Adverse inference is a

legal Law is a set of rules that are created and are law enforcement, enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a Socia ...

inference, adverse to the concerned party, drawn from silence or absence of requested

evidence Evidence for a proposition is what supports the proposition. It is usually understood as an indication that the proposition is truth, true. The exact definition and role of evidence vary across different fields. In epistemology, evidence is what J ...

. It is part of evidence codes based on

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

in various countries. According to Lawvibe, "the 'adverse inference' can be quite damning at

trial In law, a trial is a coming together of parties to a dispute, to present information (in the form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court. The tribunal, w ...

. Essentially, when

plaintiff A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the ...

s try to present evidence on a point essential to their case and can't because the document has been destroyed (by the

defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one juris ...

), the

jury A jury is a sworn body of people (jurors) convened to hear evidence, make Question of fact, findings of fact, and render an impartiality, impartial verdict officially submitted to them by a court, or to set a sentence (law), penalty or Judgmen ...

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...."

In the United States

Adverse inference applies in United States civil trials, but not criminal trials; criminal defendants are protected by the Fifth Amendment, which guarantees a right against self-incrimination (including self-incrimination by way of silence). In civil trials, adverse inference may be imposed as a sanction by the court in reaction to spoliation, such as willful destruction of relevant emails. In this case, the court may direct a jury to assume that the evidence that was destroyed was negative for the destroying party, i.e., that it was destroyed to hide something. This applies not only to evidence destroyed but also to evidence existing but not produced by the party as well as to evidence under a party's control but not produced. See Notice to produce. The adverse inference is based upon the presumption that the party who controls the evidence would have produced it if it had been supportive to their case. Adverse inference can also apply to a witness who is known to exist whom a party refuses to identify or produce. In such a case it is also known as the Missing-Witness Rule, or the Empty-Chair Doctrine.

In English law

After a change in the law in 1994, the right to silence under English law was amended because the court and jury were allowed to draw adverse inference from such a silence. Under English law, the police, cautioning someone, say, "You do not have to say anything. But it may harm your defence if you do not mention, when questioned, something which you later rely on in court". Under English law, the court and the jury may draw an adverse inference from fact that someone did not mention a defence when given the chance to do so if charged with an offence.

References

{{reflist Legal terminology Inference Legal reasoning