Wednesday, December 19, 2007


Today’s word is spoliation, Grasshopper.

Hey, wait! What are you doing here? Isn’t Spotty supposed to be the one giving us lectures about legal concepts?

Spot’s busy drinking water out of the toilet, Grasshopper, so calm down and listen.

Ok, ok. What’s that big word again?

Spoliation. It’s used in legal circles to describe the act of losing or destroying evidence by someone who is in the middle of a lawsuit or who can expect to be embroiled in one pretty quickly.

But wait, who would want to destroy evidence, Ms. Observer? Don’t you need evidence to prove your point in a trial?

Well, yes, Grasshopper, that’s true. It would be hard to show the jury how things happened without physical evidence about the event in question. But sometimes the evidence doesn’t always prove what you want it to prove. In fact, sometimes it’s downright damaging to your case.

What happens then? Do you get to pretend it’s not there or get rid of it?

No, that’s not supposed to happen. First of all, it’s wrong, violates all sorts of rules, and can even be a criminal act. But sometimes evidence gets lost or destroyed anyway. Sometimes innocently, sometimes not so innocently. Imagine if, say, your garage burned down and you are convinced it was because something in that car caught on fire and destroyed your garage. But – whoops! – you accidentally (or not so accidentally) junk the car before the folks from the auto manufacturer get a chance to have their people look at it to determine that it wasn’t that bad electrical component, but rather that cigarette you left burning in the car.

Wow, if I were the manufacturer, I’d be mad! I couldn’t defend myself! What happens then?

Usually what happens is that the judge at trial will tell the jury that there used to be a car, that the car (while under the control of the now garage-less plaintiff) was destroyed, and that they can draw an adverse inference from the fact that the car is gone and unavailable for inspection. That means that the judge will instruct the jury that they are free to assume that an inspection of the car would have revealed facts that would tank the plaintiff’s case. Our garage-less plaintiff will be able to argue that he didn’t mean to destroy the car, but the jury is free to laugh in his face and say, “Yeah, sure, pal.” Such cases do not turn out well for plaintiffs and this rule about “adverse inferences” actually serves as an incentive for people to preserve evidence, even evidence that is bad for them.

I think I see why, but I have one more question. Why is this all important to us, Ms. Observer?

Well, Grasshopper, you’ve undoubtedly heard that there are some videotapes that purport to show the torture of some Guantanamo Bay prisoners who were being interrogated, tapes that were destroyed back in 2005. Well, it appears that these tapes might have been destroyed after a judge presiding over a lawsuit brought by some Yemeni nationals challenging their incarceration ordered that such tapes be preserved.

So what does that mean?

Most judges don’t take very well to having their orders ignored or disobeyed. United States District Judge Henry H. Kennedy, Jr., the judge in this case, has set a hearing for 11 a.m. Friday to discuss the destroyed tapes. I’m glad I’m not the lawyer representing the United States going in to that hearing. Judge Kennedy might be kind of crabby.

Wow, so that means that if terrorism suspects get to trial and they claim that the people being tortured actually said “No, not him! He’s not a terrorist, he’s just a shoe repairman from Kabul!” there might be some problems?

Now I think you’re starting to understand, Grasshopper.

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