What is Adverse Inference?

Mary McMahon
Mary McMahon

Adverse inference is a legal situation in which someone making a judgment concludes that evidence was not produced because it would be unfavorable to the party being asked to produce evidence. In this particular case, silence or refusal to cooperate is taken as a suggestion that wrongdoing occurred and someone tried to cover it up. Adverse inference is most often seen in civil cases.

In the US, the Fifth Amendment, part of the Bill of Rights, plays a role in considering adverse interference.
In the US, the Fifth Amendment, part of the Bill of Rights, plays a role in considering adverse interference.

A judge can opt to issue what is known as an adverse inference instruction to the jury. In this case, the judge informs the jury that someone did not produce evidence, or spoiled the evidence so that it could not be brought to court, with the intention of concealing information which might hurt his or her case. This instruction is only undertaken when there is strong evidence to support adverse inference; if it cannot be proved that the evidence was relevant, the judge cannot alert the jury to the situation.

An adverse inference instruction may be issued by a judge toward a jury.
An adverse inference instruction may be issued by a judge toward a jury.

An adverse inference sanction is very serious. Juries can only be given such instructions when it is clear that spoilage or concealment of evidence occurred, and that the goal was to cover up unfavorable materials. If it can be demonstrated that the event occurred by accident or that the evidence was not relevant to the case, no adverse inference can be made. These measures are designed to protect people by ensuring that they cannot be incriminated by innocent actions. In the example above, for example, Mary might have reformatted her hard drive because she had a virus and needed to reinstall her operating system, and there might not have been any incriminating evidence on the computer after all.

The standard for criminal cases is much higher, because of the recognized higher stakes. Lawyers and judges alike tread very carefully in such cases when it comes to handling evidence, because they want to avoid a mistrial or a situation in which valid and useful evidence is excluded from a trial on a technicality. In the United States, the Fifth Amendment also plays a role in considering adverse interference, as people are barred from incriminating themselves under the Fifth Amendment.

Mary McMahon
Mary McMahon

Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a wiseGEEK researcher and writer. Mary has a liberal arts degree from Goddard College and spends her free time reading, cooking, and exploring the great outdoors.

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Discussion Comments


Don't forget that, if a police officer holds back investigative information from a criminal case file, the case will be dismissed because that forms part of the abuse of process claim.

Most who work in the criminal law system will create a negative inference in the case file, indicating the Judge is barred from making any kind statement to the Jury, as the court act would have been breached before the criminal case hits the court room. Lawyers will hide that simple fact from their defendant. If the police and CPS create a negative inference in the case file, the court act is barred from progressing as a criminal case and is demoted to civil redress.


@MrMoody - Adverse inference jury instruction is certainly useful. But juries can be swayed by other instructions as well, which have the same effect.

For example, the judge may tell the jury not to “admit” certain evidence or to strike certain things from the record. When he does that, juries are supposed to pay no mind to the evidence.

But seriously, how likely is it that juries can really do that? I think that stuff stays in the back of your mind even though you tell yourself that it’s not affecting your deliberations.


@miriam98 - I heard of a high profile case on television where someone was wrongfully imprisoned. It was discovered years later that this person did not commit the crime, when it was shown that one of the prosecuting attorneys had failed to provide evidence that would have exonerated the suspect.

The prosecuting attorney passed away during the interval that the suspect was in jail, so they couldn’t penalize him. But the judge found out and the suspect was let go.

Think of the years of your life that are wasted away and lost because of deliberate evidence tampering! I think lawyers who do this stuff deliberately should be ashamed of themselves; worse, they should be disbarred in my opinion.


I think there should be criminal penalties for spoliation of evidence, if such penalties do not already exist. There are some situations where I think it’s obvious that a crime is being committed.

For example, if politicians are called before a jury or a senate hearing, and those politicians delete their emails in advance of the hearing, that’s a clear criminal violation I believe.

Actually I think they are specifically instructed not to do so. This happens in corporate criminal cases too – they are told not to delete emails. Someone could of course claim that they deleted emails inadvertently, but that claim would not fly in my opinion if the emails were related to the case at hand.

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