Destroying Evidence

This is a few days old, but it just penetrated the bone around my brain. The subpoena in the Jersey bridge scandal is asking some of Christie’s aides for their personal cell phones and other comm devices:

http://www.bloomberg.com/news/2014-01-18/christie-campaign-subpoenaed-as-n-j-bridge-probe-widens.html
“Samson’s subpoena asks for all communications, including text messages, notes and documents between Sept. 1 and the present regarding the lane closures, along with all video and audio recordings and voice mails. It also asks for him to produce all calendars and day planners, and to hand over all smartphones, mobile phones, tablets and other similar devices he used, whether business or personal.”

My question is, if they destroyed their personal records after the scandal broke, knowing they would likely be questioned but before they were formally instructed to preserve evidence, did they commit a crime?

Do different laws regarding evidence tampering or destruction apply to

a) purely personal communications, i.e. talking about the scandal with your wife on your personal phones
b) communications on your personal cell phone with other state employees
c) communications on office phones or computers?

There are some requirements that certain businesses and other organizations maintain emails, so destroying those might be a crime.

I would imagine that destroying information sought by law enforcement authorities would be a crime in most jurisdictions. I’d imagine (I imagine a lot) that many of Christi’s Cronies ™ would, like their capo, be lawyers, fully in the know on this. It might get them in deep trouble with their bar associations too. But it also seems to me that there might be a phone company record of such messages thus leading to the “I deleted it but didn’t intend to destroy all copies, I assumed the phone company had copies”. FWIW I don’t text, and when someone sends me a text I delete it as soon as possible, I don’t save them. Same with voice mail. Once dealt with, I delete them.

I think the answer is a qualified “yes,” but the government would need to prove intent, i.e. they would need to prove to a jury’s satisfaction that you deleted the texts because you knew they were, or could become, the subject of an investigation into a crime. Presumably you would argue you delete all texts as a matter of course, or deleted these accidentally, or to make space on your device, et cetera, and then the jury gets to decide who to believe.

Note that you need not volunteer the existence of the texts during a general interrogation, and if asked specifically about their existence and content you may decline to answer – both acts are protected by the Fifth Amendment. But if the government can get a search warrant they can seize your phone and search for the texts themselves. They can also subpoena them from anyone with whom you’ve shared them (e.g. the receiver) who isn’t a suspect.

The frontier in this sordid area appears to be what happens if you’ve encrypted the texts. If the government has a valid warrant, can they force you to decrypt the texts? The Supreme Court hasn’t yet said, and the lower courts haven’t agreed. As far as I can tell, the most prevalent idea is that if an essential element of the case against you that has not yet been proven is that you know the content of the texts, then the government cannot compel you to decrypt them, because you would be testifying (against yourself) that you knew the content. But if the government already knows you know what’s in the texts – because, for example, you confessed you encrypted them – then they can compel you to decrypt them, because your knowledge of the content of the texts is a “foregone conclusion.”

It appears the logic is that the Fifth Amendment only protects you from being compelled to reveal information that is (1) in your mind and (2) incriminating. The decryption passphrase is in your mind, but it isn’t incriminating all by itself, unless your knowledge of or authorship of the encrypted data is in question. The contents of the encrypted data may very well be incriminating, but it isn’t in your head.

Sometimes, as a lawyer, you just have to ask for certain things to be thorough and to show the court you did, in fact, ask for it. But in reality you’re asking for things that you know any prudent, semi-intelligent person would have already deleted or would destroy right now before turning it over, certain that there’s no way anyone could ever show they did so.

I’ve often sent a subpoena for something and thought to myself “rules aside, what person would ever actually turn something like this over, if in fact it exists and they have sole possession of it?” And sure enough, i’ve never once received such a thing from the other side.

It’s just naive to think the other side is going to give you the smoking gun because you subpoenaed it. Maybe they don’t know what the smoking gun is, maybe it’s buried in 500 boxes of pages, but if they can delete it without leaving evidence of the act, it seems ridiculous to think that they won’t do so. Seems ridiculous to think they’d knowingly give their own lawyers such a smoking gun.

The most prominent cases involving password to decrypt…
In one case, the fellow’s computer was viewed by border guards and illegal images were seen on it. It was shut down, and when they went to get the images again, they found they needed to decrypt the files.
In the other case, the encrypted partition had files pertaining to the woman’s illegal activities as an accountant. The police had wiretaps of her telling her husband “the report of X that they need is safely encrypted on that disk.”

In both cases, the authorities knew what they were after. They had specific knowledge of specific items and were demanding that the evidence be turned over. That is something (outside of passwords) the court can do. “You have your tax return for 2007? Hand it over”. they don’t care if it is paper, microfilm, or bytes. They don’t care if it is in your files, or you wrapped it in plastic and buried it in the north 40. You hand over what you have.

This issue gets more complex when you get into mechanism. If they can ask you for a password, and then peruse the complete contents of the drive, at what point is it a fishing expedition? “We were looking for tax fraud on the disk, but by going through 10,000 photos we found 5 that were of his grow-op, so we want warrants to look at the following building…”

There’s the “plain sight” rule for evidence. If the police search you house with a warrant, and the drugs are right there on the coffee table, they can seize those and charge you too. However, if the warrant says “looking for guns and ammo” they cannot take or rifle through your papers looking for tax fraud; since a gun would obviously not be in a file folder full of papers.

So how deeply into your files can the police look once they have access to your computer? That’s a specific question AFAIK the SCOTUS has not yet addressed, except in a peripheral way in analogous cases. Someday they’ll answer these sorts of questions that are key to 20th century life.

As for destruction of evidence… As C Pham points out, the trick is to prove intent. Did you specifically destroy these record knowing the police would be wanting them? If you destroy all communication as a matter of course, that’s hard to prove. If the only glaring holes in your files are the ones related to this case, the DA’s job got a lot easier. If the disk wipe program was downloaded and installed the day after the investigation was announced, more evidence.

Recall that Martha Stewart was not convicted of insider trading. She was convicted of obstruction and destroying evidence. When she found there was an investigation, she deleted the entry about the phone call from her computer log. After she thought about it for a while, she changed her mind and retyped the entry. That deletion was good for a conviction. IIRC, she did this in front of her secretary, so basically it was kind of difficult to deny it happened. (The feds thoughtfully threatened if she didn’t roll over and take the plea, they would also charge and so destroy the lives of a bunch of mid-level low paid flunkies who could not afford good lawyers - her secretary, the stockbroker’s assistant, etc.).

I would think that it would make a difference based on whether the personal records were destroyed before or after there was a court ordered warrant to turn over the records.

You destroyed your personal records before we could subpoena them. So what? I clean out my personal records on a semi-irregular basis. If I knew you wanted them, I would have saved them for you. We don’t believe you. But can you prove it beyond a reasonable doubt?

The SA could charge for obstruction but the prosecutor would still have to prove there was an intention to destroy incriminating evidence.

Because of this, as I understand it, as a practical matter most search warrants also specify that they’re looking for money, or relevant paperwork, in addition to the drugs or guns or whatever it is that they’re primarily looking for, thus giving the police a legitimate reason to look through file folders and the like.