Also known as: adverse inference · adverse-inference · adverse inference rule
Written by attorneys — see sources below.
An inference drawn against a party from that party's failure to testify or produce evidence when called upon to do so. The inference treats the party's silence or nonproduction as probative of guilt, liability, or weakness in the party's position.
Andre Antoine stood trial for criminal negligence after a plant explosion. He elected not to testify because of pending civil suits. His counsel made a timely request for an instruction barring any adverse inference from his silence. The trial judge refused the request and gave the jury no guidance on the issue. The jury convicted Andre, and the appellate court held the refusal to be constitutional error.
Anika Anand faced hacking charges. In opening statement the prosecutor remarked that an innocent person would eagerly take the stand to explain events. Anika did not testify. Her counsel requested a no-adverse-inference instruction. The judge denied the request, and the jury convicted Anika.
In 1993, Johnny Lynn Old Chief was arrested following a fracas that involved at least one gunshot. The ensuing federal charges included not only assault with a dangerous weapon and using a firearm in relation to a crime of violence but violation of 18 U.S.C. § 922(g)(1). The earlier crime charged in the indictment against Old Chief was assault causing serious bodily injury. Old Chief's 1988 conviction arose from an incident in which he knowingly and unlawfully assaulted Rory Dean Fenner, resulting in serious bodily injury, in violation of federal law on an Indian reservation. He received a sentence of five years' imprisonment, as reflected in the order of judgment and commitment dated December 18, 1988. Before trial, Old Chief filed a motion asking the district court to bar the government from mentioning or introducing evidence of the name and nature of his prior conviction. He offered instead to stipulate that he had been convicted of a crime punishable by imprisonment exceeding one year and proposed a jury instruction stating that fact. The Assistant United States Attorney refused to join in a stipulation, insisting on his right to prove his case his own way, and the District Court agreed, ruling orally that, "If he doesn't want to stipulate, he doesn't have to." The district court denied the motion, ruling that the government was not required to stipulate. At trial, over renewed objection, the Government introduced the order of judgment and commitment for Old Chief's prior conviction. This document disclosed that on December 18, 1988, he "did knowingly and unlawfully assault Rory Dean Fenner, said assault resulting in serious bodily injury," for which Old Chief was sentenced to five years' imprisonment. The jury found Old Chief guilty on all counts. Old Chief appealed to the Ninth Circuit, which affirmed the district court's evidentiary ruling. The Supreme Court granted certiorari to resolve a split among the circuits on the admissibility of the details of prior convictions when a defendant offers to stipulate.
View caseAndrew Avery moved for discovery to challenge selective prosecution. The government produced lists showing thousands of nonblack defendants prosecuted for crack offenses. The district court drew an adverse inference from the government's failure to identify comparable white defendants. The inference supported the discovery order.
In April 1992, respondents were indicted in the Central District of California on charges of conspiring to possess with intent to distribute more than 50 grams of cocaine base (crack), conspiring to distribute the same, and related federal firearms offenses. Federal and local agents, using confidential informants, made a series of purchases of crack from respondents and observed firearms during several transactions. Respondents were arrested and evidence, including additional crack and a loaded gun, was recovered. In response to the indictment respondents moved for discovery or dismissal, alleging selective prosecution on racial grounds. They submitted an affidavit from a paralegal specialist at the Office of the Federal Public Defender stating that, in every one of 24 § 841 or § 846 cases closed by that office during 1991, the defendant was black, and a study listing those 24 cases with limited information about race and case status. The Government opposed discovery, noting that respondents offered no evidence that the Government had prosecuted nonblack defendants differently or had failed to prosecute them. The District Court ordered expansive discovery: a list of all cases from the prior three years in which the Government charged both cocaine and firearms offenses, the race of defendants in those cases, the levels of law enforcement involved, and the Government's criteria for deciding to prosecute federal cocaine offenses. The Government moved for reconsideration and submitted affidavits and other evidence explaining the basis for prosecuting respondents and disputing the inference of selective prosecution. Agents and an Assistant United States Attorney averred that race played no role in the investigation and that the case met ordinary prosecutorial criteria given the quantity of crack, multiple sales, firearms violations, strong evidence, and defendants' criminal histories. The Government also submitted a published DEA study discussing the dominance of particular groups in large-scale crack trafficking. The District Court denied reconsideration and, when the Government refused to comply with the discovery order, dismissed the indictment. A divided Ninth Circuit panel reversed; the en banc Ninth Circuit affirmed the dismissal, holding that a defendant need not show the Government failed to prosecute similarly situated others to obtain discovery. The Supreme Court granted certiorari to decide the appropriate standard for discovery on a selective-prosecution claim.
View caseAlexandra Armstrong and her codefendant stood trial for robbery and murder. The prosecutor commented on their failure to testify, and the judge instructed the jury that it could draw adverse inferences from their silence. The convictions rested in part on those comments and instructions.
Ruth Elizabeth Chapman and Thomas LeRoy Teale were convicted in a California state court upon a charge that they robbed, kidnaped, and murdered a bartender. Chapman was sentenced to life imprisonment and Teale to death. At trial both petitioners chose not to testify. The prosecutor took full advantage of a provision in the California Constitution allowing comment on a defendant's failure to testify, filling his argument to the jury from beginning to end with numerous references to their silence and inferences of guilt. The trial court also charged the jury that it could draw adverse inferences from petitioners' failure to testify. The trial took place before this Court decided Griffin v. California. On appeal the California Supreme Court acknowledged that petitioners had been denied a federal constitutional right by the comments on their silence but affirmed applying the State's harmless-error provision. The Supreme Court granted certiorari limited to these questions: where there is a violation of the rule of Griffin v. California, can the error be held to be harmless, and if so, was the error harmless in this case.
View caseArthur Abrams was called as a witness in his own criminal trial under New Jersey law. He refused to answer certain questions. The trial court permitted the jury to draw an adverse inference from his refusal. The state supreme court upheld the practice under the state constitution.
The plaintiff in error was indicted by the grand jury of Monmouth County, New Jersey, for the crime of having exhibited a false paper to the auditor of the township of Neptune, with intent to defraud the township. The indictment was of the second degree, setting forth in two counts the same offense in different language. The plaintiff in error was arraigned and pleaded not guilty. At the trial he was a witness in his own behalf. He was asked on cross-examination, and in the hearing of the jury, whether he had been convicted of any offense. To this question he made no reply. The judge instructed the jury that they might draw an inference of guilt from his silence. The plaintiff in error was convicted, and the judgment of conviction was affirmed by the Court of Errors and Appeals. After the judgment of the highest court of the State had been entered, the case was brought here by writ of error. It is assumed, in respect of each of the two defendants, that the jury were instructed that they might draw an unfavorable inference against him from his failure to testify, where it was within his power, in denial of the evidence which tended to incriminate him.
View caseAudrey Ashton remained silent after receiving Miranda warnings and did not offer an exculpatory story until trial. The prosecutor cross-examined her about the prior silence to imply recent fabrication. The trial court allowed the questioning, and the jury drew an adverse inference from the inconsistency.
Petitioners Jefferson Doyle and Richard Wood were arrested together in Tuscarawas County, Ohio, and charged with selling ten pounds of marijuana to William Bonnell, an informant working with the local narcotics unit. The evidence presented at their separate trials, held about one week apart in the Common Pleas Court, was identical in all material respects. Narcotics agents had arranged with Bonnell to set up a purchase using $1,320 collected from the unit, which Bonnell took to a bar in Dover, Ohio, where he met the petitioners. Subsequently, Doyle obtained the marijuana and met Bonnell and Wood at a parking lot in New Philadelphia, Ohio, where the transaction occurred under surveillance by four agents. After discovering they had been paid $430 less than agreed, Doyle and Wood chased Bonnell but were stopped by local police acting on instructions from the agents. Agent Kenneth Beamer arrived, arrested both petitioners, and administered Miranda warnings before a search of the car uncovered the $1,320. At trial, each petitioner testified that Bonnell had framed them by attempting to sell the marijuana to Doyle, who had changed his mind about the quantity, leading Bonnell to throw the money into the car and take the drugs back. During cross-examination, the prosecutor in each trial asked why the petitioner had not told this story to Agent Beamer at the time of arrest, and the trial court overruled defense objections to these questions. The Court of Appeals for the Fifth District affirmed the convictions, and the Supreme Court of Ohio denied further review before the United States Supreme Court granted certiorari.
View caseA criminal defendant who elects not to testify and makes a timely request is constitutionally entitled to an instruction that the jury must not draw any adverse inference from the failure to testify. The instruction protects the Fifth Amendment privilege by preventing the jury from treating silence as evidence of guilt.
Yes. A trial judge may instruct the jury not to draw an adverse inference from the defendant's failure to testify even when the defendant objects. The instruction is viewed as protective rather than prejudicial to the defense.
No. In civil and administrative matters a trier of fact may draw an adverse inference when a party refuses to answer on self-incrimination grounds. The constitutional prohibition applies only to criminal prosecutions.
…commented on the failure of the petitioners to testify. In addition, the trial judge instructed the jury that it could draw adverse inferences from the petitioners' failure to testify. These comments and instructions were proper under a provision of the California Constitution, Art. I, § 13, which until 1965 permitted such…