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 essay argues that it is time that the use of such inferences be radically curtailed, not only because of the ambiguities and risks of prejudice that such inferences entail, 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. This management is properly the job of the judiciary, and there are more than adequate tools for this purpose in the form of discovery sanctions, such as issue preclusion, monetary awards, and dismissals or defaults.

Erratum

The sentence on page 12, line 10 originally read:
‘Second, the sanction would leave too much to fortuity, since we can only speculate as to the significance which a jury might attach to evidence of willful document description in the context of a complex and protracted antitrust case.’

The sentence was corrected on July 14, 2009 to read:
‘Second, the sanction would leave too much to fortuity, since we can only speculate as to the significance which a jury might attach to evidence of willful document destruction in the context of a complex and protracted antitrust case.’

Recommended Citation

Nance, Dale A. (2009) "Evidentiary Foul Play: The Roles of Judge and Jury in Responding to Evidence Tampering," International Commentary on Evidence: Vol. 7 : Iss. 1, Article 5.
DOI: 10.2202/1554-4567.1094
Available at: http://www.bepress.com/ice/vol7/iss1/art5