Criminal evidence refers to any physical or verbal evidence that is presented for the purpose of proving a crime. Evidence can take many different forms, and may be introduced by the defendant in an effort to prove that they are not guilty. It is illegal to attempt to hide any of this evidence, an act known as spoliation of evidence, from the other side or from the authorities. Spoliation of evidence will be further discussed below. In any criminal trial, the burden is on the prosecution to prove that the defendant committed the crime.

Criminal evidence can be categorized as either verbal or physical. Examples of verbal evidence may include:

  • Confessions made by the defendant;
  • Testimony offered by witnesses, as well as expert witnesses;
  • Documents, such as a search warrant or other files; and
  • Spoken evidence obtained through a wiretap or other similar technology.

Physical evidence is tangible, and is generally presented as an exhibit. Examples include:

  • Weapons or other instruments used to commit a crime;
  • Illegal contraband such as drugs, drug money, and drug paraphernalia;
  • DNA, blood, or bodily samples;
  • Photographs or video footage;
  • Demonstrative evidence;
  • Footprints or other types of tracks; and
  • Scientific and forensic evidence.

All criminal evidence may be further classified as being either direct or circumstantial evidence. Direct evidence supplies the prosecution with information that is true “beyond a reasonable doubt.” An example of this would be a videotape showing the defendant injuring the victim.

Circumstantial evidence does not prove a theory, but rather suggests proof in support of the theory. An example of this would be a knife that fits the description of witness testimony.

What Is Fleeting Or Evanescent Evidence?

Fleeting or evanescent evidence refers to evidence that is at risk of being destroyed or disappearing, and cannot be easily reconstructed through demonstrative evidence. To reiterate, destroying this evidence is a crime in and of itself. Evanescent evidence is generally referred to in connection with warrantless searches; as such, the term is generally stated as “the evanescent evidence exception to the warrant requirement.”

Under most circumstances, the police need a search warrant before they can seize evidence of a crime. However, under the evanescent or fleeting evidence exception, police can seize evidence without a warrant if the evidence poses a risk of being lost. The intention is that the evanescent evidence must be seized immediately, and as such, the police do not have time to secure a formal warrant.

There is no set definition for what constitutes evanescent evidence. In general, it can include any item that must be obtained quickly before it is no longer available, such as physical and tangible objects as opposed to verbal testimony.

Some of the most common examples of fleeting or evanescent evidence include:

  • Drugs or drug paraphernalia that may be discarded or destroyed;
  • Food that may spoil or rot, for use as evidence in food poisoning cases;
  • Blood samples or blood marks that may evaporate;
  • Delicate substances such as DNA, hair, or skin samples; and
  • E-mails, text messages, or other electronic files that can be deleted quickly

It is important to note that evanescent evidence is generally associated with the suspect’s motives in tampering with the evidence. Evidence is more likely to be classified as evanescent if the suspect has demonstrated an intention to destroy, conceal, and/or dispose of the evidence. As such, even if the evidence is not subject to decay or destruction by its physical nature, it could be considered evanescent depending on how the suspect has treated it.

What Happens If The Police Illegally Seize My Property?

While police do not need a warrant in order to seize evanescent evidence, it is not uncommon for the police to make a mistake in identifying evidence. In order to proceed with a warrantless seizure, the police must have a reasonable belief that the evidence will be destroyed.

If you have been subject to an illegal warrantless search or seizure, you would need to prove that the police made an unreasonable search when taking your property. The likely remedy would be for the judge to exclude the evidence during trial; the evidence will be suppressed under the exclusionary rule, meaning that the prosecutor cannot use the evidence against the defendant in court.

In order for evidence to be admissible in court, the evidence must be logically relevant, material, and competent. Relevant means that it must have a reasonable tendency to help prove or disprove a fact. While the evidence does not have to make a fact certain, it must make a fact that is of consequence more or less probable than it would be without the evidence.

However, the evidence must be legally relevant. This means that the probative value of the evidence must not be substantially outweighed by the dangers of:

  • Unfair prejudice;
  • Confusion of jury;
  • Waste of time; and
  • Misleading the jury.

Rules such as the hearsay evidence rule prevent certain types of evidence from being admissible at trial. These rules are considerably stronger in criminal cases because the Constitution guarantees criminal defendants certain rights. However, most of these rules have exceptions, and are subject to change from state to state.

The following types of evidence are not permitted against criminal defendants:

  • Out of court testimony;
  • Character evidence, meaning that prosecutors cannot use evidence of a defendant’s personality to prove that the defendant committed the crime, unless the defendant raises the issue first;
  • Statements made during plea bargains cannot be used against the defendant at trial; and
  • Defendants have the right not to take the stand during trial, because the prosecutor’s cross examination could lead the defendant to incriminate themselves.

What Else Should I Know About Spoliation Of Evidence?

Hiding evidence can include any action that results in the:

  • Hiding;
  • Withholding;
  • Altering; and/or
  • Destruction of evidence relevant to the case. Essentially, any action that makes the evidence unavailable for legal proceedings may be considered spoliation of evidence.

In some jurisdictions, witness tampering can constitute spoliation of evidence. This includes:

  • Intimidating a witness;
  • Physically preventing them from testifying; and/or
  • Persuading them to alter their testimony.

Consequences for spoliation of evidence largely depend on your jurisdiction. An example of this would be if a relative of a defendant intentionally destroys the text messages exchanged with the defendant about a robbery the defendant committed. If, after a legal proceeding the relative’s guilt is established, they may be subject to fines or incarceration.

In other jurisdictions, the court may allow a negative inference based on the spoliation of evidence. What this means is that the fact that they attempted to spoil the evidence can be a sign of guilt. In the above example, the court may allow a negative evidentiary inference against the defendant based on the destruction of the texts. The negative inference is based on the theory that the spoliation of evidence shows guilt, because there was an attempt to hide the truth.

Some jurisdictions allow a separate tort action for spoliation of guilt. The penalty may be punitive in order to punish the defendant, or remedial in nature. For these specific types of torts, the evidence must be relevant to the complainant’s case. Additionally, the offending party’s actions must have been either deliberate or grossly negligent.

Do I Need A Lawyer For Help With Fleeting Or Evanescent Evidence?

It is imperative to remember that evidence that is illegally obtained by the police cannot be used in court. You should contact a criminal defense lawyer immediately in order to discuss your legal rights and options if you have been subject to a questionable search or seizure. An experienced attorney will also be able to represent you in court, as needed.