American criminal courts have continued to recognize the validity of such evidence, consistently allowing into evidence facts that tend to establish an accused’s consciousness of guilt. In federal criminal courts, evidence of an accused’s consciousness of guilt is admitted under Federal Rule of Evidence 404(b). Rule 404(b) expressly allows the use of evidence of other crimes, wrongs, or acts for purposes of proving things other than character or propensity to commit crime (such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident). While rule 404(b) does not expressly list consciousness of guilt as a permissible purpose for introducing evidence of other crimes or acts, the list of factors articulated within the language of the rule is illustrative rather than exclusive. Accordingly, other crimes, wrongs, or acts are admissible for other purposes—such as demonstrating consciousness of guilt.
This same theory also has expanded into civil litigation. And so lets identify those acts by M that showed motive, intent, preparation, plan, knowledge, absence of a mistake or accident.
Foremost is the destruction of our software, our programs written to generate reports. Those programs were not found on M’s active computer at the time he turned it over, nor were they found on anyone of our servers. M testified that they did not exist. His witness, Chris Cox, testified that the programs did exist and where they could be found. But they were not found after M was terminated. Not by our Foxpro experts. Not by the forensics experts. Because those servers were backed up, eliminating the programs from those servers took planning. In order for the programs to be deleted without evidence meant that they were removed at the time the back up files were saved. And that the back up files were written over replacing the prior files. We had backup files going back only three months.
In order to eliminate the foot print of a program, you have to plan on removing the digital footprint over time. Deleted files can be found for a while. It takes planning, it shows intent to cause the shutdown, it reveals preparation and the absence of a mistake. Recall that Chris Cox said that he regularly used the very program files that M claimed did not exist. I talked to Chris about this and he confirmed that if M testified that there were no programs, then that was a lie. He confirmed it takes days to recode.
What behaviors suggest or show that there was a consciousness of guilt? Most prevalent in this analysis is that M reformatted the 2nd hard drive, the 120 gig hard drive, hours before he turned it over. No one but M had ever used that hard drive. The Foxpro programs had been found there, but not in time to avoid the shutdown. They had been both deleted and destroyed with the reformatting. There was not reason to reformat the hard drive. That was an act that reflects consciousness of guilt.
We brought a programmer in when we had to shut down. We brought that person in to rewrite the programs because Chris Cox could not generate the reports. He claimed at the time that he could not find the programs. That was confirmed by Jaime Gedye, our outside programmer who looked and could not find the Foxpro and other programs. Thus the shutdown. In talking to Chris, he again does not recall the shutdown and as we talked about it he seemed genuine in his recollection. He does not recall not being able to pull reports. Two of our clients, three of our executives, one Foxpro consultant and two forensic experts agreed there was a shutdown. Even Max does not refute the shutdown. I can’t account for Chris’ memory lapse on this but believe it is what he recalls.
Chris’ inaccurate memory about the shutdown takes us no where. It is self serving. This supports a conclusion that he assisted with the removal of the programs, perhaps in some act of solidarity with Max. He claimed to use them frequently. And yet there were no remnants of Foxpro programs on any of the servers, nor on that back up tapes. So says the forensic experts, even M’s expert. Chris left right after M left. To this day I don’t know what the purpose of the collusion was. The destruction of the programs was a Computer Fraud and Abuse Act violation. According to the arbitrator, we failed to preserver the evidence. Digital evidence is typically not the only evidence in a trial. Remnants of these files can be found ten years after the fact, except on our servers–5 in all.
M did not have an email account on the active computer hard drive he returned to us on his last day. No emails were found by the experts. An email account was set up the day before he returned the computer. All of his emails from May through November were maintained on a different computer, one that he did not turn over. One that he destroyed. This is an act of consciousness of guilt, showing intent, planning and preparation, knowledge and motive. M produced selected emails from a source not known to us for the period May through November. This series of acts goes to his intent to destroy the email he received terminating his employment, his evidence of wrong doing and the fabrication of evidence.
M did have an email account on the hard drive that he used up to May 2003. But the email account was deleted and the hard drive reformatted the day before he returned the hard drive. This is an act of consciousness of guilt, as to his conversion of a hard drive for personal use and the existence of Foxpro programs to generate reports.
For almost 5 years M would not identify the person he claimed generated the spreadsheet evidence. The person he identified denied it of course. M did not request to examine forensically the computers of that person, where he alleges the spreadsheet was generated. We still had the computer at the time of the hearing. Not requesting to do forensic examinations on that material was a conscious act of guilt. The spreadsheet was not ever corroborated.
By contrast we did not destroy evidence…not a single computer, not a single email. Our back up tapes were retained.
We fell short a little bit, but the effects were inconsequential. We were not told to replace 10 hard drives or to have a forensic expert take digital images. We did forensic images about 18 months after the shutdown. M’s team did not request an opportunity to take digital forensic images for six years. M destroyed his computers. He destroyed his emails. He destroyed Foxpro programs by reformatting a hard drive. Programs were gone. And yet we were the bad guys, according to the arbitrator.
It is hard to reconcile holding us to a very high standard and holding M to no standard at all. Our mistakes showed no guilt. Max’s behavior showed consciousness of guilt on many points.