Nonproduction of Witnesses as Deliberative Evidence

Publication year1978
CitationVol. 1 No. 03


Nonproduction of Witnesses as Deliberative Evidence

by James E. Beaver(fn*)

Cursed be he that removeth his neighbor's landmark

-Deut. 27: 17

It seems that once in the history of thought, common law rules of evidence were not conceived to involve a system of general principles. When, in the fullness of time, the idea of a general evidentiary construct developed, however, hardly were any two writers able to agree upon the appropriate divisions and arrangements of the general system. Sometimes writers could not agree upon the statement of a particular principle. Professors Thayer and Wigmore, among others, put an end to that situation. At the same time, the chief practical difficulty today, as always, lies in the particular application of a mass of evidentiary rules, in determining the bearing of various principles upon a given evidentiary issue of fact here and now. Nowhere has this situation continued truer than with reference to rules about evidentiary spoliation.(fn1) Indeed, after reading all there is on the subject in a recent voluminous text-book, one may well be bewildered, owing to the collection of crude, inadvertent and contradictory material."(fn2) As a result, the "request to charge which more frequently than any other is made in improper form is that dealing with the failure to call a witness."(fn3)

A litigant frequently has a choice among several ways to prove a contested proposition of fact. Simple common sense prompts a litigant to produce the most persuasive evidence possible. Clearly, it is good policy to put the litigant under pressure to produce the best, the most reliable, and the most enlightening evidence available. This is a proposition at least as old as the case of the chimney-sweep's boy(fn4) and is no doubt as ancient as rules of evidence. As Lord Chief Justice Mansfield observed,(fn5) it is a "maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted." It is a rule of common sense and on occasion even finds expression in legislation.(fn6)

The nature of the pressure upon litigants to produce the best evidence varies. In one area the so-called "best evidence rule" affirmatively requires production of the most cogent proof of the contents of a centrally significant writing. This rule may be stated thus: to prove the terms of a writing, the original writing itself is regarded as the primary evidence, and secondary evidence is inadmissable unless failure to introduce the original is satisfactorily explained.(fn7) This is generally, however, the only instance in which the pressure is in the nature of an exclusionary rule.(fn8) The pressure takes the form of criminal penalty in some instances.(fn9)

In other situations the pressure is only persuasive. A plaintiff seeking to prove the making of an advance of money to a defendant may rely on his own testimony; the testimony of a disinterested onlooker or eavesdropper; proof of an admission by a defendant; proof of a regular business entry; or any combination thereof, together with other evidence. Similarly, in a murder case, the prosecutor may rely on eye-witness testimony; a dying declaration of the alleged victim; a confession; circumstantial evidence; or some combination of these or different proofs. The pressure in these cases to make the proponent's side strong and clear lies in the risk that a natural suspicion-sharpened by the adverse comment of astute opposing counsel-may arise from failure to adduce the most cogent proof the trier believes, or is led to believe, should be available if the proponent's contentions as to the facts are sound.

Already in 1846, Mr. Justice Nelson discussed the "pressure rules" as follows:

One of the general rules of evidence, of universal application, is, that the best evidence of disputed facts must be produced of which the nature of the case will admit. This rule, speaking technically, applies only to the distinction between primary and secondary [written] evidence; but the reason assigned for the application of the rule in a technical sense is equally applicable, and is frequently applied, to the distinction between the higher and the inferior degree of proof, speaking in a more general and enlarged sense of the terms, when tendered as evidence of a fact. The meaning of the rule is, not that courts require the strongest possible assurance of the matters in question; but that no evidence shall be admitted, which, from the nature of the case, supposes still greater evidence behind in the party's possession or power; because the absence of the primary evidence raises a presumption, that, if produced, it would give a complexion to the case at least unfavorable, if not directly adverse, to the interest of the party. . . .

For a like reason, even in cases where the higher and inferior testimony cannot be resolved into primary and secondary evidence, technically, so as to compel the production of the higher; and the inferior is therefore admissible and competent without first accounting for the other, the same presumption exists in full force and effect against the party withholding the better evidence; especially when it appears, or has been shown, to be in his possession or power, and must and should, in all cases, exercise no inconsiderable influence in assigning to the inferior proof the degree of credit to which it is rightfully entitled.(fn10)

Notwithstanding the pressures on a party to come forward with the best evidence available, it is an unavoidable, albeit lamentable, fact that ofttimes a party, for various reasons, will fail to do so. It remains, therefore, to consider the effect of this recalcitrance upon the spoliator's case. "[Ajctions are often, if not always, stronger talismans of intentions and beliefs than words."(fn11) Evidence proving or tending to establish that a party to an action, or his agent, has attempted to bribe a witness to give false testimony in favor of the party,(fn12) or has otherwise attempted to fabricate or suppress evidence,(fn13) or in fact has been merely insufficiently assiduous in offering evidence when under the circumstances he would be expected to do so, is usable by the opponent. Although collateral to the issues traversed, evidence of action to fabricate or suppress is competent as an admission by conduct that the spoliating party has, or thinks he has, a weak case and that his evidence is defective or insufficient.(fn14) Such facts are similar to the conduct of a prisoner seeking to escape before trial,(fn15) or of a merchant to destroy or alter his books of account.(fn16) Such proof is directly relevant, moreover, in a line of inference running about as follows: litigant has bribed a witness; litigant believes his case is bad; litigant has reason to consider it bad, and he should know; hence his cause is bad.

Apart from the use of spoliation as directly relevant and affirmative evidence in a line of inference bearing upon a fact traversed, spoliation has also the effect of coloring other affirmative proof. It may go further than merely reflecting upon the contents of spoliated material, do more than merely suggest the document destroyed would have worked against the destroyer or the witness retained in the wings would have testified adversely to the interest of the spoliator. Some spoliation evidence is used properly and effectively to reflect adversely upon the entire side of a controversy.(fn17) Where it appears that a forgery or fraud in some material parts of the evidence has been the contrivance of a party to the proceeding, it affords a lever against all of the evidence on that side of the question, and has the effect of persuading the trier of fact to lend greater credence to all of the evidence of the other party and less to all of the evidence of the spoliator. Proof of spoliation is not usually conclusive, even when believed by the jury,(fn18) because a party may think he has a bad case when he has in fact a good one, but such proof nevertheless tends to discredit his witnesses and cast doubt upon his entire position. Moreover, such proof may well operate with conclusive effect upon the minds of the jurors or trier of fact, notwithstanding the conduct in most cases is not acknowledgement of a specific fact, but merely concession of the general weakness of his claim or defense. The protection against the drawing of unwarranted inferences must lie in the fact that such evidence does not alone bottom an adverse verdict, in the right to offer explanation, and in the closing argument of counsel.

The precise categorization of spoliation evidence has been the subject of debate among legal scholars. Some writers have regarded spoliation evidence as within the category of admissions, an exception to the rule against hearsay.(fn19) Other scholars, however, have considered it more appropriately under the heading of rules about relevancy.(fn20) Both classifications have much to be said for them. The rules about spoliation have a very ancient history under the maxim omnia praesumuntur contra spoliatorem, and involve inferences or deductions based upon experience. The treatment of spoliation evidence may involve (1) its use logically, as a deliberative fact or even as directly probative; (2) its use in the way of judicial administration, as retributive of an insult to the court; or...

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