§710-1076 Tampering with physical evidence. (1) A person commits the offense of tampering with physical evidence if, believing that an official proceeding is pending or about to be instituted, the person:

(a) Destroys, mutilates, conceals, removes, or alters physical evidence with intent to impair its verity in the pending or prospective official proceeding;

(b) Makes, presents, or offers any false physical evidence with intent that it be introduced in the pending or prospective official proceeding.

(2) "Physical evidence," as used in this section includes any article, object, document, record, or other thing of physical substance.

(3) Tampering with physical evidence is a misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §710-1076

Official proceedings rely on the integrity of physical evidence, in addition to the integrity of witnesses and jurors, to achieve equitable results. To allow the impairment or falsification of physical evidence would undermine greatly the fairness and impartiality of the judicial process.

This section makes it an offense both to conceal true evidence and to offer false evidence, since to do either would obviously misrepresent the truth which it is the object of the proceeding to determine. In both cases, the actor must have an intent that the concealment or falsification should have an effect in the proceeding. "Physical evidence" is defined principally to distinguish it from that evidence which is offered as testimony by witnesses.

Previous Hawaii law dealt with the offense of tampering with physical evidence under the general heading of supressing evidence.[1] The prior law provided that any person who "destroys, conceals, or suppresses any deposition or other legal evidence in any suit or proceeding..."[2] would be subject to a misdemeanor penalty. It had been held that the offense of suppressing evidence is not limited to judicial proceedings.3 The Code extends the law by specifically covering presentation or fabrication of false physical evidence and any form of tampering when it is believed an official proceeding is about to be instituted.

SUPPLEMENTAL COMMENTARY ON §710-1076

The Code as adopted differs from the Proposed Draft in that in subsection (1)(a) the words "or availability" were deleted after the word "verity."

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§710-1076 Commentary:

1. H.R.S. §725-4.

2. Id.

3. Territory v. Achuck, 31 Haw. 474 (1930).