Also known as: adverse presumptions · adverse inference
Written by attorneys · grounded in primary & secondary sources — see below
An evidentiary rule permitting a factfinder to infer that evidence or testimony a party failed to produce would have been unfavorable to that party. The rule applies when a party destroys evidence or refuses to testify on self-incrimination grounds in civil proceedings. It supplies a permissible inference rather than a mandatory presumption and operates only after the opposing party establishes a foundation for the missing material.
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Anthony Arnold stood trial on fraud charges and elected not to testify. His counsel filed a timely written request asking the court to instruct the jury that it could draw no adverse inference from his silence. The trial judge denied the request and gave no such instruction. On appeal the conviction was reversed because the Fifth Amendment entitled Anthony to the requested instruction once counsel made a timely demand.
Arcadia Retail sued a supplier for breach after discovering defective inventory. During discovery Arcadia could not produce its internal inspection logs that would have shown when the defects were first noticed. The supplier moved for an adverse-inference sanction. The court granted the motion and instructed the jury that it could infer the missing logs would have hurt Arcadia's position on the timing issue.
A non-testifying defendant is entitled to the instruction upon a timely request. The Fifth Amendment forbids the jury from treating silence as evidence of guilt once that request is made. The trial court must deliver the instruction and may not refuse it on the ground that it might highlight the defendant's choice not to testify.
Yes. In civil proceedings governed by uniform acts such as the Uniform Child Custody Jurisdiction and Enforcement Act and the Uniform Interstate Family Support Act, the trier of fact may draw an adverse inference when a party refuses to answer on Fifth Amendment grounds. The inference supplies a permissible evidentiary consequence rather than a criminal penalty.
…the server logs that may have indicated the actual duration of access to eBay 's system. eBay argues this should support an adverse inference against BE because eBay is unable to correlate BE’s access to eBay ’s system with service disruptions. BE responds that these actions were a result of hardware failures unrelated to the…
…he or she acted with due diligence with respect to the spoliated evidence. Id., at 777-78, 675 A.2d 829. We emphasized that the adverse inference
When a party intentionally destroys evidence, the factfinder may infer that the missing material would have been unfavorable to the spoliator. The inference arises only after the opposing party shows the evidence existed, was in the spoliator's control, and was destroyed without adequate explanation. Courts treat the inference as an evidentiary remedy rather than an independent tort in most jurisdictions.
Yes. A judicial statement that the defendant could have cleared up the facts by testifying invites the jury to treat silence as substantive evidence of guilt. Such a comment violates the Fifth Amendment even if the prosecutor made no similar argument. The proper remedy is ordinarily a mistrial when the remark reaches the jury.