Adverse Inferences About Adverse Inferences: Restructuring Juridical Roles for Responding to Evidence Tampering by Parties to Litigation

Dale A. Nance, Case Western Reserve University School of Law

Abstract

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 it is time that the use of such inferences, and invitations to draw them, be radically curtailed, not only because of the ambiguities and risks of prejudice that such inferences entail, which have long been noted, but more importantly because they involve 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, and there are more than 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.