Posted on 12/17/18

We all take out the trash from our homes and businesses on a regular basis. There is nothing criminal about taking out the trash. In fact, it is encouraged in a civilized society. In some instances, however, taking out the trash can be criminal.

In a previous blog post, there was a discussion about spoliation, which is the crime of destroying or tampering evidence. This blog post will continue the discussion with a deeper dive into the crime of spoliation.

Elements of Spoliation

Based on the Texas Supreme Court case of Trevino v. Ortega from 1998, to be guilty of the crime of spoliation under Texas law, one must satisfy both of the following prongs:

  • The party in question had a reasonable duty to preserve evidence; and

  • The party that had the duty to preserve evidence breached that duty by purposely or negligently disposing of that evidence.

A 2013 Texas Appellate Court in the case Miner Dederick Construction, LLP v. Gulf Chemical & Mettallurgical Corp. clarified when the duty to preserve evidence is applicable. In that case, the Court stated that the duty to preserve evidence is when a party knows or should have reasonably known that there is a substantial chance that a claim will be filed and the evidence in question is relevant and substantial. This is based on the severity of the incident and other circumstances surrounding the case.


The application of this duty to preserve evidence could manifest itself in many ways. If there is a murder in the woods and the murderer and his or her accomplices come back after the murder to dispose of the body, such spoliation of evidence is clearly criminal spoliation.

On the other hand, if a child goes to a crime scene and was unaware of any crime and takes items from the crime scene, then that is not spoliation under Texas law. Circumstances dictate.

It becomes difficult to determine spoliation when dealing with degrees of what the party spoliating the evidence should have known. As mentioned, throwing out trash, by itself, is not criminal. Going into a structure where a known crime occurred and just taking things for fun can be spoliation if the party destroying evidence should have known about a substantial chance of that structure containing evidence of a crime.

The Court in the Dedrick Construction case noted that destroying evidence in the course of business, by itself, is not a sufficient reason to not be liable for spoliation.

The 2014 Texas Supreme Court case of Brookshire Brothers v. Jerry Aldrige further clarifies when a charge of spoliation is applicable. If a court finds that a party committed spoliation. i.e. that it satisfied both prongs of the spoliation test, a court can only provide a jury with a spoliation instruction if it satisfies both spoliation prongs above and the spoliation deprived the non-spoliating party the meaningful ability to present a claim or defense.

That is to say, even if spoliating evidence, there is no guilt unless the other party has no other way to make a claim or defend itself. Even if a party moves a body, the prosecution may have other ways of presenting evidence. It depends on circustances.

Accused of a crime? Speak with the criminal defense firm of Christopher Abel.

(image courtesy of Thomas Dils)

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