can something be used against you if you don't confirm or deny?

[gero456t]

hi i had a question.

(a simple example)

if a conversation is admitted as evidence and a person says something to you in the conversation like "you jaywalk all the time right?" and you don't confirm or deny it but change the subject could that conversation support the argument in court that you do jaywalk? because the other person insinuated that you do and you didn't deny it...however you didn't confirm it either.

(and i know jaywalking is a stupid example but you get the point, substitute anything else in there)

 

[justalayman]

is this homework?

 

[gero456t]

is this homework?

no

or should i not reply? would that confirm or deny?

 

[justalayman]

a failure to deny is not an admission. in fact, if it were that easy, just imagine how easy it would be to prosecute people.

 

[sandyclaus]

I suspect that this question has to do with OP's question in his other thread, where his landlord is trying to charge him for damages to the outside of his door: https://forum.freeadvice.com/landlord-tenant-issues-42/damage-done-strangers-595441.html

OP probably thinks that if he doesn't admit having done the damage, and doesn't disclose that he knows who actually did the damage to the door, that the landlord can't make him pay for the damage to the door.

 

[justalayman]

I suspect that this question has to do with OP's question in his other thread, where his landlord is trying to charge him for damages to the outside of his door: https://forum.freeadvice.com/landlord-tenant-issues-42/damage-done-strangers-595441.html

OP probably thinks that if he doesn't admit having done the damage, and doesn't disclose that he knows who actually did the damage to the door, that the landlord can't make him pay for the damage to the door.

Ah, that is a very different situation that what I was considering. OP needs to understand that in civil courts, it only requires a preponderance of the evidence (anything greater than 50%) to rule against a party. The parties' veracity as determined by the judge can be used to weigh the testimony of the parties. While a moment of silence will not get you convicted in court, that same silence can scream loudly to the judge that you are liable for the damages.

 

[Mass_Shyster]

a failure to deny is not an admission. in fact, if it were that easy, just imagine how easy it would be to prosecute people.

It could be considered an adoptive admission.

"If a party remains silent after he or she hears or received a damaging statement, the statement may be admitted as an adoptive admission on the theory that the normal human reaction would have been to deny such a statement if it were untrue." Evidence, Cases and Materials, Ninth Edition, Weinstein, Mansfield, Abrams, Berger, Page 569.

I'm not going to bother reading the other thread to see if this is applicable.

 

[justalayman]

It could be considered an adoptive admission.



I'm not going to bother reading the other thread to see if this is applicable.

is that to criminal or civil law? I would think only civil.

When I first responded, I was considering criminal law. After reading the other thread, I realized this involves civil law.

 

[gero456t]

is that to criminal or civil law? I would think only civil.

When I first responded, I was considering criminal law. After reading the other thread, I realized this involves civil law.

you guys assume too much.

these two threads are not related.

also the not denying or admitting would not be when the judge asks you. it would be in a conversation that was recorded submitted as evidence.

 

[ecmst12]

Why do you think such a recording would be admissible evidence?

 

[Sloop John D]

is that to criminal or civil law? I would think only civil.

When I first responded, I was considering criminal law. After reading the other thread, I realized this involves civil law.

Adoptive Admission applies to criminal law as well. It's actually a hearsay exception for admitting an out of court statement, or in this case, lack of statement.

From what I recall, most states allow a jury to consider a failure to deny facts, whether or not adoptive admission has been invoked to admit the evidence. A judge may even provide a jury instruction informing jurors that they may consider a failure to deny facts or accusations.

 

[justalayman]

Then why are all criminal juries instructed that the defendant not testifying cannot be construed as evidence of guilt?

 

[LdiJ]

Then why are all criminal juries instructed that the defendant not testifying cannot be construed as evidence of guilt?

Aren't we talking about a civil case here though? Obviously the rules are going to be different. I really don't have an opinion one way or the other on this thread, but mixing criminal rules with civil rules doesn't make sense.

 

[justalayman]

Aren't we talking about a civil case here though? Obviously the rules are going to be different. I really don't have an opinion one way or the other on this thread, but mixing criminal rules with civil rules doesn't make sense.

as I said, when I first responded it was with a criminal issue in mind. There was nothing posted to clarify it.

 

[Sloop John D]

Then why are all criminal juries instructed that the defendant not testifying cannot be construed as evidence of guilt?

I believe the rule is that a jury cannot construe a defendant's invocation of his 5th amendment rights against him, but in any instance where the defendant failed to deny facts where 5th amendment protections were unavailable or not invoked, like the OP's hypothetical, the jury may consider that in any way they want.

The whole thing is a farce anyway. There's no way a jury would disregard the fact that a defendant did not testify because of a constitutional right against self-incrimination.