The wild and wooly world of inference and presumptions - when silence is deafening.

• Author: Morman, Daniel

The term "record" refers to the official report of the proceedings in a case, including the filed papers, a verbatim transcript of the trial or hearing (if any), and tangible exhibits. (1) As a practical matter, however, these things are not all that belong in a record. Leaving aside a criminal defendant's Fifth Amendment right against self-incrimination, (2) a party is expected to come forward with evidence under his or her control. In fact, the law sometimes provides consequences for the failure to produce evidence. (3) These consequences are typically in the nature of adverse inferences or presumptions resulting in the shifting of the burden of proof.

This article will discuss those inferences and presumptions that arise in situations where a party that can provide information on a subject fails to do so. It will also discuss inferences and presumptions that arise in situations where physical evidence that should have been created or maintained is unavailable. While a cursory discussion of sanctions for spoliation of evidence will also follow, the general focus of the article will be on adverse inferences and presumptions in the context of civil proceedings. Criminal cases are outside the scope of discussion.

Definitions

There is an important distinction between an inference and a presumption. An inference is "a permissible deduction which the jury may reject or accord such probative value as it desires, and is descriptive of the factual conclusion that the jury may draw from sufficient circumstantial evidence." (4) In Busbee v. Quarrier, 172 So. 2d 17, 22-23 (Fla. 1st DCA 1965), the court noted that the word "inference" has a two-fold use. First, it describes that which the law reaches without direct proof from an admitted antecedent fact. Second, it refers to the factual conclusion which a trier of fact may draw from sufficient circumstantial evidence. Black's Law Dictionary defines an "adverse inference" as being a "detrimental conclusion drawn by the fact-finder from a party's failure to produce evidence that is within the party's control." (5) It has been said that an inference will support a jury verdict, but not a directed verdict. (6) Florida's evidence code, F.S. [section] 90.301(3), provides that "nothing in the chapter will prevent the drawing of an inference that is appropriate."

The evidence code addresses presumptions in greater detail. F.S. [section] 90.301(1) defines a presumption as "an assumption of fact which the law makes from the existence of another fact or group of facts found or otherwise established." There are two types of presumptions: rebuttable and conclusive. (7) Under F.S. [section] 90.301(2), all presumptions are rebuttable unless they are explicitly made conclusive under the law from which they arise.

A presumption of law is a preliminary rule of law which may be made to disappear in the face of rebuttal evidence, but in the absence of such rebuttal evidence, compels a favorable ruling for the party relying thereupon. Presumptions serve, at least initially, to relieve a party from the burden of establishing the existence of basic facts which give rise to the presumption. (8) In other words, it shifts the burden of going forward in a case, but not the burden of proof. (9) F.S. [section] 90.302 classifies rebuttable presumptions as either requiring an assumption of the existence of a fact, or requiring an assumption of the nonexistence of a fact.

Under F.S. [section] 90.304, all presumptions not defined in [section] 90.303 are presumptions that affect the burden of proof. F.S. [section] 90.303 provides that "[i]n a civil action or proceeding, unless otherwise provided by statute, a presumption established primarily to facilitate the determination of the particular action in which the presumption is applied ... is a presumption affecting the burden of producing evidence."

Failure to Offer Testimony

May a party be subjected to an adverse inference due to the failure to produce a witness? If an adverse inference is permitted, it usually results from the failure to produce a witness under a party's control, although there is also ample authority for drawing adverse inferences from failure to produce physical evidence within a party's control as well. Other jurisdictions refer to this as the "adverse inference rule." (10)

There is no requirement that a plaintiff must appear in court to testify in support of his or her action. (11) Although the trier of fact is not required to find against a plaintiff who fails to testify, it may draw an adverse inference from the plaintiff's failure to appear. (12) The court in Geiger v. Mather of Lakeland, Inc., 217 So. 2d 897, 898 (Fla. 4th DCA 1968), provided the following guidance:

It is a general rule that the failure of a party to appear or testify as to material facts within his knowledge creates an inference that he refrained from appearing or testifying because the truth, if made to appear, would not aid his contention.... The unfavorable inference which may be drawn from the failure of a party to testify is not warranted when there has been a sufficient explanation for such absence or failure to testify.

In addition, courts have taken the concept of an adverse inference one step further. An adverse inference also may be drawn when a party fails to call a witness peculiarly under that party's power to produce and the witness's testimony would elucidate the transaction at issue. (13) As stated by the court in Tri-State Systems, Inc. v. Department of Transportation, 500 So. 2d 212, 215 (Fla. 1st DCA 1986), "the failure of a party to present the testimony of a person within his control who has knowledge of the fact at issue justifies an inference adverse to that party." If the witness is equally available to both parties, however, then...