Also known as: adverse inferences · negative inference
Written by attorneys · grounded in primary & secondary sources — see below
A detrimental conclusion drawn by the fact-finder from a party's failure to produce evidence within the party's control or from the party's invocation of a privilege. Some courts require a showing of bad faith before permitting the inference.
Aaron Adams faces federal fraud charges and elects not to testify. His counsel timely requests a jury instruction directing that no adverse inference may be drawn from his silence. The court grants the request and instructs the jury accordingly.
During a civil enforcement hearing the defendant refuses to answer questions about financial records by invoking the Fifth Amendment. The court instructs the fact-finder that it may draw an adverse inference from the refusal to testify.
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Alice Atkins sues for breach of contract. When asked at deposition about related tax returns she invokes the Fifth Amendment. The court permits the jury to draw an adverse inference from her refusal to answer.
After receiving a document-preservation order the defendant destroys relevant emails. At trial the court finds the destruction unjustified and instructs the jury that it may draw an adverse inference about the contents of the missing evidence.
A newspaper refuses to identify its confidential source during a defamation trial. The plaintiff requests an adverse-inference instruction. The court grants the instruction after finding the refusal unjustified.
In a contract dispute the defendant fails to produce accounting ledgers shown to be in its exclusive control. The court permits the jury to draw an adverse inference that the records would have supported the plaintiff's claims.
A court may not instruct the jury that it may draw an adverse inference from a defendant's failure to testify. Upon timely request the defendant is entitled to an instruction that the jury must not draw any such inference.
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No. In civil proceedings a fact-finder may draw an adverse inference when a party refuses to answer on self-incrimination grounds.
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Courts usually require a finding that the party acted with intent to deprive the opposing party of the evidence or that the loss resulted from bad faith.
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…to money damages. Of course it is the Rule itself, not the Advisory Committee’s description of it, that governs. And a mere negative inference does not in our view suffice to establish a disposition that has no basis in the Rule’s text, and that does obvious violence to the Rule’s structural features. The mere “predominance” of a…