Adverse Inference, Spoliation of Evidence and the Missing Witness Rule

What is an Adverse Inference?

An adverse inference is a legal term used to describe an instruction given by the Court to a jury directing them to infer that missing evidence or testimony from a witness would be unfavorable to a party. It is applicable to both witnesses and other evidence, such as documents, electronic files and video recordings. For example, an adverse inference may be used as a sanction against a party who intentionally destroyed evidence.  If the destruction of evidence resulted in prejudice to an opposing party, the court may instruct the jury to infer that the evidence would have been unfavorable to the offending party.

When Can the Jury be Instructed to Draw an Adverse Inference at Trial?

As discussed above, a jury may be instructed to draw an adverse inference if a party intentionally destroys (or fails to preserve) evidence and it results in prejudice to another party. This is often referred to as “spoliation of evidence.”

In addition, the general rule in Pennsylvania is that if a party fails to call a witness or other evidence within his or her control, the fact finder may be permitted to draw an adverse inference. Kovach v. Solomon, 732 A.2d 1, 8 (Pa. Super. Ct. 1999). This rule may be applied in both civil and criminal cases. When the rule is applied to witnesses it is referred to as the “missing witness rule.”

This “missing witness rule” generally applies when a potential witness is available to only one of the parties to a trial, and it appears this witness has special information material to the issue, and this person’s testimony would not be merely cumulative, then if such party does not produce the testimony of this witness. Under these circumstances, the jury may draw an inference it would have been unfavorable. Kovach at 8-9.

Can a Party be Sanctioned for Spoliation of Evidence?

If a party intentionally destroys or fails to preserve evidence he/she may be sanctioned by the court. The penalty for spoliation of evidence can range from an adverse inference, which is the least restrictive sanction possible, to other sanctions such as monetary damages or the preclusion of evidence and/or certain claims and defenses. The latter sanctions are viewed as much more extreme and will only be given under certain circumstances.

To determine which penalty should be applied, the Supreme Court of Pennsylvania set forth factors that should be weighed to determine the proper penalty for spoliation of evidence. See Schroeder v. Commonwealth, 551 Pa. 243 (Pa. 1998). The relevant factors include: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party, and (3) other available sanctions that will protect the opposing party’s rights and deter future similar conduct.

About Personal Injury Lawyer, Brent Wieand

Brent Wieand is a personal injury lawyer in Philadelphia, PA who regularly handles serious personal injury cases involving car accidents, premises liability cases, defective products and medical malpractice. Brent is proud to serve clients through all of Pennsylvania and New Jersey. To reach him for a free case consultation call 1(888) 789-3161 or submit a description of your claim through the online contact form.
*Disclaimer: This article does not contain legal advice and may not be current. If you are seeking legal advice you should consult an experienced attorney who can help address your specific circumstances.

Schedule free consultation
Get Started Today!