Section 9.21 Adverse Inference When a Deposition Has Been Taken

• Library: Sources of Proof (2014 Ed.)

3. (§9.21) Adverse Inference When a Deposition Has Been Taken

The “adverse inference” argument is a suggestion made to the jury during closing argument that it may assume that an opposing party did not bring in certain evidence because that evidence would have been bad. The argument is permitted when a party fails to call a witness under its control or with whose testimony the party is particularly acquainted and of which the other party is ignorant. Atkinson v. United Rys. Co., 228 S.W. 483 (Mo. 1921). The opposition’s use of the argument can be prevented by reading into evidence answers to interrogatories that show that those conditions do not exist. Hill v. Boles, 583 S.W.2d 141 (Mo. banc 1979); Wren v. St. Louis Pub. Serv. Co., 355 S.W.2d 365 (Mo. App. E.D. 1962); see also Kelly ex rel. Kelly v. Jackson, 798 S.W.2d 699 (Mo. banc 1990).

As a general rule, the taking of a witness’s deposition...