Why Deleting Evidence Could Be Your Worst Court-Martial Mistake

What you should not do with the evidence on your electronic devices.

Important Disclaimer: Please be aware that the information presented in this blog post is intended for general informational purposes only and should not be construed as legal advice. While we aim to provide valuable resources for military justice attorneys and the public, no blog post can replace personalized legal counsel from a qualified attorney. If you are experiencing legal issues or need specific guidance, we strongly encourage you to consult a legal professional who can address your circumstances.

Having been in military justice for over 25 years, I have witnessed this scenario repeatedly: a service member, panicked and overwhelmed by an accusation of a crime, deletes emails, text messages, photographs, or other potential evidence. Although this may seem the right choice, it can significantly worsen your situation. Deleting possible evidence can result in serious legal consequences, including additional charges, and may even jeopardize your chances of proving your innocence. This blog explains why deleting evidence is a dangerous mistake, how the law interprets it, and why preserving every piece of relevant information is critical to your defense.

What is Obstruction of Justice?

Obstruction of justice is a serious criminal offense. It occurs when someone interferes with the legal process by destroying or concealing evidence, intimidating witnesses, or otherwise hindering an investigation. Deleting emails, texts, photos, or other records relevant to your case may be seen as an attempt to obstruct justice.

Under the Uniform Code of Military Justice (UCMJ), obstruction of justice is taken very seriously and can result in severe penalties, including confinement, dishonorable discharge, and the loss of benefits. Even if you didn’t intend to obstruct an investigation, investigators or prosecutors might still interpret your actions that way.

The “Consciousness of Guilt" Argument

Deleting evidence can also be interpreted as a sign of a guilty conscience, legally known as "consciousness of guilt." This occurs when your actions imply—true or false—that you believe you are guilty of wrongdoing. For instance, if investigators find that you deleted incriminating text messages or emails, they might contend that you did so only because you feared those messages would prove your guilt.

Even if the evidence you deleted was completely innocent and irrelevant to the accusations, the mere act of deleting it could create the appearance of guilt. This could significantly weaken your defense and harm your credibility in the eyes of investigators, prosecutors, and even a court-martial panel.

Preserving Evidence Could Save You

On the flip side, that same evidence you’re tempted to delete could exonerate you. Emails, text messages, photographs, and other records can prove your innocence or provide important context supporting your case. For example:

- A text message could prove you weren’t at the location of an alleged incident.

- An email could show you did not know of or have involvement in the accusations against you.

- A photograph could contradict the timeline or facts presented by the prosecution.

- A video recording could show your presence elsewhere during the incident.

- A social media post could indicate that you were engaged in a different activity at the relevant time.

- GPS data from your phone could verify your location at the time in question.

Deleting this evidence not only removes your ability to use it in your defense, but also increases the likelihood that the other party, or the government, will control the narrative with whatever evidence they have.

The Government Can Still Recover Deleted Evidence

In the digital age, attempts to delete evidence may be in vain, as various forensic and data retrieval methods employed by law enforcement can effectively uncover deleted information, revealing a deeper layer of accountability and potential consequences.

1. Forensic Data Recovery: Law enforcement agencies utilize advanced forensic tools that can recover deleted files and messages from devices. For instance, even if you deleted text messages, a digital forensic expert could retrieve them from your phone's memory or storage area.

2. Cloud Backup Retrieval: Many devices automatically backup data to the cloud. If your data syncs to a cloud service, you might still access deleted items through that backup, allowing the prosecution to recover deleted information.

3. Device Logs: Computers and phones often record logs of activities, including file access and deletions. If law enforcement reviews these logs, they may find that someone deleted files shortly before a warrant's execution, implying an intent to destroy evidence.

4. Witness Testimonies: Sometimes, colleagues, friends, or family might know about the deleted evidence or have copies of it. They can be called to testify, potentially revealing the existence of the information that you tried to destroy.

5. Social Media and Communication Apps: Even after deleting messages from a device, if communications occurred through platforms like Facebook or WhatsApp, the prosecution may access their servers to retrieve those messages, as they often retain copies of user communications.

Another service member, a civilian, or an organization may still have access to the same messages, emails, or photographs you deleted. This means your attempt to erase the evidence may ultimately be futile, and it can cause more harm than good.

What You Should Do Instead

If you’re being investigated or accused of a crime, the best action you can take is to seek legal counsel immediately. A qualified military defense attorney can assist you in navigating the situation, safeguarding your rights, and constructing a robust defense. Instead of deleting evidence, follow these steps:

1. Preserve all communications and records. Save emails, texts, photographs, and any other relevant information, even if you think it might make you look bad. Your attorney can determine what is and isn’t relevant to your defense.

2. Avoid discussing the case. Do not discuss the allegations or potential evidence with anyone but your attorney, as those conversations could be used against you. It is also important to remember that sometimes, even well-intentioned relatives may attempt to interfere by destroying what they believe to be damaging evidence, thinking that their actions will help you. However, this misguided attempt to assist only complicates the situation and ultimately can lead to more harm than good. Always consult with your lawyer before taking any action regarding your case to ensure you're making decisions that are truly in your best interest.

3. Stay calm. Deleting evidence often stems from fear or panic, leading individuals to make impulsive decisions that may harm their legal standing. For example, if someone is being questioned by law enforcement about a potential crime, they might instinctively delete incriminating messages or photos from their phone out of fear of repercussions. However, acting in such haste can worsen the situation. Instead, it is crucial to remain composed and understand that your attorney is there to protect you, guiding you through the legal process and ensuring your rights are upheld. By maintaining calm, you can make informed decisions and provide your attorney with all necessary information, which can be critical in building a vigorous defense.

Deleting digital evidence might seem like a tempting and immediate solution to alleviate your legal difficulties. Still, it is, in reality, one of the severest errors you could commit when confronted with criminal allegations as a service member. This seemingly harmless act can lead to severe repercussions, such as charges of obstruction of justice. Moreover, it can show your consciousness of guilt, a powerful argument against you in a court of law.

By erasing or tampering with evidence, you not only hinder the legal process but also eliminate the opportunity to utilize potentially exonerating information that could support your defense. This crucial information could decide between acquittal and conviction, making the stakes incredibly high in military justice. Every decision you make carries significant weight in this demanding and often unforgiving environment. Therefore, it is essential to weigh your actions and act wisely, recognizing that maintaining transparency is much more beneficial than resorting to desperate measures that could damage your case position.

Do not navigate this journey alone if you are under investigation or facing charges. Consult with an experienced military defense attorney who can guide you through the process, protect your rights, and help you achieve the best possible outcome.