# When both possessing and destroying evidence are a crime: What to do? **URL:** \ **Category:** Factual Questions\ **Created:** [September 9, 2012, 5:29pm UTC](https://boards.straightdope.com/t/when-both-possessing-and-destroying-evidence-are-a-crime-what-to-do/634217 "2012-09-09T17:29:42Z")\ **Posts on this page:** 12\ **Page:** 2
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [September 9, 2012, 9:23pm UTC](https://boards.straightdope.com/t/when-both-possessing-and-destroying-evidence-are-a-crime-what-to-do/634217/21 "2012-09-09T21:23:00Z")
> [@DrCube](#): > > I didn’t “terminate my possession” of it even though I had sufficient time, because I wanted to turn it over to law enforcement as evidence. Turning it over to law enforcement constitutes terminating your possession, so “sufficient time” would apply to turning it in. ---
**Author:** ![boytyperanma](https://avatars.discourse-cdn.com/v4/letter/b/4491bb/32.png) [@boytyperanma](https://boards.straightdope.com/u/boytyperanma)\ **Post date:** [September 9, 2012, 9:43pm UTC](https://boards.straightdope.com/t/when-both-possessing-and-destroying-evidence-are-a-crime-what-to-do/634217/22 "2012-09-09T21:43:48Z")
> [@For You](#): > > If you inadvertently destroy evidence (“I failed to notice it on the tape”), you could not reasonably be held liable for destroying it. The police/courts have to be aware of the existence of the evidence before you can be cited for destroying it. > > Probably your best course would either be to ask a cop for advice in the matter (“Suppose my home surveillance camera recorded …”) or to package the content and get it to the authorities without identifying yourself. Don’t ever ask cops for legal advice. There are professionals who will work for you for a small fee that are experts in the law. The cops aren’t it. In this situation I’d arrange for an attorney to negotiate turning it over to the police. Your attorney can demand the DA absolve you of all crimes for possession provided you cooperate with the investigation. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [September 9, 2012, 9:51pm UTC](https://boards.straightdope.com/t/when-both-possessing-and-destroying-evidence-are-a-crime-what-to-do/634217/23 "2012-09-09T21:51:04Z")
> [@Muffin](#): > > Call the police and hand them the evidence. It really is that simple. > [@DrCube](#): > > From the article: (bolding mine) > > Also, as I understand it, possessing snuff films is not a crime. Possessing child porn IS, and it doesn’t matter why. If I film a murder, that film can be used as evidence against the murderer, and I’m only in trouble if it appears that I was an accessory to the murder. In the case of CP, it doesn’t matter whether I was an accessory to the crime or not. Merely possessing the evidence is a crime. Yeah, any prosecutor with brains won’t prosecute, but they can if they so choose, and I’ve still committed a crime by possessing the evidence whether they prosecute or not. Using your other example with the drugs. Let’s say you are walking your dog and you find a bag filled with white powder. You immediately call the police and tell them what you found. Do you think you will get arrested? If your answer is yes then there is no further need for discussion it just won’t get though to you. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [September 9, 2012, 10:44pm UTC](https://boards.straightdope.com/t/when-both-possessing-and-destroying-evidence-are-a-crime-what-to-do/634217/24 "2012-09-09T22:44:28Z")
Federal law: > [@](#): > > 18 USC § 2252 - Certain activities relating to material involving the sexual exploitation of minors > > (c) Affirmative Defense.— It shall be an affirmative defense to a charge of violating paragraph (4) of subsection (a) that the defendant— > (1) possessed less than three matters containing any visual depiction proscribed by that paragraph; and > (2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof— > (A) took reasonable steps to destroy each such visual depiction; or > (B) reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [September 9, 2012, 10:45pm UTC](https://boards.straightdope.com/t/when-both-possessing-and-destroying-evidence-are-a-crime-what-to-do/634217/25 "2012-09-09T22:45:35Z")
> [@Loach](#): > > Using your other example with the drugs. Let’s say you are walking your dog and you find a bag filled with white powder. You immediately call the police and tell them what you found. Do you think you will get arrested? If your answer is yes then there is no further need for discussion it just won’t get though to you. But if you are a British wildlife tourist guide in Central African Republic, who comes upon and reports finding eighteen bodies in the bush, well, then you’re fucked. (Fortunately, he’s been released.) [Legalbrief Today Home Page](http://www.legalbrief.co.za/article.php?story=2012082808140066) Glad I don’t live in a shithole like that. ---
**Author:** ![WhyWhyWhy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whywhywhy/32/7539_2.png) [@WhyWhyWhy](https://boards.straightdope.com/u/WhyWhyWhy)\ **Post date:** [September 10, 2012, 1:52am UTC](https://boards.straightdope.com/t/when-both-possessing-and-destroying-evidence-are-a-crime-what-to-do/634217/26 "2012-09-10T01:52:05Z")
> [@boytyperanma](#): > > Don’t ever ask cops for legal advice. There are professionals who will work for you for a small fee that are experts in the law. The cops aren’t it. > > In this situation I’d arrange for an attorney to negotiate turning it over to the police. Your attorney can demand the DA absolve you of all crimes for possession provided you cooperate with the investigation. Small fee!?! Cite? Don’t get involved with anyone that can cause problems for you. Unfortunately, that means the police, DA’s, anyone else. Never underestimate stupid. It isn’t worth it. Sad…but that is reality. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [September 10, 2012, 2:53am UTC](https://boards.straightdope.com/t/when-both-possessing-and-destroying-evidence-are-a-crime-what-to-do/634217/27 "2012-09-10T02:53:21Z")
> [@WhyWhyWhy](#): > > Small fee!?! Cite? > > Don’t get involved with anyone that can cause problems for you. Unfortunately, that means the police, DA’s, anyone else. Never underestimate stupid. It isn’t worth it. > > Sad…but that is reality. Not for most people it isn’t. ---
**Author:** ![Alley\_Dweller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alley_dweller/32/430_2.png) [@Alley\_Dweller](https://boards.straightdope.com/u/Alley_Dweller)\ **Post date:** [September 10, 2012, 3:27am UTC](https://boards.straightdope.com/t/when-both-possessing-and-destroying-evidence-are-a-crime-what-to-do/634217/28 "2012-09-10T03:27:44Z")
> [@Muffin](#): > > Turning it over to law enforcement constitutes terminating your possession, so “sufficient time” would apply to turning it in. OK. So let’s parse the law. “Possession is voluntary if the defendant knowingly procures or receives a film, videotape, or visual reproduction or depiction for a sufficient time to be able to terminate his or her possession.” So if I turn it in, that proves I had sufficient time to be able to terminate my possession. But the law says possession is voluntary if I knowingly received a film for a sufficient time to be able to terminate my possession. Since my possession was therefore voluntary, the exception in paragraph (5) does not apply and I am guilty of the crime. Seriously, what could the legislature possibly have been thinking when they put in that last sentence? Were they just trying to exempt people who had pornography that self-destructed after a microsecond? ---
**Author:** ![Nametag](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nametag/32/406_2.png) [@Nametag](https://boards.straightdope.com/u/Nametag)\ **Post date:** [September 10, 2012, 4:43am UTC](https://boards.straightdope.com/t/when-both-possessing-and-destroying-evidence-are-a-crime-what-to-do/634217/29 "2012-09-10T04:43:55Z")
I can’t believe anyone is taking the rantings of the founder of the Swedish Pirate Party seriously. First of all, there is no specific law addressed in the article; Falkvinge is Swedish, but mentions US law, and there are many jurisdictions with the US. Second, since you’ve decided to analyze what appears to be the Illinois Criminal Code, I’ll address that. “(5) The charge of child pornography does not apply to a person who does not voluntarily possess a film, videotape, or visual reproduction or depiction by computer in which child pornography is depicted. Possession is voluntary if the defendant knowingly procures or receives a film, videotape, or visual reproduction or depiction for a sufficient time to be able to terminate his or her possession.” Turning over the recording is terminating your possession. If you take no more than a reasonable amount of time to get to the police, that’s how long a “sufficient time” is. If you witness the crime, record it, and sit on it for two days, the DA still has discretion as to whether to charge you, but you’re going to have to answer some questions about why it took so long. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [September 10, 2012, 4:45am UTC](https://boards.straightdope.com/t/when-both-possessing-and-destroying-evidence-are-a-crime-what-to-do/634217/30 "2012-09-10T04:45:35Z")
> [@Alley\_Dweller](#): > > OK. So let’s parse the law. > > “Possession is voluntary if the defendant knowingly procures or receives a film, videotape, or visual reproduction or depiction for a sufficient time to be able to terminate his or her possession.” > > So if I turn it in, that proves I had sufficient time to be able to terminate my possession. > > But the law says possession is voluntary if I knowingly received a film for a sufficient time to be able to terminate my possession. > > Since my possession was therefore voluntary, the exception in paragraph (5) does not apply and I am guilty of the crime. > > Seriously, what could the legislature possibly have been thinking when they put in that last sentence? Were they just trying to exempt people who had pornography that self-destructed after a microsecond? It means if you have had sufficient time to get rid of it, but did not get rid of it, then you’re on the hook. ---
**Author:** ![TokyoBayer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tokyobayer/32/13989_2.png) [@TokyoBayer](https://boards.straightdope.com/u/TokyoBayer)\ **Post date:** [September 10, 2012, 4:46am UTC](https://boards.straightdope.com/t/when-both-possessing-and-destroying-evidence-are-a-crime-what-to-do/634217/31 "2012-09-10T04:46:47Z")
> [@DrCube](#): > > I did see that section, but perhaps I misinterpreted it. I don’t see how it applies in this case, because I knew what was depicted since I recorded it, and I didn’t “terminate my possession” of it even though I had sufficient time, because I wanted to turn it over to law enforcement as evidence. I must be missing something, but why wouldn’t you call the police the moment you saw a child being raped? If this were to happen as is given in the linked article, I see no reason to not call the police to report this, and you can tell the dispatcher you are recording this and what should you do? If you were to do that, dispatch is going to tell you to hold on to it until the police come. The problem I have with alarmist articles like this is that any good points they make are immediately lost because of the stupidity of their asinine ones. Sure, there always is a teeny, tiny chance that against overwhelming evidence to the contrary, that a prosecutor could press charges, but then there is also that teeny, tiny chance that the police are going to beak into your house at night and plant evidence. And if that happens, Clint will shoot you. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [September 10, 2012, 1:01pm UTC](https://boards.straightdope.com/t/when-both-possessing-and-destroying-evidence-are-a-crime-what-to-do/634217/32 "2012-09-10T13:01:25Z")
> [@](#): > > “(5) The charge of child pornography does not apply to a person who does not voluntarily possess a film, videotape, or visual reproduction or depiction by computer in which child pornography is depicted. Possession is voluntary if the defendant knowingly procures or receives a film, videotape, or visual reproduction or depiction for a sufficient time to be able to terminate his or her possession.” (IANAL) Knowingly in this case I assume means either you knew what was on the film when you received it, and did not dispose of it pretty fast; or when you discovered it, you did not dispose of it right away. Therefore the OP is wrong in scenario: if, when you discover the fact that you possess something that violates the law, you do not take steps to dispose of it. “Dispose of it” could mean destroy, or it could mean give it to the police if it is evidence of a crime. “Sufficient time to terminate possession” would mean, I assume, time to delete images that accidentally popped up on a browser; or time to wait for the police to arrive and take possession of the rape video. If you fail to act fast enough (wait a day? 12 hours?) and show no sign of “terminating possession”, then the “I didn’t voluntarily acquire it” defence fails. As for getting an allegedly clean DVD from scuzzy cousin Herbert, I guess we’re back to the classic “he said - he said” dilemma. It’s the word of you, upstanding citizen with no other material in your possession, against a convicted kiddie-porn maker. Better have a really good lawyer and a lot of character witnesses, I suppose. OTOH, if you destroy it when you realize what it was, you comply with the letter of the law… Unless you are a teacher or doctor, etc., and there is an affirmative requirement to report the details. [Previous page](https://boards.straightdope.com/t/when-both-possessing-and-destroying-evidence-are-a-crime-what-to-do/634217.md?page=1)