by someone else, and so on.

Answer 6

In Sweden: potentially, yes

The act in the premise is not a crime in Sweden, it is a traffic infraction.

However, assuming that they are driving recklessly it now falls under the Traffic Crime Act (1951:649).

Can you then be convicted for "destroying" that text message?

Potentially, yes, by the Criminal Code (1962:700), chapter 17, paragraph 11, where destroying evidence that prevents the "discovery of" or "conviction for" a crime is "protection of a criminal".

However... the end of §11 states that if the crime that was hidden is "slight", then the act of deleting the message is — explicitly — not a crime.

Being a twit on the road, just to annoy, can potentially be considered "slight".

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And then there is the issue of actually proving this accessory crime. If the prosecutor does not have access to the texts, then they cannot prove anything incriminatory was deleted. And if they do have access to the texts, and can see that they were incriminating, then the accessory perp has by definition not hindered evidence from being used for conviction.

It becomes a rather narrow edge case where deletion of texts become such that it is actually possible to convict for it.