I need a legal term reminder, please?

[Cliff421]

What is the name of your state (only U.S. law)? Oregon

Ok, so I'm old and senile, LOL. There is a two word legal term which represents the fact that if a party destroys or otherwise refuses to turn over evidence, the judge will instruct the jury that the evidence must be considered damning to the withholding party. I'm stubbing my toe on Google.

What is that legal term, please?

Thanks!

PS I'm not looking for "spoilation." I'm looking for the term which is two words and gives the judge and the aggrieved party the right to an assumption that the evidence would have aided the offended party.

 

[proud_parent]

Adverse inference?

 

[justalayman]

Spoilation, in the context of Evidence, is defined as “the intentional destruction of evidence that is presumed to be unfavorable to the party responsible for its destruction." [O'Brien v. Ed Donnelly Enters., 2010 U.S. Dist. LEXIS 101195 (D. Ohio 2010)]. http://caselaw.findlaw.com/us-6th-circuit/1070942.html

what is wrong with spoliation?

 

[Cliff421]

Adverse inference?

You're my hero, LOL. That's it!

Spoilation, in the context of Evidence, is defined as “the intentional destruction of evidence that is presumed to be unfavorable to the party responsible for its destruction." [O'Brien v. Ed Donnelly Enters., 2010 U.S. Dist. LEXIS 101195 (D. Ohio 2010)]. Nos.?07-4553, 08-3184. - BRIEN 07 4553 08 3184 v. ED DONNELLY ENTERPRISES INC - US 6th Circuit

what is wrong with spoliation?

Nothing at all. It just lacks the implication in the case where a party refuses to produce evidence rather than destroys it. Adverse inference, in layman's terms allows the court and the jury to infer from the lack of production of evidence that the evidence was favorable to the other party. The judge will so instruct the jury.

Dang, I've googled and wracked my brain, and adverse inference was completely lost to me for a while.

Thanks again!

 

[proud_parent]

Thanks again!

You're very welcome.

 

[Cliff421]

PPS

FWIW, I'm finding the word spelled "spoliation" far more often than "spoiliation."

My Microsoft Word dictionary likes the former but not the latter, too.

I don't know if perhaps either is correct. I just found it interesting. I found both to have the same basic definition on Google.

In justalayman's post, his findlaw quote spells it one way, and then he spells it in the way which I'm finding to be far more common and perhaps correct if one way only is correct.

Just a little trivia here for inquiring minds, LOL.

??

 

[justalayman]

in the actual case opinion, it is spelled spoliation. I believe that is the correct spelling.

Nothing at all. It just lacks the implication in the case where a party refuses to produce evidence rather than destroys it.

adverse inference can be the result of the act of spoliation. There must be spoliation first.

An adverse inference generally is a legal inference, adverse to the concerned party, made from a party's silence or the absence of requested evidence. For example, as a sanction for spoliation of evidence, a court may instruct the jury it could draw an inference that the evidence contained in the destroyed documents would have been unfavorable.

I believe the tort and the crime is considered spoliation of evidence. That is the action that allows adverse inference to be suggested.

 

[Cliff421]

in the actual case opinion, it is spelled spoliation. I believe that is the correct spelling.


adverse inference can be the result of the act of spoliation. There must be spoliation first.



I believe the tort and the crime is considered spoliation of evidence. That is the action that allows adverse inference to be suggested.

I can't take a position on that because I truly don't know. I'm learning here, and asking questions is all.

It was my belief that spoliation was the destruction of evidence which then resulted in a ruling of adverse inference.

It was my belief that not destroying, but rather just withholding evidence (perhaps refusing to produce it) was similar in that both could result in a ruling of adverse inference.

??

I'm involved in a case right now where a mentally ill relative filed for a serious restraining order against me, alleging threats of violence with guns. It was BS, but it temporarily cost me my concealed firearms permit, and went on my record with LEDS. Had I lost, I wouldn't have been able to have firearms in my possession or control for 14 years, among other damages that arise from such a record.

Knowing she was mentally ill, my attorney first filed a subpoena duces tecum demanding all of her mental health records - the complete files and notes of all of her mental health providers.

The judge granted it at a hearing for objections, so she next filed with the court asking for dismissal of the case to avoid producing the evidence.

Even with the dismissal, the judge entered into the record a ruling of adverse inference and a demand that if she ever again wants standing with the court for anything, she must first comply with the outstanding court order and produce that evidence.

He also ordered that my record be expunged and that the Sheriff return my CHL.

Hey, I'm a newbie at this, but very interested.

 

[justalayman]

I just happened to find this:

http://www.mwl-law.com/CM/Resources/Spoliation-in-all-50-states.pdf

OREGON
ADVERSE PRESUMPTION:
Oregon has a statutory provision allowing that willful suppression of evidence raises an unfavorable
presumption against the party who suppressed it. O.R.S. § 40.135, Rule 311(1)(c). see also Stephens
v. Bohlman, 909 P.2d 208, 211 (Or. Ct. App. 1996).

but check out some of the other states as well to see how other states treat the term.

 

[Cliff421]

I just happened to find this:

http://www.mwl-law.com/CM/Resources/Spoliation-in-all-50-states.pdf




but check out some of the other states as well to see how other states treat the term.

If I'm reading that correctly, it dovetails with my understanding. To me (and that ain't much, LOL) it says that any suppression of evidence by any means creates adverse inference or as that states, "adverse presumption."

Unless I'm missing something, spoliation would be just one way to suppress evidence and create adverse presumption.

??

 

[justalayman]

since they use a different term, adverse inference nor spoliation would be relevant. The have their specific rule concerning presumptions and one of the sections, as you read, concerns the intentional suppression of evidence.

so, since adverse inference does not seem to be applicable to Oregon, I would utilize the proper term within the courts you are dealing with.

btw: a presumption is much stronger and definite than an inference. While one might infer the facts are detrimental to the accused party's case, that allows for the trier to make a decision as to the validity of the claim. If one presumes, it is equal to being factual.


but, to support my point previous, here is an example:

Alabama defines spoliation as: “an attempt by a party to suppress or destroy material evidence
favorable to the party’s adversary.” May v. Moore, 424 So.2d 596, 603 (Ala. 1982); Wal-Mart Stores,
Inc. v. Goodman, 789 So.2d 166, 176 (Ala. 2000)

so, in Alabama, spoliation would be either suppression of the evidence or destruction of the evidence.

they go on to explain:

ADVERSE INFERENCE:
If the trier of fact finds a party guilty of spoliation, it is authorized to presume or infer that the missing
evidence reflected unfavorably on the spoliator’s interest. McCleery v. McCleery, 200 Ala. 4, 75 So. 316
(Ala. 1917). Spoliation “is sufficient foundation for an inference of [the spoliator’s] guilt or negligence.”
May v. Moore, 424 So.2d 596, 603 (Ala. 1982); see also Wal-Mart Stores, supra, 789 So.2d at 176;
Christian v. Kenneth Chandler Constr. Co., 658 So.2d 408, 412 (Ala. 1995).

so, due to the spoliation, one can utilize adverse inference to allow the missing evidence to be accepted in the worst light of the party charged with spoliation of evidence.

 

[Cliff421]

since they use a different term, adverse inference nor spoliation would be relevant. The have their specific rule concerning presumptions and one of the sections, as you read, concerns the intentional suppression of evidence.

so, since adverse inference does not seem to be applicable to Oregon, I would utilize the proper term within the courts you are dealing with.

btw: a presumption is much stronger and definite than an inference. While one might infer the facts are detrimental to the accused party's case, that allows for the trier to make a decision as to the validity of the claim. If one presumes, it is equal to being factual.


but, to support my point previous, here is an example:


so, in Alabama, spoliation would be either suppression of the evidence or destruction of the evidence.

they go on to explain:

so, due to the spoliation, one can utilize adverse inference to allow the missing evidence to be accepted in the worst light of the party charged with spoliation of evidence.

That's good stuff. Thanks for your time at that.

What jumped out at me was the Alabama quote. It said that "If the trier of fact finds a party guilty of spoliation, it is authorized to presume or infer..."

So there's your "presumption" available to the judge or jury as a result of destroying or withholding.

Hmm. Got to check Oregon some more.

 

[Cliff421]

I just happened to find this:

http://www.mwl-law.com/CM/Resources/Spoliation-in-all-50-states.pdf

OREGON
ADVERSE PRESUMPTION:
Oregon has a statutory provision allowing that willful suppression of evidence raises an unfavorable
presumption against the party who suppressed it. O.R.S. § 40.135, Rule 311(1)(c). see also Stephens
v. Bohlman, 909 P.2d 208, 211 (Or. Ct. App. 1996).

but check out some of the other states as well to see how other states treat the term.

I looked up the actual statute in Oregon and willful suppression causes an unfavorable presumption.

This is pretty cool stuff I'm learning here.