Also known as: adverse inference instructions · adverse-inference instruction · adverse inference · missing evidence instruction
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A jury instruction directing that no adverse inference may be drawn from a criminal defendant's decision not to testify. The instruction implements the Fifth Amendment privilege against self-incrimination by preventing the jury from treating silence as evidence of guilt.
A jury instruction directing that no adverse inference may be drawn from a criminal defendant's decision not to testify. The instruction implements the Fifth Amendment privilege against self-incrimination by preventing the jury from treating silence as evidence of guilt.
Select any source to read its text and confirm it supports the definition.
A sanction imposed when a party destroys or fails to preserve relevant evidence. The instruction permits the jury to infer that the missing evidence would have been unfavorable to the spoliating party.
Select any source to read its text and confirm it supports the definition.
A sanction imposed when a party destroys or fails to preserve relevant evidence. The instruction permits the jury to infer that the missing evidence would have been unfavorable to the spoliating party.
Each sense below has its own examples, sources, and questions.
Ortiz faced vehicular homicide charges after a highway collision. He remained silent at trial on counsel's advice. Defense counsel timely asked the judge to instruct the jury that it could draw no adverse inference from that silence. The judge refused and gave only standard burden-of-proof instructions. Ortiz was convicted.
Twining refused to answer questions about prior convictions during a state criminal trial. The trial judge instructed the jury that it could draw an inference of guilt from his refusal. Twining challenged the instruction on appeal.
Jaffee declined to answer certain questions at trial on self-incrimination grounds. The opposing party sought an adverse inference instruction based on the refusal. The court considered whether the instruction was constitutionally permissible.
A criminal defendant who does not testify is constitutionally entitled to the instruction upon timely request. The instruction prevents the jury from treating silence as evidence of guilt and is required to protect the Fifth Amendment privilege.
Supporting sources
No. A judge may give the instruction even over objection because it is viewed as protective rather than prejudicial. The instruction safeguards the privilege rather than infringing it.
Supporting sources
Zubulake sued her former employer for gender discrimination. The employer deleted relevant emails after litigation became foreseeable. Zubulake moved for an adverse inference instruction. The court found the employer negligent in preserving the records and granted the instruction.
Shore sued Parklane Hosiery after an SEC judgment found the company liable for securities violations. Shore sought to use the prior judgment to establish certain facts. Parklane argued that an adverse inference from its earlier silence should not carry over.
The moving party must show that the opposing party had a duty to preserve the evidence, destroyed it with a culpable state of mind, and that the evidence was relevant to a claim or defense.
Supporting sources
Yes. In civil proceedings, a court may draw an adverse inference when a party refuses to answer on Fifth Amendment grounds. The inference is permitted because the privilege does not bar all consequences in civil litigation.
Supporting sources
…(1918) (cases cited therein). [^maj-16]: To demur, a party would admit the truth of all the facts adduced against him and every adverse inference that could be drawn therefrom, and the court would determine which party should receive judgment on the basis of these admitted facts and inferences. See Slocum v. New York Life Ins.…