In general
• The manufacture, destruction, or suppression of evidence may properly be considered by the jury as an admission of the defendant's guilt or his guilty knowledge.
Larry v. State, 716 N.E.2d 79, 81 (Ind. Ct. App. 1999)(citing Scifres-Martin v. State, 635 N.E.2d 218, 220 (Ind. Ct. App. 1994), trans. denied)
See Grimes v. State, 450 N.E.2d 512, 521 (Ind. 1983)(citing Washington v. State, 402 N.E.2d 1244, 1248 (Ind. 1980))(“Any testimony tending to show an accused's attempt to conceal implicating evidence or to manufacture exculpatory evidence may be considered by the trier of fact as relevant since revealing a consciousness of guilt.”)
See also Matthew v. State, 337 N.E.2d 821, 824 (Ind. 1975), reh’g denied(citing Perfect v. State, 141 N.E. 52, 55 (Ind. 1923))(“Evidence of efforts to manufacture or suppress evidence is competent as a circumstance against a defendant.”)
See also Stone v. State, 555 N.E.2d 475, 477 (Ind. 1990)(“Attempts to conceal evidence may be considered by the jury as revealing consciousness of guilt.”)
Proper foundation for admissibility
• Since the defendant is the person who could primarily benefit from the obstruction of justice, the inference is strong that he or she was the one who procured the obstruction of justice when the evidence of it is introduced at trial.
Scifres-Martin v. State, 635 N.E.2d 218, 220 (Ind. Ct. App. 1994), trans. denied(citing Keyser v. State, 312 N.E.2d 922, 924 (Ind. 1974))
• Therefore, a proper foundation must be laid showing that the evidence of a cover-up was done either by the defendant or with his or her knowledge or authorization.
Scifres-Martin v. State, 635 N.E.2d 218, 220 (Ind. Ct. App. 1994), trans. denied(citing Cox v. State, 422 N.E.2d 357, 361-62 (Ind. Ct. App. 1981), trans. denied)
• Evidence of a cover-up admitted without the foundation linking the conduct to the defendant is highly prejudicial and constitutes reversible error.
Scifres-Martin v. State, 635 N.E.2d 218, 220 (Ind. Ct. App. 1994), trans. denied(citing Cox v. State, 422 N.E.2d 357, 362 (Ind. Ct. App. 1981), trans. denied)
• This type of evidence is so prejudicial that no jury can be expected to apply it solely to the question of the credibility of the witness, and not to the guilt of the defendant, and therefore, a trial court's admonishment to the jury or curative instruction will not serve to remove the resulting prejudice.
Scifres-Martin v. State, 635 N.E.2d 218, 220 (Ind. Ct. App. 1994), trans. denied(citing Cox v. State, 422 N.E.2d 357, 362 (Ind. Ct. App. 1981), trans. denied)
Examples
• The jury was also justified in taking into consideration the fact as testified to by the police officers that the [defendant] was wearing a nylon stocking on his head at the time he was arrested. That while he was being transported to the scene of the alleged crime he removed the stocking from his head and threw it out the window; had it not been for the alert action of a police officer who was following the car in which [the defendant] was riding, the stocking would not have been recovered. This action by the [defendant] could be considered by the jury as evidence of his guilt.
Poindexter v. State, 264 N.E.2d 605, 607 (Ind. 1970), reh’g denied(citing Reno v. State, 228 N.E.2d 14, 15-16 (Ind. 1967))
• The [defendant] correctly argues that evidence of a third person attempting to procure a witness' absence or influence testimony is admissible against the accused if he was “privy” to the advances.
Barnes v. State, 403 N.E.2d 331, 331 (Ind. 1980)(citing Eacock v. State, 82 N.E. 1039, 1044 (Ind. 1907))
• The evidence that [the defendant] called [his co-defendant] a “snitch” and beat him up was properly admissible to prove [the defendant’s] guilty knowledge or consciousness of guilt with respect to the charged crime.
Larry v. State, 716 N.E.2d 79, 81 (Ind. Ct. App. 1999)
• [I]n the present case, evidence that [the defendant] beat [a confidential informant], held a gun to his head, and asked [the confidential informant] what the Drug Task force “had on him” was properly admissible to prove [the defendant’s] guilty knowledge or consciousness of guilt with respect to the charged crimes.
Dean v. State, 901 N.E.2d 648, 652 (Ind. Ct. App. 2009), trans. denied(citation to the record omitted)