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Missing Evidence Rule

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What is the “Missing Evidence Rule”?

The missing evidence rule describes how a jury should interpret instances where a party fails to produce evidence at trial.  According to the rule, if a party fails to present evidence that would have been proper to present, the jury is allowed to conclude that the evidence would have been damaging to that party’s case. 

For example, suppose that during a lawsuit, the defendant holds a document that is relevant to the case and would be proper to present during trial.  If the party then fails to enter the document as evidence, then the jury may reasonably conclude that the document would have been unfavorable for the defendant’s case.    

What Types of Evidence does the Rule apply to?

The missing evidence rule applies to various forms of evidence, including:

  • Documents
  • Witness testimony
  • Evidence that depicts the circumstances surrounding the case

The missing evidence does not apply to evidence that is “excluded”.  Excluded evidence is not allowed to be entered into the record as evidence.  For example, hearsay evidence is usually excluded from trial, since it is considered to be unreliable information. 

Thus, if evidence has been excluded, the jury may NOT conclude that the evidence would have damaged the party’s case.  The jury may only make such conclusions when the party itself willfully withholds the evidence. 

How would the Missing Evidence Rule apply to my Case?

On the one hand, the missing evidence rule essentially allows the jury to “jump” to the conclusion that the missing evidence was unfavorable for the party.  This might seem unfair, since it may not actually be true that the missing evidence was unfavorable.  If the jury believes that a party is withholding crucial information in the case, it could cast doubt on that party’s case, especially with regards to witness reliability.

On the other hand, it might be a strategic move to purposefully withhold some evidence during trial.  It may be better to simply let the jury make their conclusions rather than provide them with specific details.  It mostly depends on the nature of the case and the different facts that are involved.   

Thus, the decision of whether to omit certain evidence is largely up to the attorney, who is more experienced regarding such important matters.  Also, the attorney must make sure that they are not violating any laws by withholding evidence during trial.  Sometimes discovery rules require a party to disclose certain forms of evidence.  Violations of these regulations may result in a malpractice claim.

Do I need a Lawyer regarding Evidentiary issues?

Evidentiary issues such as the missing evidence rule are best addressed by an experienced attorney.  Criminal lawyers are trained to understand the various rules of evidence, which may be complicated.  During any criminal trial, the defendant is entitled to the representation of an attorney.  Be sure to consult with your attorney regarding the evidence in your case. 

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 10-13-2015 11:52 AM PDT

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