Catch 22 – when preserving the evidence is a crime but so is destroying it.

 Black & White Justice

What Do You Do When Preserving Evidence Is Labeled ‘Possession’ And Destroying It Is A Felony?
[Via Techdirt]

Have fun with this hypothetical. A shared computer is found to contain child porn. What do you do?

Houston criminal defense lawyer Mark Bennett considered this hypothetical from a defense lawyer’s standpoint. At this point, there is (possibly) no investigation already in progress (at least none the client or lawyer are aware of) and there’s no way to say definitively who’s responsible for the images. What do you tell your client?

It’s illegal for him to continue possessing the images. So you can’t advise him to do nothing (and keep breaking the law).

The smart thing for him to do would be to destroy the hard drive (if I could, I would recommend swisscheesing it with a drill press).

But tampering with evidence is illegal under both Texas and federal law. Is it a crime to destroy the hard drive? To advise the client to do so?

This isn’t entirely a hypothetical situation. Scott Greenfield’s blog details a 2007 case involving exactly this sort of situation.


For my lawyer friends – a shared computer is found to contain child porn. 

What to do? It is illegal to possess the child porn but also illegal to delete it. Are the authorities likely to believe you when you say the computer is shared and the porn is not yours?

Or will they simply take the easy route and charge you (ie you do possess the porn after you learn of its existence), letting the courts sort it out after your reputation is ruined?

What a hot potato. Man, after reading this, I would be very worried if I had any shared computers.