Evidence Question - Adverse Inference. How to invoke it? Forum

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BrokenMouse

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Evidence Question - Adverse Inference. How to invoke it?

Post by BrokenMouse » Tue May 27, 2014 3:00 pm

lol
Last edited by BrokenMouse on Thu Apr 28, 2016 4:08 pm, edited 1 time in total.

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ggocat

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Re: Evidence Question - Adverse Inference. How to invoke it?

Post by ggocat » Tue May 27, 2014 3:17 pm

Shooting from the hip here.

Adverse inference is just a rule that says a fact-finder may infer something from invoking the 5th Amendment.

I'm not aware of anything you need to do to invoke it other than (1) ask a question of the witness (e.g., at a deposition, at trial, through an interrogatory, in an administrative hearing); (2) have the witness invoke the 5th; and then (3) argue to a fact-finder that it can infer something from the witness's silence.

If you're defending against a motion for summary judgment, you can argue to the court there is a genuine issue of material fact because there is some evidence adverse to the party invoking the 5th Amendment on a particular question.
If you're at trial, you can argue to the jury that the jury should find that the other party's silence means something.
If you're on appeal, you can use the adverse inference rule to argue that there is some evidence to support the trial court's verdict.

Whether you can get a jury instruction on a permissible adverse inferences may depend on your state.

NotMyRealName09

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Re: Evidence Question - Adverse Inference. How to invoke it?

Post by NotMyRealName09 » Tue May 27, 2014 3:27 pm

As said, you can argue the inference to the jury ("he's taking the fifth because he knows the answer is bad), and you can probably get a jury instruction from the judge telling the jury is allowed to make an adverse inference that they may assume that the answer would have been again the party's interest had they not invoked the fifth. There are probably standard jury instructions on this.

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