When is a Haircut Spoliation?

In Rainey v. State, No. 3094, __ Md. App. ___ (Sept. 28, 2021), a defendant in a criminal case spoliated evidence when he got a haircut after the crime, but before his arrest.  Mr. Rainey was charged with murder.  An eyewitness and surveillance video showed that a man with dreadlocks was involved.  The Court wrote that: “Rainey abruptly disappeared for a month after the shooting. And when he finally returned, he had his hair cropped closely to the skull instead of shoulder-length dreadlocks.”

For a January 2002, update, please see: When is a Haircut Spoliation? Certiorari Granted. – E-Discovery LLC (ediscoveryllc.com)

Roughly a month after the shooting, the eyewitness “saw the shooter on the street, now with a short haircut. She called 911, and the police arrested Rainey.”  At trial, the witness testified that she “heard a series of four booms. She saw the man with dreadlocks with his arm raised and the other man lying in the alley. The man with dreadlocks looked up and down the street and then ran off. Ms. Creighton walked over and saw that the other man was dead in the alley.”

The State requested a destruction-of-evidence instruction based on Mr. Rainey’s changed appearance.  The Judge charged the jury that concealment or destruction of evidence “is not enough by itself to establish guilt, but may be considered as evidence of guilt.”  The charge stated that concealment may be motivated by a number of factors, “some of which are fully consistent with innocence.”  However, the jury was also charged: “If you find that the Defendant destroyed or concealed evidence in  this case, then you must decide whether that conduct shows a consciousness of guilt.”

Mr. Rainey appealed.  The appellate court found no error in the jury instruction concerning concealment or destruction of evidence “when the evidence established that the defendant had altered his appearance by cutting off his long hair.”  The Court concluded: “In our judgment, these facts would permit the jury to infer, (1) from Rainey’s change in appearance, a desire to conceal evidence; (2) from a desire to conceal evidence,  a consciousness of guilt; (3) from a consciousness of guilt, a consciousness of guilt of the murder of Dartania Tibbs; and (4) from a consciousness of guilt of the murder of Dartania Tibbs, actual guilt of the murder.”

Similarly, the Maryland Court of Appeals has held that “unfriending” may be evidentiary.  See  Blog  “Unfriending” Evidence – Maryland Follows “Reasonable Juror” Standard in Authentication of Social Media – E-Discovery LLC (ediscoveryllc.com).

The Rainey Court explained that concealment and destruction of “evidence” is a term of art and has a defined meaning in this context:

When a person has destroyed or concealed “evidence,” the word “evidence” often means something different from the word “evidence” as it is defined in MPJI-Cr[1] 3:00. Under MPJI-Cr 3:00, “evidence” is limited to information that is presented to the jury – testimony, exhibits, stipulations, depositions, and facts of which the court takes judicial notice. But if something of evidentiary value is completely destroyed before the trial even begins, so that the jury never has the chance to consider it, it cannot be “evidence” under the definition in MPJI-Cr 3:00. Similarly, if something of evidentiary value is concealed so effectively that it is never presented to the jury, it cannot be “evidence” within the meaning of MPJI-Cr 3:00. For example, if the defendants have shredded all the inculpatory documents and erased the hard drives that contain evidence of their crimes, or hidden all of the documents and hard drives in some inaccessible location, they have undoubtedly destroyed or concealed “evidence” in the ordinary sense of that term; they have not, however, destroyed or concealed “evidence” as that term is defined in MPJI-Cr 3:00, because they have prevented the jury from being able to consider what they destroyed or concealed. MPJI-CR 3:26 [which addresses concealment or destruction of “evidence”] would have little utility if the word “evidence” in that instruction meant the same thing as the word “evidence” in MPJI-Cr 3:00.  [Emphasis added].

Similarly, in civil litigation, there is a difference between relevance for discovery and relevance for spoliation sanctions.  See Blog, There Is a Difference Between Relevance for Discovery and Relevance for Spoliation Sanctions – E-Discovery LLC (ediscoveryllc.com)

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[1] “MPJI-Cr” is Maryland Pattern Jury Instruction – Criminal.