Also known as: negative inferences · adverse inference · adverse inferences
Written by attorneys · grounded in primary & secondary sources — see below
An adverse conclusion drawn by a factfinder from a party's failure to testify or produce evidence.
Ortiz faced vehicular homicide charges after a highway collision. Dashcam footage left gaps in the prosecution's account of his driving. On counsel's advice Ortiz remained silent at trial and his lawyer timely asked the judge to instruct the jury against drawing any conclusion from that choice. The judge refused and gave only the standard burden-of-proof charge. Ortiz was convicted.
In a civil support enforcement hearing a parent was called to testify about income and assets. The parent refused on self-incrimination grounds. The court drew an adverse inference from the refusal and entered a support order. The parent appealed, claiming the inference violated due process.
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Newspaper reporters refused to name sources under the state shield law during a defamation trial. The plaintiffs asked the judge to tell the jury it could treat the refusals as evidence that the published statements were false. The defense sought an instruction barring any such conclusion. The trial court gave neither charge.
eBay sued Bidder's Edge for scraping auction data. Bidder's Edge argued that eBay had failed to preserve certain server logs relevant to the trespass claim. eBay countered that no logs had been destroyed. The court considered whether the absence of records warranted an adverse conclusion against eBay.
A criminal defendant who does not testify is entitled to the instruction upon timely request. The Fifth Amendment forbids the jury from treating silence as evidence of guilt. General burden-of-proof instructions do not substitute for the specific charge. Refusal of a proper request requires reversal.
No. Both prosecutors and judges are barred from inviting the jury to treat a defendant's failure to testify as substantive evidence of guilt. Such an instruction violates the Fifth Amendment privilege against self-incrimination regardless of whether the comment comes from the bench or the prosecution table.
Yes. The remark implies that an innocent person would have testified and therefore invites the jury to infer guilt from silence. Because the comment came from the bench it carries special weight with jurors. The proper remedy is to grant a mistrial when the taint cannot be removed.
…5942(a) (1982). This statute has been interpreted broadly. Appellees requested an instruction stating that the jury could draw a negative inference from appellants' assertions of the shield law; appellants requested an instruction that the jury could not draw any inferences from those exercises of the shield law's privilege. The trial…