For at least two centuries, Anglo-American courts have responded to a party's evidence tampering by allowing the opponent to argue to jurors that they should draw an adverse inference against the offending party in deciding the merits of the case. This Article argues that the use of such inferences, and invitations to draw them, should be radically curtailed, not only because of the ambiguities and risks of prejudice that such inferences entail, but more importantly because they reflect and contribute to a confusion of roles in which the jury is enlisted to participate in the management of the pre-trial conduct of litigants with regard to evidence preservation, preparation, and selection. This management is properly the job of the judiciary, which has adequate tools for this purpose in the form of modernly available discovery sanctions such as issue preclusion and separate monetary awards. The judiciary should be encouraged, if not required, to substitute these alternative tools for adverse inferences by juries.
Litigation, Evidence, Evidence Tampering
Place of Original Publication
Boston University Law Review
90 Boston University Law Review 1089 (2010)
Nance, Dale A., "Adverse Inference About Adverse Inferences: Restructuring Juridical Roles for Responding to Evidence Tampering by Parties to Litigation" (2010). Faculty Publications. 63.