Tom Brady & Spoliation of Evidence

Every lawyer in the country suddenly became a lot more interested in Tom Brady and the deflategate scandal. Yesterday the NFL revealed that Tom Brady purposely destroyed his cell phone less than 24 hours before he was to be grilled by the NFL. Tom Brady appears to be guilty of spoliation of evidence. Bet you never heard that word before!

Under Maryland law, spoliation is the intentional destruction of evidence, which could have been used in a trial. If it occurs in a Maryland trial, the Judge will read an instruction to the jury that allows them to presume this act is evidence of guilt! That is a very powerful instruction.

The Tom Brady case appears to be a textbook example of spoliation. I bet law professors will use it in the future to teach about this issue.

He clearly intended to destroy his phone, and he did it immediately before it could have been used against him. Why would he possibly do that other than to destroy evidence? Our legal system allows a fact finder (in this case Roger Goodell) to make a legal presumption that there was damning evidence on his phone, and therefore evidence of guilt.

This is a pretty rare legal issue in my experience. That is why I find it interesting. I almost cannot believe Tom Brady would be this stupid. The crime is relatively minor. Why make yourself look bad by covering it up? Maybe he should have asked Richard Nixon about this strategy! 

I heard commenters yesterday saying this is just “circumstantial” evidence. People use that as a way to deflect and deflate (!) otherwise good evidence. They usually have no idea what they are saying.

Circumstantial evidence is absolutely good evidence. It is used in courtrooms every single day to win trials, and send people to jail. If you don’t like using it, you would have to open up the jails and let 50% of the criminals back on the street.

Here is a good example of circumstantial evidence: When I went to sleep last night there was no snow on the ground. When I woke up, there was a blanket of snow, but the sky was clear. That blanket of snow is only circumstantial evidence that it snowed last night.

If I didn’t witness the snow falling from the air, then I cannot say with certainty that it snowed last night. I have no direct evidence. But I can infer it snowed by the fact snow is now on the ground and it wasn’t before. If that sounds reasonable to you, then you believe in circumstantial evidence.

So next time someone tries to get out of something by saying all you have is circumstantial evidence against them, don’t back down. Use that snowfall example and do your fact finding in spite of their attempts to wiggle out of the deed.

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