Presumption of Credibility

Witnesses are presumed to be testifying truthfully.

 
Adverse Inference from Failure to Call Witness

Under the "missing witness" rule, where a party fails to call a witness who is is within its exclusive control, an adverse inference may be drawn with respect to matters likely to be within the witness’ personal knowledge,{footnote} Ready Mixed Concrete Co. v. N.L.R.B., 81 F.3d 1546 (10th Cir. 1996).

80 ALR4th 405{/footnote} and which are both relevant and noncumulative.{footnote}In re Williams, 190 B.R. 728 (D.R.I. 1996); Bath Iron Works Corp. v. United States, 34 Fed.Cl. 218 (Fed. Cl. 1995).{/footnote}  To invoke this adverse inference, the opposing party must establish that the witness was either physically available only to the other party, or had a relationship with the other party which as a practical matter rendered him or her unavailable to the opposing party.{footnote}Oxman v. WLS-TV, 12 F.3d 652 (7th Cir. 1993)(adverse inference refused where defendant TV station’s news directors not shown to be in station’s control and no effort was made to depose them).{/footnote}   The adverse inference is unavailable where the witness is equally available to both parties and there is no showing that the witness was favorably disposed to the non-producing  party.{footnote} [4336] In re Drexel Burnham Lambert Group, Inc., 160 B.R. 729 (S.D.N.Y. 1993).{/footnote}

Witnesses Discovered through Illegal Search{footnote}41 ALR2d 900.{/footnote}

Tampering

Evidence of witness tampering is admissible against a party.{footnote}United States v. Brashier, 548 F.2d 1315 (9th Cir. 1976), cert. denied, 429 U.S. 1111 (1977).{/footnote}

Related Articles

CREDIBILITY; DEMEANOR; HARASSMENT; IMPEACHMENT; SEQUESTRATION OF WITNESSES; SUMMARIES–Summary Testimony.