Adverse inference
Encyclopedia
Adverse inference is a legal
inference, adverse to the concerned party, drawn from silence or absence of requested evidence
. It is part of evidence codes based on common law
in various countries.
According to Lawvibe, "the 'adverse inference' can be quite damning at trial
. Essentially, when plaintiff
s try to present evidence on a point essential to their case and can’t because the document has been destroyed (by the defendant
), the jury
can infer that the evidence would have been adverse to (the defendant), and adopt the plaintiff’s reasonable interpretation of what the document would have said..."
The United States Court of Appeals for the Eighth Circuit
pointed out in 2004, in a case involving spoliation (destruction) of evidence, that "...the giving of an adverse inference instruction often terminates the litigation in that it is 'too difficult a hurdle' for the spoliating party to overcome. The court therefore concluded that the adverse inference instruction is an 'extreme' sanction that should 'not be given lightly'...".
This rule applies not only to evidence which is destroyed, but also to evidence which exists but the party refuses to produce, and to evidence which the party has under his control, and which is not produced. See Notice to produce
. This adverse inference is based upon the presumption that the party who controls the evidence would have produced it, if it had been supportive of his/her position.
It can also apply to a witness who is known to exist but which the party refuses to identify or produce.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
inference, adverse to the concerned party, drawn from silence or absence of requested evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
. It is part of evidence codes based on common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
in various countries.
According to Lawvibe, "the 'adverse inference' can be quite damning at trial
Trial
A trial is, in the most general sense, a test, usually a test to see whether something does or does not meet a given standard.It may refer to:*Trial , the presentation of information in a formal setting, usually a court...
. Essentially, when plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
s try to present evidence on a point essential to their case and can’t because the document has been destroyed (by the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
), the jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
can infer that the evidence would have been adverse to (the defendant), and adopt the plaintiff’s reasonable interpretation of what the document would have said..."
The United States Court of Appeals for the Eighth Circuit
United States Court of Appeals for the Eighth Circuit
The United States Court of Appeals for the Eighth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Arkansas* Western District of Arkansas...
pointed out in 2004, in a case involving spoliation (destruction) of evidence, that "...the giving of an adverse inference instruction often terminates the litigation in that it is 'too difficult a hurdle' for the spoliating party to overcome. The court therefore concluded that the adverse inference instruction is an 'extreme' sanction that should 'not be given lightly'...".
This rule applies not only to evidence which is destroyed, but also to evidence which exists but the party refuses to produce, and to evidence which the party has under his control, and which is not produced. See Notice to produce
Request for production
A request for production is a legal request for documents, electronically stored information, or other tangible items. In civil procedure, during the discovery phase of litigation, a party to a lawsuit may request that another party provide any documents that it has that pertain to the subject...
. This adverse inference is based upon the presumption that the party who controls the evidence would have produced it, if it had been supportive of his/her position.
It can also apply to a witness who is known to exist but which the party refuses to identify or produce.