Also known as: adverse inference · adverse-inference · adverse inference rule
Written by attorneys · grounded in primary & secondary sources — see 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.
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Andrew 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.
Alexandra 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.
Arthur 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.
Audrey 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.
A 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…