At trial, it is key to know what evidence affirmatively proves or disproves an element of a claim. In some situations, an adverse evidentiary inference instruction can be made or argued for to show that missing evidence would be favorable or unfavorable to a certain position. Two prominent examples in civil cases as to when this may be appropriate are when an opposing party has (1) spoiled or destroyed evidence or (2) invokes his or her right to remain silent. Spoliation/destruction of evidence occurs when someone intentionally destroys or discards evidence. If spoilation can be proven, the court may instruct that an inference may be made that the missing evidence would have been unfavorable. Baldridge v. Director of Revenue, 82 S.W.3d 212, 223 (Mo. Ct. App 2002). With the constitutional right to remain silent, it generally applies to most situations when the person believes that the testimony can lead to self-incrimination. It is a very broad right. However, in civil cases, you can invoke the right to remain silent, but, unlike in criminal cases, the Court may find that an adverse inference is appropriate and that you are remaining silent because the testimony would be unfavorable.
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