Also known as: smoking-gun · smoking guns · conclusive evidence
Written by attorneys · grounded in primary & secondary sources — see below
A piece of physical or documentary evidence that conclusively impeaches an adversary on an outcome-determinative issue or destroys the adversary's credibility.
Steven Silva, appointed personal representative of his uncle's estate, receives a demand from a creditor alleging improper transfers. While reviewing files, Silva locates a deed showing the decedent conveyed valuable real property to an heir days before death without consideration. The deed serves as the smoking gun that allows Silva to bring an action to recover the property for administration and satisfy the creditor claims.
Simon Stern, an Arthur Andersen partner, receives an internal memo flagging a client's accounting irregularities. During a meeting, a subordinate picks up a document labeled with the words smoking gun and begins shredding it while stating the firm does not need the item. The labeled document becomes the smoking gun that prosecutors use to establish knowing obstruction of an investigation.
Select any source to read its text and confirm it supports the definition.
Samuel Soto, lead plaintiff in a class action against a technology firm, obtains internal emails showing executives knew revenue projections were fabricated. The emails supply the smoking gun that satisfies the requirement to plead a strong inference of scienter and defeats the motion to dismiss.
Spencer Silver, a corporate director negotiating a land sale on behalf of the company, buys shares from minority shareholders while hiding his identity through a third-party check. The use of the third-party check functions as the smoking gun proving the concealment was intentional and part of a fraudulent scheme to avoid disclosure duties.
Sasha Stone, a high-profile executive on trial for fraud, moves for a change of venue citing extensive negative publicity. The prosecution points to the absence of any confession or other blatantly prejudicial statements in the coverage as the smoking gun showing that the large metropolitan jury pool can still produce an impartial panel.
Undue influence is rarely proved by a smoking gun. Courts instead allow an inference of undue influence from a confidential relationship plus suspicious circumstances surrounding the preparation or execution of the will.
Supporting sources
A personal representative's request for delivery of property is conclusive evidence that possession is necessary for administration. The representative may therefore recover the property even when it has been left with a devisee.
Supporting sources
Congress requires plaintiffs to plead with particularity facts giving rise to a strong inference of scienter. The strength of the inference is measured by whether it is powerful or cogent, not merely by the presence of a single smoking-gun document.
Supporting sources
A smoking gun may consist of physical or documentary evidence, but it may also be established by conduct such as the studied concealment of identity during a securities transaction.
Supporting sources
…(internal quotation marks omitted)). Pretrial publicity about Skilling was less memorable and prejudicial. No evidence of the smoking-gun variety invited prejudgment of his culpability. See United States v. Chagra , 669 F. 2d 241, 251–252, n. 11 (CA5 1982) (“A jury may have difficulty in disbelieving or forgetting a…