DESTROYING EVIDENCE
N.R.S. 199.220 governs the destruction of evidence. It states:
Every person who, with intent to conceal the commission of any felony, or to protect or conceal the identity of any person committing the same, or with intent to delay or hinder the administration of the law or to prevent the production thereof at any time, in any court or before any officer, tribunal, judge or magistrate, shall willfully destroy, alter, erase, obliterate or conceal any book, paper, record, writing, instrument or thing shall be guilty of a gross misdemeanor.
Understanding the Nevada crime of Destroying Evidence is just like understanding any other statute, it becomes very easy if you take it piece by piece. However, in this case, it will be easiest if we take the pieces out of order.
Then where do we start?
In this case, it is probably best if we start with what constitutes “evidence” under N.R.S. 199.220 so that you have an understanding of what exactly you are not allowed to destroy. The second-to-last part in N.R.S. 199.220 refers to evidence as “any book, paper, record, writing, instrument, or thing…” The exact “things” that may constitute ‘evidence’ is left intentionally vague so that prosecutors may decide, on a case-by-case basis whether they want to charge someone with destruction of evidence. Also, since it is impossible to know and list every single type of physical ‘thing’ that may eventually be used as ‘evidence,’ leaving the law vague allows for the variability of what prosecutors may find to be ‘evidence.’
However, this is not the whole story. This vague definition simply defines the types of things that may be evidence, it does not define what might actually make them become evidence. The bulk of N.R.S. 199.220 is devoted to how a ‘thing’ becomes evidence: a ‘thing’ may help reveal the commission of a felony, or the identity of a felon, or a ‘thing’ may speed up or assist in the administration of the law. In other words, any ‘thing’ that assists law enforcement and the prosecutor’s office to swiftly enforce the law can be considered ‘evidence.’ Once again, this makes for a vague statute, but one that is intentionally so. Prosecutors need to have the ability to decide what is considered ‘evidence’ based on the individual facts of each case, and a vague statute allows them to do so.
How can I know if I’ve destroyed evidence if the definition of what constitutes ‘evidence’ is so vague?
Fortunately, the definition of “destroy” is, in this context, much easier to understand. N.R.S. 199.220 states: “destroy, alter, erase, obliterate or conceal…” While this may seem like it is intentionally vague (and it is), it is also much easier to logically understand. If you have done anything to change the nature (destroy, alter, erase, obliterate), or to hide or obscure (conceal) anything that would be considered ‘evidence,’ then you have, by the definition of N.R.S. 199.220, ‘destroyed’ evidence.
I don’t understand, how can merely changing something be “destruction” of evidence?
In the context of destruction of evidence, “destruction” refers more to destroying the essential nature of the evidence, so altering or changing the ‘thing’ would, in essence, be destroying it. An example may help to illustrate this point:
A man is sitting in a coffee shop scribbling something on a piece of paper. After he leaves, the waitress picks up the paper and, without reading it, tears off a piece of the paper and sticks her gum in it to throw away. Later, the man commits a felony and it turns out that the scrap paper contained his written confession. Unfortunately, the waitress had torn off part of the confession and it now does not name the man or the felony he committed. While the confession was not completely destroyed (it was only torn in two pieces, if both were found, it could probably be put together and used), by tearing it into two pieces and throwing one piece away, the waitress altered the essential nature of the evidence, and thereby ‘destroyed’ what made it ‘evidence.’
That’s all it takes, to change or hide a piece of evidence?
Yes and no. Fortunately, the law regarding destroying evidence focuses on one idea that is stated in two different ways in the statute: “intent” and “willfully”. In other words, while it is true that you only need to change or hide a piece of evidence to have ‘destroyed’ it by law, it is not true that those are the only two requirements for you to be guilty of the crime of destroying evidence. There are actually two more elements to the crime, and both of them revolve around your ‘intent’ in destroying the evidence.
The third element is that you must have intended to “destroy, alter, erase, obliterate or conceal” the piece of evidence. In other words, if you accidentally destroyed or hid a piece of evidence, then you cannot be found guilty of destroying evidence. Going back to our earlier example, the waitress had no intent to destroy, alter or conceal that confession, so she cannot be held accountable for doing so.
The final element necessary in a destruction of evidence claim is the intent to conceal the commission of a felony, the identity of a felon, or to delay or hinder the administration of the law or prevent the production of evidence at any time. Again, going back to our example of the confession on a piece of scratch paper, it is clear that the waitress didn’t know that the paper contained a confession, so she could not have been intending to conceal the identity of the felon, or hindering the administration of the law. However, changing the facts a little and assuming that the waitress did read what the man had written, and saw that it was a confession. If the waitress did not believe that the confession was true, or thought that it was some kind of joke being played on her, then she still would not have the required intent to conceal the commission of a felony or identity of a felon, nor would she have had the intent to hinder the administration of the law.
I’ve been charged with destruction of evidence. What penalties am I facing?
Destroying evidence is a gross misdemeanor in Nevada, carrying a possible sentence of:
- Up to 1 year in a Clark County Detention Center, or other county jail; and/or
- Up to $2,000.00 in fines.
What if I didn’t mean to destroy evidence? Are there defenses I can raise?
Of course. As with any crime, there are a number of defenses that may apply to the specific facts of your case. Some of the most common defenses are:
- No Intent: As stated above, the crime of destroying evidence revolves around both the intent to destroy or alter the evidence, and the intent to do so in order to conceal a felony or the identity of a felon, or to hinder or delay the administration of the law. If the prosecutor cannot prove, beyond a reasonable doubt, that you had both of these required intentions, then the charges against you should be dropped or dismissed.
- Irrelevance: ‘Things’ that have no bearing on a felony, felon, or legal proceeding, are not ‘evidence’ as it relates to N.R.S. 199.220. If you have destroyed some ‘thing’ and the prosecutor has charged you with destruction of evidence, then the prosecutor will have to prove, beyond a reasonable doubt, that the ‘thing’ you destroyed was relevant to either the commission of a crime, or to the administration of the law. If the prosecutor cannot prove either of those, then the charges against you should be dropped or dismissed.
- Illegal Search or Seizure: As with any crime, if evidence against you was not obtained through the use of a validly obtained search warrant, or one of the exceptions to a search warrant, then the evidence against you should be suppressed, without which the prosecutor will likely have to drop the charges against you.
What should I do if I’ve been charged with destruction of evidence?
As with any crime, if you’ve been charged, then you should contact an experienced criminal defense attorney to discuss the specific facts of your case and determine if any of the defenses apply to you.
