Jefferson Memorial D.C. - criminal defense lawyer

Tampering with Physical Evidence

It is against the law in Washington, D.C. to destroy evidence in connection with a criminal investigation. Specifically, D.C. Code § 22-723 makes it illegal to destroy, mutilate, conceal or remove a record, document or object in connection with an “official proceeding” if (1) the person knows or has reason to believe that an official proceeding has begun or is likely to be instituted and (2) the person intends to do so with the specific intent to reduce the item’s value as evidence or its availability for use as evidence.  In other words, it is not a criminal offense if you are unaware of the proceeding or if you have a different reason for destroying/altering the evidence.  

An “official proceeding” is defined to include “any trial, hearing, investigation, or other proceeding in a court of the District of Columbia or conducted by the Council of the District of Columbia or an agency or department of the District of Columbia government, or a grand jury proceeding.”  Mason v. United States, 170 A.3d 182, 190 (D.C. 2017).

The defendant in Timberlake v. United States, 758 A.2d 978 (D.C. 2000), was accused of trying to swallow two plastic bags containing heroin and cocaine to prevent police from recovering them.  The key issue in that case was whether or not the defendant knew that an “official proceeding” was likely to be instituted against him, as required by the statute.  

In finding for the government, the court pointed out that, considering the items that the defendant attempted to swallow were contraband, the defendant would have had a pretty good idea that he was either already under investigation or was about to be:  “in most of these cases, the tampering occurred when the appellant knew he or she was being investigated . . . or involved malum in se crimes from which it may be reasonable to infer the likelihood of an investigation from the nature of the crime.”  

Tampering with physical evidence is a felony offense.  The maximum penalty for a conviction is 3 years in jail and a fine of $12,500.  As such, it is jury-demandable.  The maximum penalty for attempted tampering with physical evidence is 180 days in jail and a $1,000 fine.

Tampering with physical evidence should not be confused with Obstructing Justice.