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36 Emory L. J. 1085 (1987)
Truth and Uncertainty: Legal Control of the Destruction of Evidence

handle is hein.journals/emlj36 and id is 1103 raw text is: TRUTH AND UNCERTAINTY: LEGAL CONTROL OF THE DESTRUCTION OF EVIDENCE by Lawrence Solum* & Stephen Marzen** INTRODUCTION When Oliver North and Fawn Hall systematically shredded the docu- mentary record of North's involvement in the Iran-contra funding scandal, the search for truth was clouded by uncertainty.' In such situations, the legal system deploys a complex set of strategies that deal with the uncer- tainty in three ways: by attempting to restore accuracy, by compensating those whose legal rights are impaired by evidence destruction, and by punishing those who engage in such destruction. Despite a long history and recent doctrinal ferment, courts continue to disagree about the contours of doctrines controlling destruction of evi- dence. These doctrinal disagreements reflect an underlying confusion about truth and uncertainty-conceptual confusions which result in corre- sponding disagreements about the proper functions of doctrines controlling destruction of evidence. By identifying these confusions, this Article facili- tates development of a coherent legal response to destruction of evidence. This Article analyzes legal controls on evidence destruction in more or less six parts. Part I describes the rich variety of authority to control evi- dence destruction. In civil cases, the spoliation inference, discovery sanc- tions, tort liability, and criminal obstruction of justice statutes provide sanctions against destruction of evidence. In criminal cases, defendants face fines and imprisonment from federal and state evidence destruction and contempt statutes. Also in criminal cases, prosecutors who destroy ex- * Associate Professor of Law, Loyola Law School, Los Angeles, California. ** Associate, McKinsey and Company, Inc. Member of the New York Bar. The authors wish to thank Nancy C. Brown, Louise Epstein, Victor Gold, Andrew Kaufman, and Charles Nesson for comments on prior versions of this Article. A more detailed treatment of evidence destruction is presented in J. GORELICK, S. MARZEN & L. SOLUM, DEsrRUCTION OF EVIDENCE, forthcoming from Wiley Law Publications. ' North's secretary, Fawn Hall, has told the special prosecutor that she altered and destroyed documents by using her word processing system, that North used a shredder to destroy other docu- ments, and that in a final 'desperate, crazy' act, Hall physically removed documents detailing North's activities from his National Security Council office. See North's Ex-Secretary Tells of Destroying Data, L.A. Times, Feb. 23, 1987, at 4 col. 1.