Also known as: adverse inferences · negative inference
Written by attorneys — see sources 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.
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 caseAlice 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.
Parklane Hosiery Company, Inc., and eleven of its officers and directors issued a proxy statement in connection with a merger between Parklane and another corporation. Leo Shore, a stockholder of Parklane, filed a class action on behalf of stockholders in the United States District Court for the Eastern District of New York against Parklane and the individual defendants. The complaint alleged that the proxy statement was false and misleading in violation of sections 14(a), 10(b), and 20(a) of the Securities Exchange Act of 1934 and related SEC rules. The complaint sought damages for the class, rescission of the merger, and recovery of costs. Before Shore’s action came to trial, the Securities and Exchange Commission filed a separate suit against the same defendants in the United States District Court for the Southern District of New York. The SEC complaint alleged that the proxy statement that had been issued by Parklane was materially false and misleading in essentially the same respects as those that had been alleged in the respondent's complaint. After a four-day trial, the District Court found that the proxy statement was materially false and misleading in the respects alleged, and entered a declaratory judgment to that effect. The court permanently enjoined the defendants from further violations of the securities laws and ordered them to offer rescission to shareholders who had tendered shares. The defendants did not appeal this judgment. Shore then moved for partial summary judgment in the Eastern District of New York action, asserting that the defendants were collaterally estopped from relitigating the issues resolved against them in the SEC action. The District Court denied the motion on the ground that application of collateral estoppel would deny the defendants their Seventh Amendment right to a jury trial. The Court of Appeals for the Second Circuit reversed, holding that a party who has had issues of fact determined against him after a full and fair opportunity to litigate in a nonjury trial is collaterally estopped from obtaining a subsequent jury trial of these same issues of fact. Because of an intercircuit conflict with the Fifth Circuit’s decision in Rachal v. Hill, the Supreme Court granted certiorari.
View caseAfter 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.
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 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.
Maurice S. Hepps served as the principal stockholder of General Programming, Inc. (GPI). GPI franchised a chain of Thrifty stores selling beer, soft drinks, and snacks. Hepps, the corporation, and several franchisees brought a defamation action in Pennsylvania state court against Philadelphia Newspapers, Inc., owner of the Philadelphia Inquirer, and reporters William Ecenbarger and William Lambert. Between May 1975 and May 1976 the Inquirer published five articles. The articles stated that Hepps and the Thrifty chain maintained links to organized crime. They claimed those links allowed influence over a state legislator described as a convicted felon. The stories reported that federal investigators had uncovered connections between Thrifty and underworld figures. They also stated that Thrifty had obtained competitive advantages through State Liquor Control Board rulings and that a grand jury was examining whether the chain received special treatment from the Governor's administration. At trial Hepps testified at length that the statements were false. He cross-examined the articles' authors on their accuracy. The trial court ruled that the plaintiffs bore the burden of proving falsity and instructed the jury accordingly. The jury returned a verdict for the defendants. The plaintiffs appealed directly to the Pennsylvania Supreme Court. That court held that the burden of proving truth remained with the defendants and remanded the case for a new trial. The United States Supreme Court noted probable jurisdiction.
View caseIn 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.
In 1995 Amanda Mitchell and 22 other defendants were indicted in the Eastern District of Pennsylvania for offenses arising from a conspiracy to distribute cocaine in Allentown from 1989 to 1994. Mitchell was charged with one count of conspiring to distribute five or more kilograms of cocaine and three counts of distributing cocaine within 1,000 feet of a school or playground. Without a plea agreement she pleaded guilty to all four counts. She reserved the right to contest the drug quantity attributable to her under the conspiracy count. The District Court advised her that quantity would be determined at sentencing. Before accepting the plea the District Court conducted the Rule 11 colloquy. It informed Mitchell that the range of punishment was complex because the amount of cocaine had not yet been established. She faced a mandatory minimum of ten years if held responsible for at least five kilograms. Mitchell stated under oath that she had done "some of it." After consulting counsel she reaffirmed her intention to plead guilty to all charges. The court accepted the plea. In 1996 nine codefendants went to trial. Three cooperating codefendants who had pleaded guilty testified at Mitchell's sentencing hearing. They adopted their trial testimony. One furnished additional information on the amount of cocaine petitioner sold. According to him, petitioner worked two to three times a week, selling one and one-half to two ounces of cocaine a day, from April 1992 to August 1992. Then, from August 1992 to December 1993 she worked three to five times a week, and from January 1994 to March 1994 she was one of those in charge of cocaine distribution for Riddick. Mitchell offered no evidence and did not testify. Her counsel argued that only the three documented sales to undercover buyer Alvitta Mack totaling two ounces should be credited. The District Court ruled that Mitchell had no right to remain silent at sentencing because of her guilty plea. It expressly relied on her failure to testify in crediting the codefendants' testimony. The court found her responsible for more than five kilograms and imposed the ten-year mandatory minimum sentence together with six years of supervised release and a $200 special assessment. The Court of Appeals for the Third Circuit affirmed. The Supreme Court granted certiorari.
View caseA 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.
Supporting sources
No. In civil proceedings a fact-finder may draw an adverse inference when a party refuses to answer on self-incrimination grounds.
Supporting sources
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.
…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…