4 ms·

Just let the plaintiff or prosecuter decide what evidence they would have liked to find and instruct the jury to assume it was found. This would never happen ag

Just let the plaintiff or prosecuter decide what evidence they would have liked to find and instruct the jury to assume it was found. This would never happen again anywhere.

jefftk 4y ago
The issue here is that companies are not generally required to retain a records indefinitely, and if something was deleted as part of a standard retention policy (instead of specifically because of its contents) the normal "assume the worst" policy doesn't apply. Which is, I think, why lawyers are excited about a default of having a short retention period. On the other hand, litigation generally comes with needing to put your deletion policy on hold, and it sounds like that didn't happen here?
gameman144 4y ago
This seems like some insane government overreach, though. Like, make the penalties for destroying evidence super steep and criminally liable sure, but it seems pretty wild that you could be convicted of a crime without evidence. In that case, the government has an incentive to destroy evidence and its paper trail.
- shadowgovt 4y ago
  How would the government go about destroying evidence in a defendant's possession? (If you mean "Has the government failed to meet its burden of disclosure regarding evidence in its possession:" yes, it occasionally happens. The significant incentive against it is that it's immediate grounds for a mistrial and incredibly embarrassing to a prosecutor's office that has it happen on their watch).
- hugh-avherald 4y ago
  I don't want to alarm you but (a) it's definitely possible to be convicted of a crime without evidence and (b) the only things stopping "the government" fabricating evidence are the government officials themselves.
dragonwriter 4y ago
> Just let the plaintiff or prosecuter decide what evidence they would have liked to find and instruct the jury to assume it was found. We already have a form of that (and more). Rule 37(e) of the Federal Rules of Civil Procedure, permitting a court, when finding intentional destruction of electronic evidence that should have been preserved, to presume, and/or instruct the jury to presume, that the evidence was adverse to the jury or to summarily dismiss the claim or enter a default judgement (depending on which side destroyed the evidence). Literally, the court can decide “You destroyed evidence, you lose the case, game over”.

Just let the plaintiff or prosecuter decide what evidence they would have liked to find and instruct the jury to assume it was found. This would never happen again anywhere.

jefftk 4y ago

The issue here is that companies are not generally required to retain a records indefinitely, and if something was deleted as part of a standard retention policy (instead of specifically because of its contents) the normal "assume the worst" policy doesn't apply. Which is, I think, why lawyers are excited about a default of having a short retention period. On the other hand, litigation generally comes with needing to put your deletion policy on hold, and it sounds like that didn't happen here?

gameman144 4y ago

This seems like some insane government overreach, though. Like, make the penalties for destroying evidence super steep and criminally liable sure, but it seems pretty wild that you could be convicted of a crime without evidence. In that case, the government has an incentive to destroy evidence and its paper trail.

shadowgovt 4y ago
How would the government go about destroying evidence in a defendant's possession? (If you mean "Has the government failed to meet its burden of disclosure regarding evidence in its possession:" yes, it occasionally happens. The significant incentive against it is that it's immediate grounds for a mistrial and incredibly embarrassing to a prosecutor's office that has it happen on their watch).
hugh-avherald 4y ago
I don't want to alarm you but (a) it's definitely possible to be convicted of a crime without evidence and (b) the only things stopping "the government" fabricating evidence are the government officials themselves.

dragonwriter 4y ago

> Just let the plaintiff or prosecuter decide what evidence they would have liked to find and instruct the jury to assume it was found. We already have a form of that (and more). Rule 37(e) of the Federal Rules of Civil Procedure, permitting a court, when finding intentional destruction of electronic evidence that should have been preserved, to presume, and/or instruct the jury to presume, that the evidence was adverse to the jury or to summarily dismiss the claim or enter a default judgement (depending on which side destroyed the evidence). Literally, the court can decide “You destroyed evidence, you lose the case, game over”.