Tampering with or destroying evidence is a crime in SC that can result in criminal charges including obstruction of justice, accessory after the fact to a crime, intimidation of court officials, or misprision of a felony. 

In this article, we will discuss the law of evidence tampering and destruction of evidence in SC, including:

• Criminal charges for tampering with or destroying evidence while a court case is pending, 
• Criminal charges for destruction of evidence post-conviction, and
• Ethical considerations for criminal defense attorneys related to the tampering with or destruction of evidence. 

Evidence Tampering in South Carolina

A person cannot be charged with or prosecuted for a crime without reliable evidence that proves the crime was committed – that’s motivation for the defendant or their accomplices to destroy evidence of a crime before the police can find it or before it can be presented to jurors.

When the accused, a friend, or a family member tampers with that evidence or destroys the evidence before it can be presented to a judge or jury, the attempt to tamper with or destroy evidence can become 1) evidence of a separate crime and 2) evidence of the defendant’s guilt in the original crime. 

This could include:

• Destroying evidence – flushing drugs down the toilet, for example, or burning clothing in the backyard, 
• Altering evidence – changing the date on a receipt, for example, or modifying the terms of a written document, 
• Concealing evidence – burying a body in the woods, for example, or removing DNA evidence from a crime scene, or
• Intimidating witnesses – bribing, threatening, or coercing a witness to change their testimony or a juror to vote not guilty. 

Criminal Charges for Tampering with or Destroying Evidence 

In most cases, a person who tampers with or destroys evidence during an investigation or while criminal charges are pending will be charged with obstruction of justice, but other criminal charges can result, including:

• Obstruction of justice: SC Code § 16-9-340 makes it a felony punishable by up to ten years in prison to 1) “intimidate or impede a judge, magistrate, juror, witness, or potential juror or witness” by force or 2) “destroy, impede, or attempt to obstruct or impede the administration of justice in any court.” 
• Influencing a juror: SC Code § 16-9-350 makes it a misdemeanor punishable by up to six months in prison for any person to attempt to influence a juror or prospective juror in a case, by written or verbal communication, whether it is in person or through a third party. 
• Misprision of a felony: It is also a crime to deliberately conceal one’s knowledge of a felony that has been committed, for example by destroying evidence of the felony. 
• Accessory after the fact: When someone “harbors or assists the principal felon … for the purpose of enabling the principal felon to escape detection or arrest,” they can be charged with accessory after the fact – this could include situations where a person destroys, hides, or tampers with evidence to help the person who committed a crime to evade arrest or conviction. 

In most cases, a person who attempts to destroy evidence of a crime in SC will be charged with obstruction of justice under § 16-9-340. 

In one example, law enforcement entered an apartment to arrest a suspected prostitute. As the police entered the room, she took her cell phone and smashed it to prevent law enforcement from seeing her contacts and messages on the phone. 

Because of the attempted destruction of evidence, the defendant was then charged with obstruction of justice – a ten-year felony in General Sessions Court – instead of simple prostitution, which would have been a 30-day misdemeanor in the city court, and the police were still able to extract the data from her cell phone.

Ethical Considerations for Criminal Defense Attorneys

Imagine a criminal defense attorney’s phone rings, and, when they pick up, they hear a distraught mother on the other end of the line – they have found a large bag of cocaine in their son’s bedroom, and they are afraid the police will find it. 

What should they do? 

Situations like this are a potential trap for criminal defense lawyers, and every attorney should think carefully before answering. The first rule of criminal defense ethics is the attorney should not be the one to go to jail.

An attorney cannot 1) advise someone to destroy evidence or 2) advise someone as to how to commit a crime or cover up a crime. In most cases, an attorney also cannot take custody of the evidence and conceal it in their law office. If they do, the attorney can be arrested and charged with obstruction of justice, accessory after the fact, or misprision of a felony. 

In any situation where there is the potential for destruction of evidence or concealment of a crime, the criminal defense attorney must answer carefully, referring to the ethics rules that govern attorneys and consulting an ethics expert when needed. 

Evidence Tampering or Destruction of Evidence Post-Conviction

So far, we’ve discussed the destruction of evidence or tampering with evidence during an investigation or while a criminal case is pending in court. There is also a SC statute that deals with the willful destruction of evidence post-conviction. 

The SC Preservation of Evidence Act requires that law enforcement preserve biological evidence related to serious offenses like rape and murder – after a conviction – for potential post-conviction testing to establish an inmate’s innocence. 

SC Code § 17-28-350 says that if a person “wilfully and maliciously destroys, alters, conceals, or tampers with physical evidence or biological material that is required to be preserved pursuant to this article with the intent” to prevent the use of evidence in a subsequent court proceeding, they are guilty of a misdemeanor that carries up to one year in prison. 

This statute does not apply to pre-conviction evidence, and it is rarely if ever used. First, the crime has multiple built-in defenses, requiring proof beyond a reasonable doubt that:

1. The destruction was willful,
2. The destruction was malicious, 
3. The evidence was required to be preserved pursuant to the Preservation of Evidence Act, and
4. The person intended to prevent the use of the evidence in court proceedings. 

Second, the statute is aimed at law enforcement officials (because the evidence will most likely remain in the custody of law enforcement after a conviction), which makes it unlikely that 1) other law enforcement officials will make an arrest or 2) prosecutors will vigorously prosecute the case. 

Questions About Destruction of Evidence Charges in SC? 

Lexington, SC criminal defense lawyer Kent Collins will investigate your charges, answer your questions, and do everything legally and ethically possible to get your case dismissed, win your case at trial, or find a resolution that is fair and reasonable. 

Get in touch with Kent by phone at 803-808-0905 or use this form to reach him online to schedule your in-person consultation.