Evidentiary support is an integral part of the prosecution process. Evidence can be physical, circumstantial, anecdotal, digital, forensic, or part of many other categories.

This article will specifically address physical evidence, which refers to a real, material object that has a role in a matter that led to litigation. Attempting to change or conceal it, knowing that it will be used or can be used in a proceeding, is prosecutable and can lead to a lot of trouble.

Examples

For a quick preview, examples of situations in which these evidence tampering charges can be filed include:

1. Washing a piece of clothing that was worn during an alleged crime
2. Switching a glass with fingerprints or DNA traces for a different one
3. Forcing someone to shred a letter with incriminating information

We will need to delve into the specifics of the statute in order to understand how these actions are derived from it.

The Federal Statute for the Tampering of Physical Evidence

Statute 215.40 defines the legal definition of physical evidence tampering in part as “knowingly making, devising or preparing false physical evidence”, “producing or offering such

evidence” and “believing that certain physical evidence is about to be produced or used in an official proceeding or prospective proceeding and intending to prevent such production” (edited for grammar).

In layman’s terms, this describes creating false physical evidence, submitting false physical evidence, or changing physical evidence before it can be used in a legal proceeding, including through the forcing of someone else to do so. Tampering with physical evidence is a Class E felony under New York State law.

Now, let’s discuss the four parts to the official statute. In order to be found guilty of this offense, all of the following elements of the statute must be proven true:

1. “Evidence”
2. “Knowingly”
3. “Intent”
4. “Prospective Official Proceeding”

To further understand the statute completely, we will go through each one to clarify the definition and explore ways in which it could not hold true.

Evidence

Evidence refers to facts or information which indicate whether a belief or proposition is true or valid. Remember that in this case, we are only discussing physical types of evidence. It is important to delineate that a person can only be convicted of evidence tampering if the object was indeed evidence, whether or not the defendant thought it to be such.

• For example, let’s say Jason’s boss, Sarah, was accused of stealing a laptop from the store where they both worked. In an attempt to help out his superior, Jason edited the inventory documents to reflect that no laptops were missing.

Later, details emerge specifying that Sarah actually stole a TV and not a laptop. Therefore, Jason did not tamper with any evidence in this case, as the paperwork he changed was not in actuality relevant to the crime.

Additionally, even if one believed he or she tampered with the correct evidence but ultimately made a mistake in doing so, the person would not be held accountable.

• For example, let’s say Jason edited the TV inventory documents to reflect that no 65” TV’s were missing since he knew that she stole a TV. However, Sarah had actually stolen a 43” TV, which was still clearly proven by the inventory and sale records even after Jason’s actions.

Here, he was closer to doing the deed and actually thought he did so but was thwarted by his own error. If the object he devised had no bearing on this case, he wouldn’t be held liable for tampering with evidence of this crime.

Knowingly

This means that the defendant has to be aware of the fact that his or her actions had the result of tampering with physical evidence. In the case of Jason and Sarah above, say Sarah asked Jason to update the inventory paperwork, and he was not aware of her crime. Without her explaining her reasoning, and without knowing about the stolen TV in the store, Jason complied.

Jason is not guilty of evidence tampering because he had no knowledge that the information he altered on the documents was, in fact, evidence of theft. The prosecution cannot prove here that Jason knew the significance of the numbers of TVs before he noted the change.

Intent

This may seem repetitious to doing something “knowingly,” like the previous element, but in fact, the two differ. Tampering with evidence with intent means that the defendant intended to destroy evidence and did not do so accidentally. To negate this element, consider this: A person may have been aware of the significance of the object but unintentionally destroyed it.

This is distinguishable from doing so without knowing of the evidentiary status (as in the above element, “knowingly”).

• For example, let’s refer once again to the situation of Sarah, Jason, and the stolen TV. Suppose Sarah herself edited the paperwork to reflect the difference in TVs in stock so no one would notice the missing item. Jason caught onto Sarah’s scheme but accidentally shredded the proof of her wrongdoing while clearing his desk.

If the defense can prove that this was purely a mishap, Jason would not be responsible for destroying the evidence because his intention was not to interfere with the investigation but rather to clean his desk.

Prospective Official Proceeding

This element relates to the timeline of events. If one destroys an object which may function as evidence in a future investigation, with the intent of hampering the investigation, the action is still considered evidence tampering. This is true even if the object was not officially submitted as evidence in a legal proceeding at the time, or even if the crime had not even yet taken place.

• In the three previous examples, we can assume that an investigation was already underway when the alleged evidence tampering took place. Now, let’s consider what would happen if Sarah were to confide in Jason right after the theft before the authorities were notified. Any action he was to take to hide the evidence in advance of any future investigation would fall under this category.

For this element, it’s harder to build a defense against the evidence tampering in this specific situation.

• For a hyperbolic example, maybe Jason was quite sure that the crime would never be discovered, but decided to update the paperwork anyway due to extreme OCD. If the defense can prove that he did not intend to obstruct future investigations, perhaps he could be exonerated from tampering charges. We will revisit this element of the crime more realistically with actual cases later on.

Related Crimes

To make sure we are perfectly clear on all aspects of this crime, let’s explore some related offenses that often go hand in hand with physical evidence tampering:

• Tampering With Private Communications
• Tampering with Public Records in the First Degree
• Tampering with Public records in the Second Degree

These charges may be brought instead of or in addition to the charge of tampering with physical evidence, so it’s important to clarify them one by one.

Tampering With Private Communications

Statute 250.25 lists the conditions under which one would be guilty of tampering with private communications. This charge includes opening or reading a sealed communication without consent or divulging the contents of a sealed communication after it was wrongly opened, without consent of the sender or receiver.

It also includes attempting, without consent, to obtain private communication from a corporation which holds such information, or knowingly divulging the information the contents without consent (except in the case of law enforcement.) This crime is a Class B misdemeanor.

• Let’s use a new scenario to bring out all four examples of this same offense. Suppose, without permission. Kyle opened a private, sealed letter that was addressed to his father. He is guilty of violating this statute.

Alternatively, if he called his father’s phone service and forced them to send him records of his father’s private phone calls without consent, he is also guilty of violating this statute. If Kyle tells his sister, Anne, about the contents of the letter or the phone records (in either case), knowing he has no consent from his father to disclose this information, he is guilty of violating this statute.

Additionally, if Anne divulges the information to anyone, she is guilty of the same charge as well, even though she was not the one who obtained it without authorization.

While all these cases are prosecutable on their own, how do they relate to the tampering of evidence?

• Let’s say the information discovered in the letter or phone records contained a damning proof of an illegal deal Kyle, and Anne’s dad was conducting with the mafia. If this leads them to destroy the documents, they would be guilty of destroying physical evidence in addition to tampering with private communications and may be in the same boat as our friend Jason, only worse.

Tampering with Public Records in the First Degree

Statute 175.25 defines this crime as altering or destroying a public record with the intent to defraud, knowing that one has no permission to do so. This is a Class D felony. Public records can be paperwork or computer files that are filed with a government body.

• An example of this crime is Kyle hacking into the NYC Department of Health System and altering the birthplace on his father’s birth certificate. Perhaps he did this in order to hide the fact that his father has a connection to a known mafia personality through their shared birth town.

In that case, it could also be tampering with physical evidence in any future proceedings regarding the pair’s illegal activity.

Tampering with Public Records in the Second Degree

This statute, 175.20, is similar to the above except it does not include the element of intent to defraud.

• A Class A misdemeanor, it could be applied in a situation of Kyle paying Sam to do the hacking without explaining why. Sam would alter the information while knowing he had no permission to do so.

However, since he is not motivated by malicious intent, and is only doing so for the purpose of the payment, he would serve as an example of this crime.

Impactful Cases

You might be wondering how the issue of tampering with physical evidence comes up in real cases, outside of our fictional world of stolen TVs and mafia men. Let’s enumerate some important cases that set precedents for later decisions and how the interpretation of this statute evolved over time.

• People v. Traynham (1978)^[1]: The defendant put an allegedly purchased glassine envelope of white powder in his mouth, and it was not recovered by police. The court ruled that an arrest did not constitute an official legal proceeding, as required by the language of the statute. Therefore, the defendant was not found guilty of tampering with physical evidence.
• People v. Nicholas (1979)^[2]: The defendant moved a body which became the subject of a homicide investigation. The court ruled that although there was no official proceeding at the time, a “prospective official proceeding could readily be contemplated.” The state of the body and the apparent manner of death pointed to a murder investigation. Therefore, the defendant was found guilty of tampering with physical evidence that would be produced in a proceeding.
• People v. Simon (1989)^[3]: The defendant threw down a pile of cocaine which he had been smoking, causing it to break. This was after he noticed an approaching police officer. The court ruled that the officer’s official function at the time was not obvious and there was no proof of intent to break the pipe due to the contemplation of a prospective proceeding. Therefore, the defendant was not found guilty of tampering with physical evidence.
• People v. Palmer (1998)^[4]: The defendant swallowed a plastic bag of marijuana after running from an officer who ordered him to stop. It was clear that the officer was acting in a capacity of dealing with criminal activity. The defendant’s irrational action made it clear that he intuited a prospective proceeding. Therefore, the defendant was found guilty of tampering with physical evidence.

After scanning the basics of these four cases, you can see how the guilty rulings shift back and forth as new understandings of the statute are settled. These examples are important because they teach us how the wording of the statute has expanded to include contemplation of proceeding and how the approach of a police officer could be enough to satisfy the fourth element of the statute.

We can also see a good example here of how the absence of this element can negate the ruling. The defendant may not have in mind to destroy or alter the alleged evidence because of the possibility of a future investigation. (Remember Jason’s attempted motion to dismiss due to OCD?)

Investigating This Crime

Because this is is a Class E felony, a less serious type of felony, tampering with physical evidence is usually investigated by the arresting police entity. Many times it is discovered at the scene of the arrest, and it is usually charged together with other crimes. After all, the evidence being handled in this charge will always be proof of a different crime.

Common instances of this charge are drug-related offenses, as discussed in all the real cases above. However, the severity of the charge will directly relate to the specific situation. For example, covering up evidence of homicide is more serious than incorrectly documenting a stolen TV.

For this reason, the charge is not to be taken lightly and can have extreme consequences. Let’s go through the penalties that can be faced and what can exacerbate the punishment.

Penalties for Violation

As a rough guide, the general sentencing for a Class E non-violent felony in NY State is No Jail, Probation of 1 1/3 to 4 years. However, this does not account for prior criminal history, the juvenile status of the offender, or drug-related charges, which are all factors that affect the sentencing decision. Additionally, the nature of the tampering will affect the level of the penalty.

• For example, destroying evidence in full view of law enforcement officials after being ordered to stop will carry a higher sentence.

It also depends if the charge is on a federal or state level. All in all, physical evidence tampering can result in a fine as high as 10,000 and up to 20 years in prison. Although we have been exclusively focusing on statute 215.40, let’s not forget the related charges of communication and public records tampering, which are often involved.

These carry sentences of 1-7 years.  Even the conviction of a misdemeanor is a crime that will stay on one’s record for life. That’s why it’s important to retain an attorney who can use possible defenses to expunge the record or diminish the sentence.

Defenses Against This Charge

An expert criminal defense lawyer can adroitly navigate the process and administer applicable defense stances. We already discussed in detail four possible positions that will disintegrate the case: the four elements that make up the statute. Proving that one of them was not committed, as we showed in the four examples with Jason, can invalidate the entire charge.

Additionally, there may be other circumstances that affect a charge, such as the following. Try to see if you can remember examples from all the fictional and real cases we discussed.

• Intoxication or other impediments to intention (This could have been the case in any of the drug-related cases.)
• Abandonment of item due to regular discarded (This plays a part in the People v. Simon defense, above.)
• Being forced to commit the tampering (This is mentioned in the introductory example with the file shredding.)
• A mistake of fact, which refers to not knowing the relevance of the object (Jason did this when unknowingly following Sarah’s instructions.)

Fictional Examples

Evidence brought by the prosecution or defense can change the outcome of a case, as we have seen many times both in actual legal history and in familiar fictional situations.

• For a relatable example, think of the way Elle in Legally Blonde was able to use Chutney’s permed hair as proof that her shower alibi was false. Although it was not official evidence entered into the trial, the maintained status of her hairstyle was integral to the winning of this amusing case.
• For a real-life example, you may remember the glove that played an important part in the OJ Simpson trial. Clearly, hiding or changing evidence has a big effect on how legal decisions are ultimately made and is, therefore, an offense.

A Lawyer Can Help

If you’re stuck in a situation involving the tampering of physical evidence, retaining a competent attorney for the matter is of paramount benefit to you.

An experienced criminal defense attorney can advise you on your next steps and proper responses to questioning, discuss the aspects of the case with the investigation to clarify it for you, negotiate the charges, think of defense strategies, and lead the trial process if necessary.

Our firm is top-rated by lawyers and clients alike, with numerous practice areas and experience with multiple offenses. We are available to give the confidential help needed, 24/7 and in your area. If you are in a situation which could carry serious consequences, don’t hesitate to reach to us to enable the chance for the best possible outcome.