Evidentiary Foul Play: The Roles of Judge and Jury in Responding to Evidence Tampering
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Dale A. Nance
For at least two centuries, Anglo-American courts have responded to a party's evidence tampering by allowing the opponent to argue to jurors that they should draw an adverse inference against the offending party in deciding the merits of the case. This essay argues that it is time that the use of such inferences be radically curtailed, not only because of the ambiguities and risks of prejudice that such inferences entail, but more importantly because they involve a confusion of roles in which the jury is enlisted to participate in the management of the pre-trial conduct of litigants. This management is properly the job of the judiciary, and there are more than adequate tools for this purpose in the form of discovery sanctions, such as issue preclusion, monetary awards, and dismissals or defaults.
©2011 Walter de Gruyter GmbH & Co. KG, Berlin/Boston
Articles in the same Issue
- Introduction
- Introduction
- Letter
- A Letter to Honor Professor Margaret Berger
- Article
- Tribute to Professor Margaret Berger, Recipient of AALS Evidence Section's Wigmore Lifetime Achievement Award
- Wanting the Truth: Comparing Prosecutions of Investigative and Institutional Deception
- Evidentiary Foul Play: The Roles of Judge and Jury in Responding to Evidence Tampering
- Poetic Justice in Punishing the Evidentiary Misdeed of Knowingly Proffering Inadmissible Evidence
- Response to an Article
- Response: Are Proffers of Inadmissible Evidence Wrongful?
- Before We Move on to Another Topic: The Narrow Issue of Knowingly Proffering Inadmissible Evidence
Articles in the same Issue
- Introduction
- Introduction
- Letter
- A Letter to Honor Professor Margaret Berger
- Article
- Tribute to Professor Margaret Berger, Recipient of AALS Evidence Section's Wigmore Lifetime Achievement Award
- Wanting the Truth: Comparing Prosecutions of Investigative and Institutional Deception
- Evidentiary Foul Play: The Roles of Judge and Jury in Responding to Evidence Tampering
- Poetic Justice in Punishing the Evidentiary Misdeed of Knowingly Proffering Inadmissible Evidence
- Response to an Article
- Response: Are Proffers of Inadmissible Evidence Wrongful?
- Before We Move on to Another Topic: The Narrow Issue of Knowingly Proffering Inadmissible Evidence
