1. (1) A person commits the offense of tampering with or fabricating physical evidence if, believing that an official proceeding or investigation is pending or about to be instituted, the person:
2. (a) Destroys, mutilates, conceals, removes, or alters physical evidence with intent to impair its verity or availability in the pending or prospective official proceeding or investigation; or
3. (b) Makes, presents, offers, or uses any false physical evidence, knowing it to be false, with intent that it be introduced in the pending or prospective official proceeding or investigation, or with intent to mislead a public servant who is or may be engaged in the pending or prospective official proceeding or investigation.
4. (2) For the purposes of this section, "physical evidence" includes any article, object, document, record, or other thing of physical substance.
5. (3) Tampering with or fabricating physical evidence is a misdemeanor.

[L 1972, c 9, pt of §1; gen ch 1993; am L 2024, c 242, §2]

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."

Act 242, Session Laws 2024, amended this section to align the criminal offense of tampering with physical evidence with the wording of the Model Penal Code for tampering with or fabricating physical evidence. The legislature found that existing laws addressing the tampering of physical evidence omitted several phrases from the corresponding offense in the Model Penal Code. The legislature additionally found that tampering with physical evidence could take many forms beyond what was provided in existing law, and the legislature believed that the Model Penal Code wording for the corresponding offense encompassed those forms. Accordingly, the legislature noted that Act 242 would increase the probability that evidence will be accurate and credible by increasing the scope of when tampering with physical evidence is an offense and making the fabrication of physical evidence an offense. Conference Committee Report No. 15-24, House Standing Committee Report No. 1460-24.

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§710-1076 Commentary:

1. H.R.S. §725-4.

2. Id.

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