Tampering with Evidence

Generally speaking, you should not mess with anything that may be used in an investigation. Committing this offense can double the penalty of your original charges in many situations. Georgia’s definition of Tampering with Evidence is brief:

O.C.G.A. § 16-10-94(a). Tampering with evidence: “A person commits the offense of tampering with evidence when, with the intent to prevent the apprehension or cause the wrongful apprehension of any person or to obstruct the prosecution or defense of any person, he knowingly destroys, alters, conceals, or disguises physical evidence or makes, devises, prepares, or plants false evidence.”

Boiled down, the crime is essentially to manipulate or fabricate evidence to be used for a prosecution.

There is an incredibly important word however: intent. The burden is always on the prosecution to prove or convince the court that an offense has been committed. Certain statutes however, such as this one, additionally require the prosecutor to prove or convince the court of the accused’s mind state (or mens rea). This means that if you are charged with this crime, there is already a built-in defense that whatever action is in question was done without knowing that it would affect an investigation.

Punishments

The punishments for Tampering with Evidence are found in the same statute under O.C.G.A. § 16-10-94(c). This punishment is an interesting one.

Basically, the punishment for this statute is a misdemeanor if you interfere with a misdemeanor investigation, and a felony if you interfere with a felony investigation. For felony charges, there is a 1-3 year prison sentence increased to 1-10 years if the investigation was around a violent felony. Here is the official language:

Except as otherwise provided in this subsection, any person who violates subsection (a) of this Code section involving the prosecution or defense of a felony and involving another person shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than three years; provided, however, that any person who violates subsection (a) of this Code section involving the prosecution or defense of a serious violent felony as defined in subsection (a) of Code Section 17-10-6.1 and involving another person shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than ten years. Except as otherwise provided in this subsection, any person who violates subsection (a) of this Code section involving the prosecution or defense of a misdemeanor shall be guilty of a misdemeanor.

Defenses

No Intent to Interfere. For any mens rea based statute, the first thing we want to look at is what, if any, evidence the prosecutor intends to use to attempt to show that you intended to interfere with the evidence. For example, if you moved a gun that may be used for an investigation, the prosecutor has to prove that the reason you moved the gun explicitly for the purpose of interfering with the investigation. Unless you did something like record yourself saying “I hereby move this gun to interfere with x investigation”, there is almost always going to be room to cast doubt that interference was your intent and that you didn’t just happen to be moving the gun to pick up around your house and thought it would be no issue.

Lack of Knowledge. Before you can intend to move an item that will be used for evidence, you have to first be aware that it is evidence. While this may be difficult for a gun, there are instances in which we can cast doubt on the knowledge. One example may be deleting certain emails that the prosecutor could use in a case.

Case Law

In English V. State, Richard English was accused of Criminal Trespass and Tampering with Evidence. In November 2004, the victim’s daughter’s window appeared damage and he suspected that somebody had been peeping in his daughter’s window.  reported that she had been seeing flashes of light outside of her window. In an effort to detect the offender, the victim placed a motion sensor camera outside of the window. On a later night, the victim’s daughter reported to her father that she saw flashes of light outside of her window. The victim immediately went outside to investigate and discovered that the camera had been moved from its position on top of the porch railing and leading away from the house. The victim had the film from the camera developed on the following day.

The photos depicted a man standing between the bushes next to the daughter’s window; the same man getting tangled in fishing line; and the man then grabbing the camera from its mounted location. The man was unable to successfully take the camera because it had been chained to the post. The man in the photos was later identified by neighbors as Richard English. English admitted being present on the victim’s property on the night in question, but claimed that he had been chasing his cat and was startled by the camera’s flash.

The appellate court’s line of reasoning as to how they reached their conclusion is long and winding, but ultimately after reviewing the punishment section of the statute they decided “We must interpret the language ‘involving another person’ as imposing felony punishment when the person commits the tampering offense involving the prosecution or defense of a third person… The state has not presented any allegations or evidence indicating that English committed the tampering offense to prevent the apprehension or prosecution of anyone other than himself. Consequently, there is no evidence to support the imposition of a felony sentence under the sentencing provisions. Rather, the trial court was required to impose misdemeanor punishment, not to exceed a 1,000 fine and/or 12 months imprisonment, for English’s attempted tampering with evidence offense… Since the trial court’s felony sentence in this case was not authorized by law, it is void. Thus, we are bound to reverse and to remand this case.”

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