4.5-8 Tampering with or Fabricating Physical Evidence -- § 53a-155
Revised to November 17, 2015
The defendant is charged [in count ___] with tampering with or fabricating physical evidence. The statute defining this offense reads in pertinent part as follows:
a person is guilty of tampering with or fabricating physical evidence if, believing that (a criminal investigation conducted by a law enforcement agency / an official proceeding) is pending, or about to be instituted, (he/she) <insert as appropriate:>
§ 53a-155 (a) (1): (alters / destroys / conceals / removes) any (record / document / thing) with purpose to impair its verity or availability in such (criminal investigation / official proceeding).
§ 53a-155 (a) (2): (makes / presents / uses) any (record / document / thing) knowing it to be false and with purpose to mislead a public servant who is or may be engaged in such (criminal investigation / official proceeding).
For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:
Element 1 -
Criminal investigation or official proceeding
The first element is that the defendant believed that (a criminal investigation conducted by a law enforcement agency / an official proceeding) was pending or about to be instituted. It does not matter whether the (investigation / proceeding) was actually pending or not, as long as the defendant believed that it was. An "official proceeding" is any proceeding held or that may be held before any legislative, judicial, administrative, or other agency or official authorized to take evidence under oath, including any referee, hearing examiner, commissioner or notary or other person taking evidence in connection with any proceeding.
Element 2 - Tampering /
fabricating physical evidence
The second element is that the defendant (tampered with / fabricated) physical evidence. "Physical evidence" means any article, object, document, record or other item of physical substance that is or is about to be produced or used as evidence in an official proceeding.
Element 3 - Intent to deceive
The third element is that the defendant <insert as appropriate:>
(altered / destroyed / concealed / removed) any (record / document / item) with the purpose of impairing its verity or availability in such proceeding.
(made / presented / used) any (record / document / item) knowing it to be false and with the purpose of misleading a public servant holding the (investigation / proceeding).
The defendant must have acted with the specific purpose or intent of (impairing the verity or availability of the evidence / misleading and deceiving the public servant holding the official proceeding). A person acts with intent when (his/her) conscious objective is to cause such result.
In summary, the state must prove beyond a reasonable doubt that 1) the defendant believed that (a criminal investigation conducted by a law enforcement agency / an official proceeding) was pending or about to be instituted, 2) the defendant (tampered with / fabricated) physical evidence, and 3) the defendant <insert specific allegations of tampering/fabricating>.
If you unanimously find that the state has proved beyond a reasonable doubt each of the elements of the crime of tampering with or fabricating physical evidence, then you shall find the defendant guilty. On the other hand, if you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements, you shall then find the defendant not guilty.
Public Acts 2015, No. 211, § 15, amended this statute to add "a criminal investigation conducted by a law enforcement agency," effective October 1, 2015.
See generally State v. Foreshaw, 214 Conn. 540, 547-49 (1990) (instruction on official proceeding "that may be held" appropriately applied to defendant's conduct in disposing of murder weapon prior to her arrest when it could certainly have been contemplated by the defendant that a trial might ensue); see also State v. Jordan, 314 Conn. 354, 384 (2014) (reaffirming Foreshaw).
"[F]orgery in the second degree and
fabricating evidence are not the 'same offense' for double jeopardy purposes."
State v. Sorvello, 80 Conn. App. 313, 324 (2003), cert. denied, 267 Conn.