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The Adverse Inference Jury Charge
by Gary Muldoon
Muldoon & Getz
Rochester, New York
www.muldoongetz.com

 An adverse inference charge is one that permits the trier of fact to make a negative inference from something that has occurred, or more frequently, from the absence of something.

Examples

An adverse inference charge has been granted in the following situations:

• a party’s missing witness, People v Paylor, 70 NY2d 146 (1987).
• a defendant’s flight, which may show consciousness of guilt.
• failure to provide discovery, People v Wilson, 210 AD2d 520 (3d Dept 1994); People v Martinez, 71 NY2d 937 (1988); People v Walker, 209 AD2d 460 (2d Dept 1994).
• in a drinking-driving prosecution, the refusal to take the chemical test. People v Thomas, 46 NY2d 100 (1978); People v Selsmeyer, 128 AD2d 922 (3d Dept 1987).

Scope of the inference

If granted, what may properly be inferred? In Paylor, the Court of Appeals rejected both the strong inference and weak inference that the parties had requested at trial for a missing witness. Instead, the court approved what was stated in Criminal Jury Instructions, namely that had the witness been called, the testimony would not have supported the position of the party calling the witness. See People v Paylor, 70 NY2d 146 (1987). The fact finder may not speculate about what the witness would have said nor assume that the witness would have provided positive evidence to the other side. The adverse inference in a missing witness charge is "merely negative and allows the fact finder to infer that the missing witness would not have supported or corroborated defendant’s evidence."

The inference permitted by the instruction is a permissive one; the jury is not required to reach that conclusion.

Adverse inference inappropriate

In some situations an adverse inference is inappropriate, or the jury should be instructed to not make the inference if it makes a certain conclusion. See US v Mundy, 539 F3d 154, 157 (2d Cir 2008).

If the jury finds that the defendant’s flight is caused by a different reason, an adverse inference should not be made. People v Jones, 104 AD2d 826 (2d Dept 1984).

Where discovery is inadvertently lost, or is not required to be preserved, an adverse inference is inappropriate. People v Aquevareno, 17 AD3d 171 (1st Dept 2005); People v Handy, 83 AD3d 1454 (4th Dept 2011).

Where a witness invokes the Fifth Amendment right to not testify, no adverse inference is permissible. People v Siegel, 87 NY2d 536 (1995).

An adverse inference instruction may go too far in what it permits to be inferred. And, counsel may improperly compound that inference on summation. See People v Jiminez, 176 AD2d 241 (2d Dept 1991).

© 2012 by Gary Muldoon