Witness Intimidation as Spoliation

From United States v. Manns, 2008 U.S. App. LEXIS 10016 (6th Cir. May 5, 2008) (unpublished), in which the defendant threatened the lives of two witnesses in statements — not to the witnesses — but to his cellmate:

We find unconvincing Manns's arguments that his alleged statement to Steven Tackett does not constitute admissible spoliation evidence and that its unfair prejudicial impact outweighed its probative value. "Spoliation is defined as the intentional destruction of evidence that is presumed to be unfavorable to the party responsible for its destruction." United States v. Copeland, 321 F.3d 582, 597 (6th Cir. 2003) (quoting BLACK'S L. DICT. 1401 (6th ed. 1990)). In United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986), cert. denied, 480 U.S. 922 (1987), we held that "[t]hough not listed in Rule 404(b), spoliation evidence, including evidence that defendant attempted to . . . threaten[] a witness, is admissible to show consciousness of guilt." Id. Since Mendez-Ortiz, we have reiterated that spoliation evidence regarding the defendant's threats to witnesses is admissible. See United States v. Blackwell, 459 F.3d 739, 768 (6th Cir. 2006), cert. denied, U.S. , 127 S. Ct. 1336 (2007); Copeland, 321 F.3d at 597; United States v. Fortson, 194 F.3d 730, 737 (6th Cir. 1999); United States v. Maddox, 944 F.2d. 1223, 1230 (6th Cir. 1991), cert. denied, 504 U.S. 961 (1992). *** By contrast, Manns's statement to his cellmate demonstrated his intent to destroy the evidence unfavorable to him (Tackett and Roberts's testimony) and thus satisfies the definition of spoliation evidence.

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