Adverse inference is a

legal Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...

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

evidence Evidence for a proposition is what supports this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays and how it is conceived varies from field to field. In epistemology, evidenc ...

. It is part of evidence codes based on

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...

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

trial In law, a trial is a coming together of Party (law), parties to a :wikt:dispute, dispute, to present information (in the form of evidence (law), evidence) in a tribunal, a formal setting with the authority to Adjudication, adjudicate claims or d ...

. 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 p ...

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 jurisdic ...

), the

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

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

The

United States Court of Appeals for the Eighth Circuit The United States Court of Appeals for the Eighth Circuit (in case citations, 8th Cir.) is a United States federal court with appellate jurisdiction over the following United States district courts: * Eastern District of Arkansas * Western Dist ...

pointed out in 2004, in a case involving spoliation (destruction) of evidence, that "the giving of an adverse inference instruction often terminates the

litigation - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil actio ...

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'...." However, Adverse Inference does not apply in criminal actions where an individual asserts the Fifth Amendment right against self incrimination, but may be used in civil actions only. This rule 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. Adverse inference can also apply to a witness known to exist but the party refuses to identify or produce, where 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