Spoliation of Evidence

SPOLIATION OF EVIDENCE: A FIRE SCENE DILEMMA

I. INTRODUCTION

THE TERM "SPOLIATION" REFERS TO THE LOSS, DESTRUCTION OR ALTERATION OF AN OBJECT WHICH IS EVIDENCE OR POTENTIAL EVIDENCE IN A PENDING OR FUTURE LEGAL PROCEEDING. IT IS A CONCEPT FIRST RECOGNIZED BY COURTS IN ENGLAND MORE THAN A CENTURY AGO WHICH HAS ONLY RECENTLY TAKEN ON SIGNIFICANCE IN THIS COUNTRY. HOWEVER, IT IS AN ISSUE OF PARTICULAR IMPORTANCE TO THE FIELD OF FIRE INVESTIGATION AND WILL LIKELY BECOME INCREASINGLY SIGNIFICANT AS COURTS ARE CALLED UPON TO DECIDE THE CONSEQUENCES OF LOST, ALTERED, ABANDONED OR UNPRESERVED PHYSICAL EVIDENCE IN FIRE LITIGATION CASES.

IN COUNTY OF SOLANO V. DELANCY, 264 CAL. RPTR. 721, 724 (CAL. CT. APP. 1989), THE CALIFORNIA COURT OF APPEALS DEFINED THE LEGAL MEANING OF SPOLIATION:

[W]E FIND NO DEFINITION OF "SPOLIATION" IN THE CALIFORNIA OPINIONS THAT HAVE DEALT WITH [THE TORTS OF INTENTIONAL AND NEGLIGENT SPOLIATION OF EVIDENCE], EVEN THOSE THAT FIRST RECOGNIZED "SPOLIATION" AS A TORT. WE THEREFORE OFFER ONE OF OUR OWN, AT LEAST FOR PURPOSES OF THIS OPINION: "SPOLIATION" MEANS FAILURE TO PRESERVE PROPERTY FOR ANOTHER'S USE AS EVIDENCE IN PENDING OR FUTURE LITIGATION.

IN MILLER V. MONTGOMERY COUNTY, 494 A.2D 761 (MD. CT. SPEC. APP. 1985), A MARYLAND COURT DEFINED SPOLIATION AS "THE DESTRUCTION, MUTILATION OR ALTERATION OF EVIDENCE BY A PARTY TO AN ACTION." HOWEVER, COURTS HAVE NOW EXTENDED THE CONCEPT OF SPOLIATION TO INCLUDE THE FAILURE TO PRESERVE EVIDENCE, AS WELL AS THE INTENTIONAL DESTRUCTION OF EVIDENCE. PASSIVE CONDUCT WHICH SIMPLY PERMITS EVIDENCE TO BE LOST OR DESTROYED BY OTHERS WILL NOW BE CONSIDERED SPOLIATION OF EVIDENCE, ALSO.

SPOLIATION OF EVIDENCE IS AN ISSUE WHICH CAN AFFECT ANY INVESTIGATION INVOLVING EVIDENCE COLLECTION AND FORENSIC ANALYSIS. ONE OF THE MOST CELEBRATED CLAIMS OF SPOLIATION WAS SEEN IN THE O.J. SIMPSON TRIAL. FIRE SCENE INVESTIGATIONS ARE ESPECIALLY VULNERABLE TO SPOLIATION PROBLEMS BY THEIR VERY NATURE. IN ORDER TO EFFECTIVELY AVOID THE PROSPECT OF A SPOLIATION CLAIM, IT IS IMPORTANT TO UNDERSTAND THE CONCEPT AND THE WAYS COURTS HAVE RESPONDED TO THIS ISSUE WHEN IT ARISES.

II. SPOLIATION IN LITIGATION

LITIGANTS IN CASES WHERE A CRITICAL ISSUE TURNS ON THE CONDITION OR EXISTENCE OF PHYSICAL EVIDENCE THAT IS NOW UNAVAILABLE OR HAS NOT BEEN PROPERLY PRESERVED WILL HAVE A DIFFICULT (SOMETIMES IMPOSSIBLE) TIME PROVING A CLAIM OR ESTABLISHING A DEFENSE TO ANOTHER PARTY’S CLAIM. THIS IS PARTICULARLY TRUE WHEN THE OBJECT ITSELF WOULD HAVE BEEN THE PROOF REQUIRED TO ESTABLISH OR REFUTE THE CLAIM. FIRE LITIGATION CASES EXEMPLIFY THIS PROBLEM. IN THOSE SITUATIONS, THE JURY IS LEFT WITH ONLY WITNESSES' DESCRIPTIONS OR RECOLLECTIONS OF KEY EVIDENCE. COURTS MUST PROVIDE AN APPROPRIATE REMEDY FOR THE DISADVANTAGED PARTY BY IMPOSING A COMMENSURATE PUNISHMENT ON THE WRONGDOING PARTY IN ORDER TO BALANCE THE PROVERBIAL SCALES OF JUSTICE.

THE REMEDIES EMPLOYED BY THE COURTS INCLUDE: (1) DISMISSAL OF THE CLAIM OR STRIKING THE DEFENSES TO A CLAIM; (2) DISCOVERY SANCTIONS UNDER THE COURT'S "INHERENT POWERS" OR UNDER THE RULES OF DISCOVERY; (3) APPLICATION OF EVIDENTIARY INFERENCES OR LIMITATIONS UNDER THE RULES OF EVIDENCE; (4) INDEPENDENT TORT ACTIONS FOR THE INTENTIONAL OR NEGLIGENT DESTRUCTION OF EVIDENCE; AND (5) PROSECUTION UNDER CRIMINAL STATUTES RELATING TO THE OBSTRUCTION OF JUSTICE.

A. DISMISSAL

IF THE SPOLIATION WAS THE RESULT OF DELIBERATE OR MALICIOUS CONDUCT BY A PARTY OR ONE OF ITS AGENTS, IN A CONSCIOUS EFFORT TO THWART THE CLAIM OR DEFENSE OF ANOTHER PARTY, COURTS HAVE IMPOSED THE MOST SEVERE SANCTION AND HAVE DISMISSED ACTIONS OR STRICKEN THE DEFENSES TO ACTIONS.1 SEVERAL CASES HAVE ARISEN IN THE AREA OF FIRE SCENE INVESTIGATIONS AND THE LOSS OF EVIDENCE FROM THE SCENE. IN ALLSTATE INSURANCE CO. V. SUNBEAM CORP., 865 F. SUPP 1267 (N.D. ILL. 1994), ALLSTATE FILED A SUBROGATION CLAIM AGAINST Iverson v. Xpert Tune, Inc., 553 So. 2d 82 (Ala. 1989); Matter of Estate of Soderholm, 127 Ill. App. 3d 871, 469 N.E.2d 410, 417 (1984) (destruction of evidence in a non-products action; judgment by default against plaintiffs); Merck & Co. v. Biorganic Laboratories, Inc., 82 N.J. Super. 86, 196 A.2d 688 (1964) (destruction of documents justified default judgment). SUNBEAM SEEKING RECOVERY OF THE PAYMENT TO ITS INSUREDS FOR A FIRE WHICH DAMAGED THEIR HOUSE. SUNBEAM MOVED TO DISMISS THE CASE, ALLEGING ALLSTATE FAILED TO PRESERVE CERTAIN EVIDENCE WHICH WAS ESSENTIAL TO ITS DEFENSE.

ALLSTATE'S THEORY WAS THAT THE FIRE STARTED IN A SUNBEAM GAS GRILL, CAUSED BY A LEAK IN THE PIPES, VALVES AND HOSES THAT SUPPLIED GAS FROM THE TANK TO THE GRILL BURNERS. THE FIRE WAS INTENSIFIED AS THE PROPANE CONTINUED TO LEAK, OVERHEATING THE TANK, CAUSING IT TO OVER-PRESSURIZE AND VENT ADDITIONAL PROPANE, ULTIMATELY SPREADING TO THE ADJACENT RESIDENCE AND DESTROYING IT. ALLSTATE CLAIMED THAT THE FIRE WOULD NOT HAVE DEVELOPED TO THE POINT IT OVERHEATED THE TANK, AND THE RESULTANT FIRE TO THE HOUSE WOULD NOT HAVE OCCURRED, IF THE GRILL HAD BEEN EQUIPPED WITH A THERMAL SHUTOFF OR SAFETY DISCONNECT DEVICE. IN RESPONSE, SUNBEAM ASSERTED THAT IT WAS MORE LIKELY THAT THE FIRE WAS CAUSED BY A SPARE TANK OF PROPANE STORED NEAR THE GRILL WHICH HAD BEEN OVERFILLED. SUNBEAM CLAIMED THE PROPANE IN THE SPARE TANK HAD EXPANDED AS A RESULT OF A COMBINATION OF THE DIRECT EXPOSURE TO SUN'S HEAT, THE AMBIENT AIR TEMPERATURE AND RADIANT HEAT FROM THE NEARBY GRILL. THE EXPANSION OF THE OVERFILLED TANK AFTER IT WAS HEATED CAUSED THE RELIEF VALVE TO OPEN, RELEASING PROPANE GAS WHICH ULTIMATELY REACHED THE BURNERS AND IGNITED.

SUNBEAM COULD NOT PROVE ITS DEFENSE BECAUSE, AS A RESULT OF THE ACTIONS OF AN ALLSTATE INVESTIGATOR, THE SPARE TANK HAD BEEN DISCARDED AND COULD NOT BE FOUND TO BE EXAMINED. THE GRILL FRAME AND ACCESSORIES WERE ALSO UNAVAILABLE, BECAUSE THEY HAD NOT BEEN PRESERVED BY ALLSTATE'S INVESTIGATOR.

THE MAGISTRATE CONCLUDED THAT THE MISSING EVIDENCE WAS HIGHLY RELEVANT, AND ITS ABSENCE PREJUDICED SUNBEAM'S DEFENSE "SIGNIFICANTLY AND IRREVOCABLY." THE FACT THAT THE ALLEGEDLY DEFECTIVE PRODUCT ITSELF WAS NOT DESTROYED WAS OF NO CONSEQUENCE, SINCE "[T]HE RULE REQUIRING PRESERVATION OF EVIDENCE RESTS ON BASIC FAIRNESS, AND THERE IS NO REASON TO LIMIT IT TO THE PRODUCT ITSELF." THE MAGISTRATE RULED THAT THE CASE SHOULD BE DISMISSED. IN DOING SO, HE ADMONISHED ALLSTATE, STATING:

BY REASON OF PLAINTIFF'S ACT IN DESTROYING MATERIAL EVIDENCE, WE CONCLUDE THAT DISMISSAL OF THE CASE IS AN APPROPRIATE SANCTION DESERVING OF ALLSTATE'S CAVALIER ATTITUDE IN THIS CASE. KNOWING FULL WELL THAT SUBROGATION EFFORTS TOWARDS SUNBEAM WERE A DISTINCT POSSIBILITY, ALLSTATE NONETHELESS DESTROYED ALL EVIDENCE AVAILABLE FOR SUNBEAM TO FORMULATE A CAUSE AND ORIGIN ANALYSIS, AND PRESENT THAT ANALYSIS TO THE FACT FINDER. SUNBEAM WAS INEXTRICABLY HARMED IN ITS ABILITY TO DEFEND THE LAWSUIT. ACCORDINGLY, PLAINTIFF'S CONDUCT REQUIRES, AS AN APPROPRIATE SANCTION, THAT THE COMPLAINT BE DISMISSED.

SIMILARLY, IN CAPITAL CHEVROLET, INC. V. SMEDLEY, 614 SO. 2D 439 (ALA. 1993), AUTO-OWNERS INSURANCE COMPANY BROUGHT SUIT AGAINST THE MANUFACTURER AND RETAILER OF A CONVERSION VAN THAT WAS DESTROYED IN A FIRE WHICH BEGAN IN THE ENGINE COMPARTMENT OF THE VEHICLE. AFTER INVESTIGATING THE CAUSE OF THE FIRE AND PAYING ITS INSURED'S CLAIM, AUTO-OWNERS AUTHORIZED DISPOSAL OF THE VAN SO THAT IT WOULD NOT ACCRUE ANY MORE CHARGES FOR HAVING THE VAN STORED. ELEVEN MONTHS LATER, THE SUBROGATION ACTION WAS COMMENCED. THE TRIAL COURT DENIED GENERAL MOTORS' REQUEST TO HAVE THE CASE DISMISSED BECAUSE OF THE SPOLIATION OF THE EVIDENCE. ON APPEAL, HOWEVER, THE SUPREME COURT OF ALABAMA HELD DISMISSAL TO BE THE APPROPRIATE REMEDY, NOTING: "[T]HIS IS BASICALLY A SUBROGATION CLAIM BROUGHT BY THE SAME INSURANCE COMPANY THAT ORDERED THE DESTRUCTION OF ITEMS THAT WOULD HAVE BEEN CRUCIAL EVIDENCE IN THAT COMPANY'S ACTION."

WHILE THE SANCTION OF DISMISSAL HAS BEEN IMPOSED IN MANY CASES, COURTS WILL LOOK TO SEE IF SOME LESSER FORM OF SANCTION WILL BE SUFFICIENT TO PUNISH THE CONDUCT AND RESTORE FAIRNESS TO THE PROCESS. IN TRANSAMERICA INSURANCE GROUP V. MAYTAG, INC, 650 N.E.2D 169 (OHIO APP. 1994), A FIRE OCCURRED AT A RESIDENCE INSURED BY TRANSAMERICA. TRANSAMERICA HIRED AN INVESTIGATOR TO EVALUATE THE SCENE AND DETERMINE THE ORIGIN AND CAUSE OF THE FIRE. THE INVESTIGATOR CONCLUDED THAT THE CAUSE OF THE FIRE WAS A FAULTY POWER CORD ON A MAYTAG REFRIGERATOR. PICTURES WERE TAKEN OF THE REFRIGERATOR AND THE POWER CORD WAS PRESERVED BUT THE REFRIGERATOR ITSELF WAS NOT PRESERVED.

TRANSAMERICA FILED A SUBROGATION ACTION AGAINST MAYTAG ALLEGING NEGLIGENCE AND BREACH OF IMPLIED WARRANTIES. MAYTAG FILED A SUMMARY JUDGMENT MOTION ALLEGING THAT SINCE THE REFRIGERATOR WAS DESTROYED PRIOR TO THE SUIT, THE DOCTRINE OF SPOLIATION PROVIDED A COMPLETE DEFENSE TO ITS LIABILITY. THE TRIAL COURT DISMISSED THE ACTION AS A SANCTION FOR THE SPOLIATION.

ON APPEAL, THE COURT NOTED THAT OHIO COURTS HAVE TRADITIONALLY FOLLOWED A POLICY OF IMPOSING A SANCTION SHORT OF OUTRIGHT DISMISSAL OF THE ACTION UNLESS THE PLAINTIFF’S CONDUCT EVIDENCES BAD FAITH. THE COURT OBSERVED THAT THERE WAS NO SUGGESTION THAT THE DESTRUCTION OF THE REFRIGERATOR COULD BE DIRECTLY ATTRIBUTED TO TRANSAMERICA, AND OVERTURNED THE DISMISSAL BASED UPON THE ABSENCE OF ANY BAD FAITH. THE COURT STATED THAT IT BELIEVED THE TRIAL COURT WENT TOO FAR IN ORDERING AN OUTRIGHT DISMISSAL OF THE ACTION FOR TRANSAMERICA’S FAILURE TO INSURE THE REFRIGERATOR WOULD BE PRESERVED. THE COURT HELD THAT THE SANCTION OF DISMISSAL WAS DISPROPORTIONATE TO THE WRONGDOING OF TRANSAMERICA. SEE ID. AT 171.

THE STANDARD IN CRIMINAL CASES APPEARS TO REQUIRE A STRICT SHOWING OF BAD FAITH BEFORE THE EVIDENCE WILL BE SUPPRESSED AND/OR THE CASE DISMISSED. FOR EXAMPLE, IN STATE OF FLORIDA V. BLETARD, CASE NO. 94-227-CFA (8TH JUD. CIR. 1995), THE CIRCUIT COURT IN BRADFORD COUNTY REFUSED TO DISMISS A CASE BASED ON SPOLIATION OF EVIDENCE. THE FACTS IN THAT CASE REVEALED THAT ON FEBRUARY 22, 1994, A FIRE OCCURRED AT A BUILDING THAT WAS BEING LEASED BY THE ACCUSED, BLETARD. AN INVESTIGATION WAS CONDUCTED BY THE STATE FIRE MARSHAL'S OFFICE AND THE FIRE WAS DETERMINED TO BE INCENDIARY. BEFORE THE DEFENDANT'S ARREST, CONTROL OF THE BUILDING WAS RELEASED TO THE OWNER WHO THEN REPAIRED THE DAMAGE. THE DEFENDANT FILED A MOTION TO SUPPRESS THE EVIDENCE COLLECTED FROM THE FIRE SCENE BECAUSE "THE STATE FAILED TO PRESERVE DISCOVERABLE EVIDENCE, I.E., THE BUILDING, THEREBY PLACING THE DEFENDANT IN A POSITION OF NOT BEING ABLE TO REFUTE ANY TESTIMONY GIVEN BY [THE STATE’S] EXPERT." THE DEFENDANT ALSO ALLEGED HIS CONSTITUTIONAL DUE PROCESS RIGHTS WERE PREJUDICED BY THE INTRODUCTION OF EXPERT OPINION TESTIMONY FOR THE STATE, HAVING NO ABILITY TO CHALLENGE THAT TESTIMONY THROUGH HIS OWN EXPERT AFTER THE FIRE SCENE HAD BEEN DESTROYED. THE COURT DENIED THE MOTION AND HELD THAT:

WHATEVER DUTY THE CONSTITUTION IMPOSES ON THE STATE TO PRESERVE EVIDENCE, THAT DUTY MUST BE LIMITED TO EVIDENCE THAT MIGHT BE EXPECTED TO PLAY A SIGNIFICANT ROLE IN THE SUSPECT'S DEFENSE. TO MEET THIS STANDARD OF CONSTITUTIONAL MATERIALITY, EVIDENCE MUST BOTH POSSESS AN EXCULPATORY VALUE THAT WAS APPARENT BEFORE THE EVIDENCE WAS DESTROYED, AND BE OF SUCH A NATURE THAT THE DEFENDANT WOULD BE UNABLE TO OBTAIN COMPARABLE EVIDENCE BY OTHER REASONABLE AVAILABLE MEANS. CALIFORNIA V. TROMBETTA, 467 U.S. 479, 488-89 (1984).

THE DEFENDANT HAS NOT SHOWN ANYTHING BEYOND A REMOTE POSSIBILITY OF AN EXCULPATORY VALUE IN THE BUILDING, AND HAS NOT SHOWN THAT THERE WAS ANY APPARENT EXCULPATORY VALUE IN THE BUILDING.

INDEPENDENT TESTING IS NOT THE ONLY MEANS AVAILABLE TO THE DEFENSE AND DOES NOT ENCOMPASS A PROSECUTORIAL DUTY TO PRODUCE THE STATE'S SAMPLE FOR TESTING. AN ACCUSED'S DUE PROCESS RIGHT TO ATTACK THE CREDIBILITY OF THE RESULTS OF THE TESTS IS PRESERVED, AND THE EXTREME SANCTION OF SUPPRESSION IS UNNECESSARY. HOUSER V. STATE, 474 SO. 2D 1193, 1195 (FLA. 1985).

THE DEFENDANT RETAINS THE RIGHT TO CROSS-EXAMINE THE INVESTIGATOR FROM THE FIRE MARSHAL'S OFFICE AND TO ATTEMPT TO RAISE DOUBTS IN THE MIND OF THE FACTFINDER WHETHER THE INVESTIGATION WAS PROPERLY ADMINISTERED. TROMBETTA, 467 U.S. AT 490.

ABSENT A SHOWING OF BAD FAITH BY THE STATE, AND ABSENT ANY APPARENT EXCULPATORY VALUE PRIOR TO THE FAILURE TO PRESERVE THE BUILDING, THE DEFENDANT'S DUE PROCESS RIGHTS HAVE NOT BEEN INFRINGED UPON. FURTHERMORE, THE DEFENDANT'S DUE PROCESS RIGHTS ARE PROTECTED BY THE DEFENSE'S OPPORTUNITY FOR CROSS-EXAMINATION.

THE PRACTICAL EFFECT OF SUPPRESSION OF THIS EVIDENCE WOULD HAVE BEEN DISMISSAL OF THE CASE, AS THE STATE WOULD NOT HAVE BEEN ABLE TO PROVE THAT THE FIRE WAS INTENTIONALLY SET. THUS, IT CAN BE SEEN THAT WITHOUT A SHOWING OF BAD FAITH AND ESTABLISHING THE EXCULPATORY VALUE OF THE DESTROYED EVIDENCE, CRIMINAL COURTS ARE UNWILLING TO SUPPRESS THE EVIDENCE OR DISMISS THE CHARGES BASED UPON SPOLIATION.

SIMILARLY, IN HOUSER V. STATE, 474 SO. 2D 1193 (FLA. 1985), THE DEFENDANT WAS DRIVING A VEHICLE WHEN HE STRUCK A CONCRETE WALL. THE PASSENGER IN THE CAR DIED ON IMPACT. AT THE TIME OF THE ACCIDENT, THE POLICE TOOK A BLOOD SAMPLE FROM THE ACCUSED WHICH SHOWED A BLOOD ALCOHOL LEVEL OF 0.18%, SUBSTANTIALLY IN EXCESS OF THE LEGAL LIMIT FOR INTOXICATION. FOUR MONTHS AFTER THE ACCIDENT, HOUSER'S ATTORNEY SOUGHT THE BLOOD SAMPLE TO HAVE IT INDEPENDENTLY TESTED. THE SAMPLE HAD NOT BEEN REFRIGERATED AND THUS HAD LOST ANY FORENSIC VALUE FOR TESTING PURPOSES. THE COURT REJECTED THE DEFENDANT'S DUE PROCESS ARGUMENT AND HELD THAT:

THE UNITED STATES SUPREME COURT HAS ALREADY HELD THAT THERE IS NO FEDERAL CONSTITUTIONAL REQUIREMENT TO PRESERVE BREATH SAMPLES TAKEN TO DETERMINE BLOOD ALCOHOL LEVELS. . . . ROUTINE, GOOD FAITH DESTRUCTION OF REMNANTS OF THE SAMPLING SHOWED NO CONSCIOUS EFFORT TO SUPPRESS EXCULPATORY EVIDENCE. MORE IMPORTANTLY, THE COURT HELD, DUE PROCESS REQUIRES PRESERVATION OF EVIDENCE ONLY IF IT IS LIKELY TO BE SIGNIFICANT IN THE SUSPECT'S DEFENSE. . . . WE SEE NO DIFFERENCE BETWEEN THE . . . RATIONALE FOR BREATH SAMPLES AND THE SITUATION REGARDING BLOOD SAMPLES. . . . WE THEREFORE HOLD THAT THE STATE IS NOT OBLIGATED TO TAKE AFFIRMATIVE STEPS TO PRESERVE A BLOOD SAMPLE. . . . ON BEHALF OF CRIMINAL DEFENDANTS.

IN MELENDEZ V. STATE, 498 SO. 2D 1258 (FLA. 1986), THE DEFENDANT ARGUED THAT HE WAS DENIED DUE PROCESS BECAUSE THE POLICE INVESTIGATORS FAILED TO COLLECT AND PRESERVE CERTAIN PHYSICAL EVIDENCE THAT MIGHT HAVE BEEN EXCULPATORY: A BLOOD SAMPLE FROM THE SCENE, A STAIN ON THE VICTIM'S CAR SEAT, THE CLOTHES AND SHOES OF SEVERAL WITNESSES AND THE VICTIM, A GUN, AND A HUNTING KNIFE FOUND IN THE VICTIM'S DESK DRAWER. THE COURT HELD THAT:

THIS CLAIM, RELATING TO THE OPPORTUNITY TO PRESENT A DEFENSE, INVOLVES "WHAT MIGHT LOOSELY BE CALLED THE AREA OF CONSTITUTIONALLY GUARANTEED ACCESS TO EVIDENCE." . . . TAKEN TOGETHER, THIS GROUP OF CONSTITUTIONAL PRIVILEGES DELIVERS EXCULPATORY EVIDENCE INTO THE HANDS OF THE ACCUSED, THEREBY PROTECTING THE INNOCENT FROM ERRONEOUS CONVICTION AND ENSURING THE INTEGRITY OR OUR CRIMINAL JUSTICE SYSTEM." . . . THE CONCERN IS THAT THE ACCUSED HAVE ACCESS TO EXCULPATORY EVIDENCE, NOT ALL POSSIBLE PIECES OF EVIDENCE THAT THE POLICE HAVE REJECTED TO PLAY A SIGNIFICANT ROLE IN THE SUSPECT'S DEFENSE." THE EVIDENCE MUST "POSSESS AN EXCULPATORY VALUE THAT WAS APPARENT BEFORE THE EVIDENCE WAS DESTROYED." THERE IS "NO CONSTITUTIONAL REQUIREMENT THAT THE PROSECUTION MAKE A COMPLETE AND DETAILED ACCOUNTING TO THE DEFENSE OF ALL POLICE INVESTIGATORY WORK ON A CASE." . . . MOST OF THE ALLEGED NEGLIGENT NON-PRESERVATION OF EVIDENCE IN THIS CASE OCCURRED PRIOR TO THE TIME APPELLANT BECAME A SUSPECT. WE FIND NEITHER EVIDENCE OF A CONSCIOUS EFFORT BY THE POLICE TO SUPPRESS EXCULPATORY EVIDENCE IN THIS CASE NOR A SHOWING THAT REJECTED EVIDENCE POSSESSED AN APPARENT EXCULPATORY VALUE. WE AFFIRM THIS POINT RELATING TO THE COLLECTION AND PRESERVATION OF EVIDENCE.

B. EXCLUSION OF EXPERT TESTIMONY

THE EXCLUSION OF EXPERT TESTIMONY HAS BEEN IMPOSED AS A SANCTION FOR SPOLIATION BASED ON "THE UNFAIR PREJUDICE THAT MAY RESULT FROM ALLOWING AN EXPERT TO DELIBERATELY OR NEGLIGENTLY PUT HIMSELF OR HERSELF IN THE POSITION OF BEING THE ONLY EXPERT WITH FIRST-HAND KNOWLEDGE OF THE PHYSICAL EVIDENCE ON WHICH EXPERT OPINIONS AS TO DEFECTS AND CAUSATION MAY BE GROUNDED."2 THE EXCLUSION OF TESTIMONY HAS BEEN UPHELD WITH RESPECT TO TESTIMONY THAT IS BASED ON PHYSICAL EVIDENCE WHICH THE EXPERT HAS DESTROYED. THIS SANCTION HAS BEEN IMPOSED REGARDLESS OF WHETHER THE DESTRUCTION WAS DELIBERATE OR NEGLIGENT, AND Nally v. Volkswagon, 405 Mass. 191, 539 N.W.2d 1017, 1021 (1989). REGARDLESS OF WHETHER IT OCCURRED BEFORE OR AFTER THE EXPERT WAS RETAINED BY A PARTY TO THE LITIGATION.3

IN BRIGHT V. FORD MOTOR CO., 578 N.E.2D 547 (OHIO APP. 1990), THE PLAINTIFF HAD SEVERAL PARTS OF THE VEHICLE AT ISSUE CLEANED AND “DEGREASED” PRIOR TO PROVIDING THE PARTS TO FORD’S EXPERTS FOR EXAMINATION AND INSPECTION. FORD MOVED FOR DISMISSAL OF THE ACTION CONTENDING IT HAD BEEN DEPRIVED OF THE USE OF THE EVIDENCE. THE LOWER COURT DID NOT DISMISS THE CASE, BUT PROHIBITED BOTH OF THE PLAINTIFF’S EXPERTS FROM TESTIFYING WITH REGARD TO THE PARTS AT ISSUE.

ON APPEAL, THE COURT RECOGNIZED THAT THE FAILURE TO PRESERVE EVIDENCE IS SANCTIONABLE. HOWEVER, THE SANCTION MUST BE JUST AND A SANCTION WHICH, IN EFFECT, PUTS A PARTY “OUT OF COURT” MUST BE BASED ON A DEMONSTRABLE PREJUDICE TO THE OPPOSING PARTY. SEE ID. AT 549. THE COURT PUT FORTH WHAT IT DEEMED “A WORKABLE FORMULATION OF PREJUDICE”, HOLDING THAT THE DEFENDANTS SHOULD ENJOY A PRESUMPTION OF PREJUDICE AND THAT THE PLAINTIFFS SHOULD HAVE THE BURDEN OF ESTABLISHING THAT THERE WAS NO PREJUDICE. THE COURT ALSO STATED THAT IF IT IS IMPOSSIBLE FOR EITHER PARTY TO MEET THEIR BURDEN OF PERSUASION ON THAT ISSUE, THE PARTY WHO DESTROYED THE EVIDENCE MUST SUFFER THE PRESUMPTION THAT THE LOSS OF SUCH EVIDENCE WAS PREJUDICIAL TO THE INNOCENT PARTY Id.; Bolton v. Massachusetts Bay Transp. Auth., 32 Mass. App. Ct. 654, 656-57, 593 N.E.2d 248, 249 rev. den. 413 Mass. 1104, 598 N.E.2d 1133 (1992).’S CASE. THE COURT OBSERVED THAT IT WOULD BE “MANIFESTLY UNJUST” TO PLACE THIS BURDEN OF PERSUASION UPON THE INNOCENT PARTY. SEE ID. AT 550.

IN CINCINNATI INSURANCE CO. V. GENERAL MOTORS CORPORATION, 1994 OHIO APP. LEXIS 4960 (OTTAWA COUNTY OCT. 28, 1994), THE INSURED’S HOME WAS DAMAGED BY FIRE. THE INSURER FILED SUIT AGAINST GENERAL MOTORS, ALLEGING THAT A MANUFACTURING OR DESIGN DEFECT IN THE INSURED’S MOTOR VEHICLE WAS THE CAUSE OF THE FIRE. SEE ID. AT 2. GENERAL MOTORS ALLEGED THAT THE INSURANCE COMPANY DESTROYED EVIDENCE AND FAILED TO ALLOW THEM TO EXAMINE THE VEHICLE IN ITS “AFTER THE FIRE” CONDITION. SEE ID.

FIRST, THE COURT DETERMINED THAT IN A PRODUCT LIABILITY ACTION WHERE EVIDENCE IS INTENTIONALLY OR NEGLIGENTLY “SPOILED” OR DESTROYED BY A PLAINTIFF OR HIS EXPERT BEFORE THE DEFENSE HAS AN OPPORTUNITY TO EXAMINE THAT EVIDENCE FOR ANY ALLEGED DEFECTS, A COURT MAY PRECLUDE ANY AND ALL EXPERT TESTIMONY AS A SANCTION FOR “SPOLIATION OF EVIDENCE”. THIS CASE RELIED ON THE HOLDINGS IN NALLY V. VOLKSWAGEN OF AMERICA, 539 N.E.2D 1017 (MASS. 1989) AND HIRSCH V. GENERAL MOTORS ACCEPTANCE CORP., 628 A.2D 1108 (N.J. SUPER. L. 1993) IN REACHING THIS DECISION. THE COURT ALSO CONCLUDED THAT WHEN A DEFENDANT ALLEGES THAT A PLAINTIFF HAS DESTROYED A PIECE OF RELEVANT EVIDENCE, THE TRIAL COURT MUST DETERMINE THE DEGREE OF PREJUDICE TO THE DEFENDANT AND IMPOSE A SANCTION COMMENSURATE WITH THAT DEGREE OF PREJUDICE.

THE COURT ADOPTED THE REASONING IN THE BRIGHT CASE GIVING THE INNOCENT PARTY A PRESUMPTION OF PREJUDICE AND PLACING THE BURDEN OF PERSUASION ON THE “SPOLIATOR” TO REBUT THIS PRESUMPTION, BUT ADDED THAT THE INNOCENT PARTY MUST FIRST ESTABLISH (1) THAT THE EVIDENCE IS RELEVANT, (2) THAT THE “SPOLIATOR’S” EXPERT HAD AN UNFAIR OPPORTUNITY TO EXAMINE THE LOST OR ALTERED EVIDENCE AND (3) THAT EVEN THOUGH THE “SPOLIATOR” WAS CONTEMPLATING LITIGATION AGAINST THE INNOCENT PARTY, THE EVIDENCE WAS INTENTIONALLY OR NEGLIGENTLY DESTROYED OR ALTERED WITHOUT PROVIDING AN OPPORTUNITY FOR INSPECTION BY THE INNOCENT PARTY.

IN TRAVELERS INSURANCE CO. V. DAYTON POWER AND LIGHT CO., 663 N.E.2D 1383 (OHIO MISC. 1996), THE COURT WAS FACED WITH DETERMINING THE APPROPRIATE SANCTION FOR THE DISPOSAL OF EVIDENCE AT A FIRE SCENE. IN THAT CASE, A FIRE BROKE OUT AT THE INSURED’S BUSINESS AND DAMAGED TWO PIECES OF ELECTRICAL EQUIPMENT, A TRANSFORMER AND TRANSITION CABINET SERVICED BY DAYTON POWER. THE INSURED CONTACTED TRAVELERS, WHO IN TURN CONTACTED SEA, INC., TO EXAMINE THE DAMAGE AND DETERMINE THE CAUSE OF THE LOSS. INDIVIDUALS FROM DAYTON POWER WERE ALSO ON THE SCENE AFTER THE FIRE BUT THEY ONLY RESTORED THE ELECTRICAL POWER AND DID NOT CONDUCT AN INVESTIGATION. THEY DID, HOWEVER, TAKE PHOTOS OF THE TRANSITION CABINET. SEE ID.

AN INDIVIDUAL FROM SEA EXAMINED BOTH THE PIECES AND ISSUED A REPORT ALLEGING THAT THE FIRE WAS PROBABLY CAUSED BY THE FAILURE OF DAYTON POWER TO SUFFICIENTLY TIGHTEN A BOLT WHEN THEY CONNECTED NEW CABLES TO THE TRANSFORMER FIVE YEARS EARLIER. AFTER THE FIRE, THE INSURED DISPOSED OF THE TRANSITION CABINET AFTER BEING TOLD BY SEA, INC., THAT IT WAS NOT NECESSARY TO KEEP THE PIECE. TRAVELERS PAID THE INSURED’S CLAIM AND FILED A SUBROGATION ACTION AGAINST DAYTON POWER, CLAIMING THAT THE FIRE WAS CAUSED BY ITS NEGLIGENCE IN CONNECTING THE CABLES. DAYTON POWER, IN RESPONSE, FILED A MOTION FOR SUMMARY JUDGMENT ALLEGING THAT TRAVELERS’ DISPOSAL OF THE CABINET AMOUNTED TO SPOLIATION OF EVIDENCE. SEE ID. AT 1385.

THE COURT FIRST DETERMINED THAT THE DOCTRINE OF SPOLIATION OF EVIDENCE IS NOT LIMITED TO PRODUCT LIABILITY CASES AND APPLIES IN CASES WHERE THE CAUSE OF ACTION IS BASED UPON NEGLIGENCE. ALTHOUGH THERE WAS NO INTENTIONAL DESTRUCTION OF EVIDENCE IN THIS CASE, THE COURT DETERMINED THAT NEGLIGENT OR INADVERTENT DESTRUCTION OF EVIDENCE IS SUFFICIENT TO TRIGGER SANCTIONS WHERE THE OPPOSING PARTY IS DISADVANTAGED BY THE LOSS. IN DETERMINING THE PROPER SANCTION, IT IS NECESSARY TO LOOK AT THE RELATIVE IMPORTANCE OF THE EVIDENCE AND ITS RELEVANCE. THE COURT FOUND THAT TRAVELERS AND THE INSURED SHOULD HAVE KNOWN AT THE TIME THEY DISPOSED OF THE CABINET THAT IT WOULD BE MATERIAL EVIDENCE IN A SUBSEQUENT LAWSUIT AND THAT ITS IMPORTANCE SHOULD HAVE BEEN OBVIOUS. FURTHER, THE COURT REASONED THAT ALTHOUGH NOT ALL ITEMS AT A FIRE SCENE ARE ESSENTIAL TO PRESERVE, IF THE ITEM IS CONNECTED TO OTHER EVIDENCE WHICH COULD INDICATE THE CAUSE OF THE FIRE AND ITS IMPORTANCE IS FORESEEABLE, THE EVIDENCE SHOULD BE RETAINED. AS SUCH, DAYTON POWER SHOULD HAVE BEEN GIVEN A CHANCE TO INSPECT THE CABINET BEFORE IT WAS DISCARDED. SEE ID.

IN LIGHT OF ALL THESE FACTS, THE COURT NEXT DETERMINED THE APPROPRIATE SANCTIONS TO IMPOSE UPON TRAVELERS. THE COURT FOUND THAT DAYTON POWER HAD PERSONNEL ON THE SCENE IMMEDIATELY AFTER THE FIRE AND FAILED TO CLOSELY INSPECT THE CABINET AT THAT TIME, WHICH MITIGATED THE EFFECT OF ANY PREJUDICE. HOWEVER, IT WAS STILL CLEAR THAT DAYTON POWER HAD BEEN PREJUDICED TO SOME EXTENT AND WAS DEPRIVED OF POTENTIALLY FAVORABLE EVIDENCE WHEN THE CABINET WAS DISCARDED. SEE ID. AT 1387. IN SEEKING TO COUNTERACT THE PREJUDICIAL EFFECT CAUSED BY THE DISPOSAL OF THE CABINET, THE COURT ORDERED THE DEPOSITION TESTIMONY OF THE SEA INVESTIGATOR STRICKEN AND PRECLUDED HIM FROM TESTIFYING AT TRIAL. FURTHER, THE COURT RULED THAT NO OTHER WITNESS COULD RELY ON THE INVESTIGATOR’S FINDINGS AND THE JURY WAS INSTRUCTED THAT IF IT DEEMED THE DESTROYED EVIDENCE SIGNIFICANT IN DETERMINING THE CAUSE OF THE FIRE, IT SHOULD INFER THAT THE EVIDENCE WOULD REVEAL FACTS DAMAGING TO TRAVELERS’ CASE. SEE ID. AT 1388

IN TRAVELERS INSURANCE CO. V. KNIGHT ELECTRIC COMPANY, 1992 OHIO APP. LEXIS 6664 (STARK COUNTY DEC. 21, 1992), THE APPEALS COURT DETERMINED THAT THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY STRIKING THE OPINION EVIDENCE OF THE PLAINTIFF’S EXPERT THAT WAS BASED UPON PHYSICAL EVIDENCE NO LONGER AVAILABLE TO THE DEFENDANT. IN THAT CASE, AN ELECTRICAL FIRE CAUSED DAMAGE TO PROPERTY INSURED BY TRAVELERS. PRIOR TO THE FIRE, KNIGHT WAS CALLED TO EXAMINE THE CIRCUIT BREAKER AND FIX ANY ELECTRICAL PROBLEM. KNIGHT MADE SOME ADJUSTMENTS, AFTER WHICH SOME LIGHT FIXTURES BEGAN SMOKING. SHORTLY THEREAFTER, IT WAS DISCOVERED THAT THE ELECTRICAL WIRING IN THE CEILING WAS ON FIRE. SEE ID. AT 2.

TRAVELERS HIRED AN EXPERT AND AN INDEPENDENT ADJUSTING COMPANY TO DETERMINE THE CAUSE OF THE FIRE. THE LIGHT FIXTURE AND SEVERAL OTHER PIECES OF EQUIPMENT WERE REMOVED FROM THE PROPERTY FOR TESTING. AFTER THE TESTS WERE COMPLETE, THE ITEMS WERE DISPOSED OF BY THE INDEPENDENT ADJUSTER. SEE ID. AT 3. THE TRIAL COURT RULED THAT THE EXPERT’S DEPOSITION AND AFFIDAVIT MUST BE STRICKEN BECAUSE THE ITEMS AND THE TESTS PERFORMED ON THOSE ITEMS PROVIDED THE BASIS FOR HIS OPINION THAT KNIGHT’S NEGLIGENCE CAUSED THE FIRE. ON APPEAL, THE COURT UPHELD THE TRIAL COURT’S RULING THAT THE PARTY WHO SPOILS THE EVIDENCE HAS THE BURDEN OF PERSUADING THE TRIAL COURT THAT THERE WAS NO REASONABLE POSSIBILITY THAT THE OPPOSING PARTY WAS DEPRIVED OF FAVORABLE EVIDENCE.

C. EVIDENTIARY INFERENCES

ANOTHER RESPONSE BY COURTS DEALING WITH SPOLIATION OF EVIDENCE HAS BEEN TERMED THE SPOLIATION INFERENCE. WHERE SPOLIATION HAS OCCURRED, THE COURT CAN IMPOSE THIS SANCTION BY INSTRUCTING THE JURY THAT THE MISSING OR ALTERED EVIDENCE SHOULD BE PRESUMED TO HAVE BEEN UNFAVORABLE TO THE PARTY CAUSING ITS LOSS OR DESTRUCTION. AS MIGHT BE IMAGINED, THIS ADMONITION TO THE JURY CAN HAVE A DIRECT IMPACT ON THE VERDICT DECIDED BY THEM. THE APPLICATION OF THE INFERENCE IS INTENDED TO SERVE AS A DETERRENT, BY PLACING THE RISK OF AN ADVERSE JUDGMENT ON THE PARTY WHO CREATED THE PROBLEM.4 AS A GENERAL RULE, MOST JURISDICTIONS REQUIRE THAT THE CONDUCT RESULTING IN THE LOSS OR DESTRUCTION WAS INTENTIONAL AND IN BAD FAITH FOR THE INFERENCE TO APPLY.5

IN STATE OF OHIO V. STRUB, 355 N.E.2D 819 (OHIO APP. 1975), THE COURT STATED THAT IN A CRIMINAL CASE, ATTEMPTS TO DESTROY EVIDENCE INDICATE A CONSCIOUSNESS OF GUILT AND WHEN MADE BY THE DEFENDANT, ARE ADMISSIBLE AS EVIDENCE OF COMMITTING THE CRIME Nation-Wide Check Corp. v. Forest Hills Distributors, Inc., 692 F.2d 214, 218 (1st Cir. 1982). See, e.g., Gumbs v. International Harvester, Inc., 718 F.2d 88, 96 (3d Cir. 1983) (evidence accidentally destroyed does not give rise to adverse inference); Vick v. Texas Employment Comm'n, 514 F.2d 734, 737 (5th Cir. 1974) (destruction must be intentional act); INA Aviation Corp. v. United States, 468 F. Supp. 695, 700 (E.D.N.Y. 1979) (unfavorable inference arises against despoiler of evidence only if destruction intentional), aff'd without opinion, 610 F.2d 806 (2d Cir. 1979). CHARGED. THE COURT ALSO RECOGNIZED THE GENERAL RULE THAT THE INTENTIONAL SPOLIATION OR DESTRUCTION OF EVIDENCE RELEVANT TO A CASE RAISES AN INFERENCE THAT THE EVIDENCE WOULD HAVE BEEN UNFAVORABLE TO THE CAUSE OF THE SPOLIATOR. ACCORD, U.S. V. MENDEZ-ORTIZ, 810 F.2D 76 (6TH CIR. 1986).

D. INDEPENDENT TORTS

RECENTLY, COURTS HAVE ALLOWED LITIGANTS TO BRING INDEPENDENT ACTIONS FOR THE INTENTIONAL OR NEGLIGENT SPOLIATION OF EVIDENCE. FLORIDA FIRST RECOGNIZED THE EXISTENCE OF A CAUSE OF ACTION FOR NEGLIGENT DESTRUCTION OF EVIDENCE IN BONDU V. GURVICH, 473 SO.2D 1307 (FLA. 3RD DCA 1984), REV. DENIED, 484 SO.2D 7 (FLA. 1986). IN BONDU, THE COURT HELD THE PARTY WHOSE SPOUSE DIED DURING SURGERY WAS ENTITLED TO BRING SUIT AGAINST THE HOSPITAL AND ITS PHYSICIANS FOR THE TORT OF SPOLIATION WHEN THEY MISPLACED THE DECEASED SPOUSE’S MEDICAL RECORDS WHICH WERE CRITICAL TO A MEDICAL MALPRACTICE ACTION. FOLLOWING BONDU, THE COURT IN MILLER V. ALLSTATE INSURANCE CO., 573 SO.2D 24 (FLA. 3RD DCA 1990), SET FORTH WHAT HAS BECOME KNOWN AS THE FLORIDA APPROACH TO THIS CAUSE OF ACTION, WHICH ALLOWS A PLAINTIFF TO RECOVER EVEN WHEN DAMAGES ARE UNCERTAIN. THE PLAINTIFF IN MILLER COMMENCED A BREACH OF PROMISE ACTION AGAINST ALLSTATE FOR ITS FAILURE TO RETURN A WRECKED AUTOMOBILE TO HER -- INSTEAD SELLING IT TO A SALVAGE YARD, WHICH DESTROYED THE CAR -- WHICH WAS VITAL TO A PLANNED PRODUCT LIABILITY ACTION AGAINST THE MANUFACTURER. WHEN ALLSTATE ARGUED THAT IT HAD NO LEGAL DUTY TO MILLER BECAUSE OF THE UNCERTAINTY OF DAMAGES IN THE CONTEMPLATED PRODUCT LIABILITY SUIT, THE COURT POINTED OUT THAT WHEN THE DIFFICULTY IN ESTABLISHING DAMAGES IS CREATED BY THE DEFENDANT’S ACTIONS IN FAILING TO PRESERVE CRITICAL EVIDENCE, THE DEFENDANT, RATHER THAN THE PLAINTIFF, SHOULD BEAR THE CONSEQUENCES. THUS, RECOVERY MAY BE PERMITTED UPON A SHOWING THEY WERE “DEPRIVED OF AN OPPORTUNITY OR CHANCE TO GAIN AN AWARD OR PROFIT EVEN WHERE DAMAGES ARE UNCERTAIN.” MILLER AT 29.

IN CONTINENTAL INSURANCE CO. V. HERMAN, 576 SO.2D 313 (FLA. 3RD DCA 1990), DECIDED THE SAME DAY AS MILLER, THE 3RD DISTRICT COURT OF APPEALS SET FORTH THE ELEMENTS OF A CAUSE OF ACTION FOR A TORT CLAIM ALLEGING THE NEGLIGENT DESTRUCTION OF EVIDENCE: (1) THE EXISTENCE OF FACTS INDICATING A POTENTIAL CIVIL ACTION; (2) A LEGAL OR CONTRACTUAL DUTY TO PRESERVE EVIDENCE WHICH IS RELEVANT TO THE POTENTIAL CIVIL ACTION; (3) DESTRUCTION OF THAT EVIDENCE; (4) SIGNIFICANT IMPAIRMENT IN THE ABILITY TO PROVE THE LAWSUIT; (5) A CAUSAL RELATIONSHIP BETWEEN THE EVIDENCE DESTRUCTION AND THE INABILITY TO PROVE THE LAWSUIT; AND (6) DAMAGES.6 THUS, IN HERMAN, DESPITE THE FACT THAT THE INSURER NEGLIGENTLY FAILED TO PRESERVE THE PLAINTIFF’S VEHICLE SO IT COULD BE EXAMINED BY AN ACCIDENT The 4th DCA specifically recognized the spoliation of evidence cause of action and the criteria set forth in Herman in St. Mary’s Hospital v. Brinson, 685 So.2d 33 (1996) and Digiulio v. Prudential, 710 So.2d 3 (1998). RECONSTRUCTION EXPERT, SHE WAS NOT ENTITLED TO ANY RECOVERY AS SHE WAS STILL ABLE TO PROVE THE CAUSE OF THE ACCIDENT AND ULTIMATELY PREVAILED IN HER UNDERLYING NEGLIGENCE SUIT AGAINST THE OTHER DRIVER, EVEN WITHOUT THE VEHICLE AS EVIDENCE. OTHER COURTS HAVE SET FORTH THE ELEMENTS OF A CAUSE OF ACTION FOR THE TORT CLAIM OF SPOLIATION OF EVIDENCE. IN HOLMES V. AMEREX RENTA-A-CAR, 113 F3D 1285 (D.C. CIR. 1997), THE COURT DISCUSSED THREE DIFFERENT APPROACHES FOR THE DETERMINATION OF PROXIMATE CAUSE IN THIS TORT. IN ADDITION TO THE FLORIDA APPROACH, AS SET FORTH ABOVE, THE COURT RECOGNIZED THE OHIO APPROACH WHICH REQUIRES THE PLAINTIFF TO DEMONSTRATE THAT THE UNDERLYING CAUSE OF ACTION “WAS RENDERED IMPOSSIBLE BY THE DESTRUCTION OF THE EVIDENCE AND THAT THE EVIDENCE WAS OF SUCH NATURE THAT IT WOULD HAVE ENABLED THE PLAINTIFF SUCCESSFULLY TO PURSUE THE SEPARATE CIVIL ACTION AGAINST THE ALLEGED ORIGINAL TORTFEASOR.” TOMAS V. NATIONWIDE MUTUAL INSURANCE CO., 79 OHIO APP.3D 624, 607 N.E.2D 944. THE HOLMES COURT ALSO COMMENTED ON THE CALIFORNIA APPROACH, FOUND IN SMITH V. SUPERIOR COURT, 151 CAL.APP.3D 491, 198 CAL RPTR. 829 (1984), WHICH “REQUIRES THE PLAINTIFF TO DEMONSTRATE A ‘REASONABLE PROBABILITY’ THAT HE WOULD HAVE SUCCESSFULLY LITIGATED THE UNDERLYING CASE IF THE EVIDENCE HAD BEEN AVAILABLE.”

AN EXAMPLE OF THE DRASTIC CONSEQUENCES WHICH MAY RESULT FROM A PARTY’S FAILURE TO PRESERVE EVIDENCE IN ITS CUSTODY WAS DEMONSTRATED IN SPONCO MANUFACTURING V. ALCOVER, 656 SO.2D 629 (FLA. 3RD DCA 1995). THE PLAINTIFF IN THAT CASE SUED SPONCO, AMONG OTHER PARTIES, WHEN HE WAS INJURED IN A FALL WHILE USING A LADDER MANUFACTURED BY SPONCO. WHEN THE PLAINTIFF REQUESTED AN INSPECTION OF THE LADDER, WHICH SPONCO RETAINED IN ITS POSSESSION, IT WAS DISCOVERED SPONCO HAD DISCARDED THE LADDER. THE 3RD DCA AFFIRMED THE ENTRY OF A DEFAULT AGAINST SPONCO ON THE ISSUE OF LIABILITY WHEN THE PLAINTIFF DEMONSTRATED HE COULD NOT PROCEED WITHOUT THE EVIDENCE WHICH SPONCO HAD DESTROYED.

E. CRIMINAL STATUTES

ANOTHER POTENTIAL REMEDY FOR THE WRONGFUL DESTRUCTION OF EVIDENCE IS PROSECUTION UNDER FEDERAL AND STATE CRIMINAL STATUTES FOR OBSTRUCTION OF JUSTICE OR TAMPERING WITH EVIDENCE. HOWEVER, THE THREAT OF CRIMINAL PROSECUTION FOR SPOLIATION OF EVIDENCE IS LARGELY THEORETICAL, AS IT HAS RARELY BEEN PURSUED BY THE CRIMINAL JUSTICE SYSTEM, ESPECIALLY IF IT OCCURS IN THE COURSE OF CIVIL LITIGATION.

IN FLORIDA, §918.13, FLORIDA STATUTES, PROHIBITS THE ALTERATION, DESTRUCTION, CONCEALMENT, OR REMOVAL OF PHYSICAL EVIDENCE “KNOWING THAT A CRIMINAL TRIAL OR PROCEEDING OR AN INVESTIGATION BY A DULY CONSTITUTED PROSECUTING AUTHORITY, LAW ENFORCEMENT AGENCY, GRAND JURY OR LEGISLATIVE COMMITTEE OF THIS STATE IS PENDING OR IS ABOUT TO BE INSTITUTED.” THUS, IT APPEARS THERE IS NO CRIMINAL PENALTY IN FLORIDA FOR TAMPERING WITH EVIDENCE IN A CIVIL CASE. EVEN WHEN THE EVIDENCE THAT HAS BEEN ALTERED OR DESTROYED IS POTENTIAL EVIDENCE IN A CRIMINAL CASE, IT MUST HAVE BEEN DONE WITH AN IMPROPER PURPOSE TO “IMPAIR A CRIMINAL INVESTIGATION OR PROSECUTION.”7 THUS, THE MAJORITY OF THE PROSECUTIONS BROUGHT UNDER THIS FLORIDA STATUTE TYPICALLY INVOLVE INDIVIDUALS SWALLOWING OR DISPOSING OF ILLEGAL DRUGS IN AN ATTEMPT TO CONCEAL THEM FROM LAW ENFORCEMENT AS THEY ARE ABOUT TO BE APPREHENDED.

III CONCLUSION

SPOLIATION SHOULD BE A MATTER OF CONCERN TO EVERY ADJUSTER, INVESTIGATOR AND ATTORNEY INVOLVED IN FIRE LITIGATION CASES. WHEN SPOLIATION OCCURS, THE FIRST VICTIM IS THE TRUTH. ONLY BY PERMITTING AN OBJECTIVE ANALYSIS OF THE FIRE SCENE EVIDENCE BY BOTH SIDES CAN A FIRE INVESTIGATOR FULFILL THE MISSION OF BEING A TRUTH-SEEKER, RATHER THAN A CASE-MAKER. THE CONSEQUENCES OF IMPROPERLY DESTROYING OR FAILING TO PRESERVE EVIDENCE CAN BE SEVERE AND SHOULD SERVE AS A DETERRENT TO THOSE WHO FAIL TO CONSIDER THE IMPORTANCE OF THIS ISSUE. A RECOGNITION OF THE NEED TO CAREFULLY DOCUMENT THE FIRE SCENE AND TO COLLECT AND PRESERVE ALL State v. News-Press, 338 So.2d 1313 (Fla. 2nd DCA 1976) upheld dismissal of an indictment charging destruction of evidence brought against a reporter who destroyed tape recordings of a potential homicide witness in the absence of evidence pointing to an improper purpose in destroying the tapes or an intent to impair the criminal investigation. POTENTIALLY RELEVANT EVIDENCE WILL HELP TO AVOID THE PITFALL OF SPOLIATION.