Whether
a party to a civil lawsuit has,
by his conduct or
silence,
made an
admission
of the
truth
or existence of one or more facts
which are inconsistent with the
claim he is asserting in the action.
Criminal proceedings:
Sentencing court could not draw
adverse inference from defendant's
silence in determining facts relating
to circumstances and details of
the crime.
U.S.C.A. Const.Amend. 5.
Mitchell v. U.S., 526 U.S. 314,
119 S. Ct. 1307, 143 L. Ed. 2d 424
(1999);
Silence constitutes admission
in civil proceedings only when circumstances
are such that one ought to speak
and does not.
Harmon v Mifflin County Sch. Dist.
(1996, Pa Cmwlth) 684 A2d 651.
§
10. Admissions by silence--In general
There is a generally accepted
rule of human conduct which holds
that a person will usually try to
repel an imputation or claim that
has no foundation in fact. An unavoidable
corollary of this rule, often expressed
in the maxim "Qui tacet consentire
videtur," [FN47] serves as
the basis for the generally recognized
principle that, subject to various
qualifications, a person's silence
may be construed for evidentiary
purposes as a tacit admission of
the facts stated where a statement
is made in his presence in regard
to facts affecting his rights, and
he makes no reply. [FN48] Evidence
of such silence is most commonly
admitted in accident litigation
where a party fails to respond to
an accusation of fault, or to some
other statement regarding the circumstances
of the accident, made in his presence.
[FN49]
FN47. "He who is silent
is supposed to consent." See
Comment: Admission by Silence in
Civil Cases, 17 Syracuse L Rev 507
(Spring 1966).
FN48. See, for example,
Ruth v Rhodes, 66 Ariz 129, 185
P2d 304;
Beck v Dye, 200 Wash 1, 92 P2d 1113.
See also 2 Jones on Evidence (6th
ed.) § 13:49.
Admissibility of evidence of party's
silence, as implied or tacit admission,
when a statement is made by another
in his presence regarding circumstances
of an accident, 70 A.L.R. 2d 1099
§ 3.
Despite the general rule
of admissibility, there is clearly
something of an uncertainty that
attends the interpretation of a
person's silence as an implied admission
of a statement made by someone else,
and this uncertainty has led many
courts to consider evidence of such
silence as dangerous and to be received
only with caution. Accordingly,
it is frequently held that evidence
of a party's
silence
cannot be introduced as proof of
an admission
unless the following conditions
are shown to have existed: (1) the
statement in question was made in
the party's presence and hearing,
[FN50] (2) the party was capable
of understanding the meaning of
the statement, [FN51] (3) the party
had sufficient knowledge of the
facts embraced in the statement
to reply thereto, [FN52] (4) the
party was at liberty to deny the
statement or otherwise respond to
it, [FN53] (5) the statement was
made under such circumstances as
would naturally call for a reply,
[FN54] and (6) the statement was
made by a person normally entitled
to a reply. [FN55] In other words,
there must be a specific showing
that the silent party adopted the
statement by failing to refute it.
[FN56] It is also helpful to show
that the party at no time contradicted
his implied
admission
with an express denial of the statement
in question; courts have frequently
rejected all evidence of an
admission
where there is the slightest showing
of a denial, [FN57] holding, for
example, that evidence of an
admission
by
silence must be excluded
where the party tacitly acquiesces
in the statement made in his presence
but later denies the
truth of what was
said. [FN58]
FN57.
Carroll v Guffey, 20 Ill App 2d
470, 156 NE2d 267;
Muirhead v Challis, 213 Iowa 1108,
240 NW 912;
Refrigeration Discount Corp. v Catino,
330 Mass 230, 112 NE2d 790.
Heller, Admissions by Acquiescence,
15 U Miami L Rev 161, 169 (Winter
1960).
FN58.
Skiskowski v United States, 81 App
DC 274, 158 F2d 177, cert den
330 US 822, 91 L Ed 1273, 67 S Ct
769, reh den
331 US 870, 91 L Ed 1872, 67 S Ct
1749; Heller, 15 U Miami L Rev
161, 169.
2 questions for the group:
The strange legal rule that an unopposed
answer will be taken as truth is
a surprising fact. Can anyone point
me to this "law" or policy"?
Does a judge HAVE TO take unopposed
testimony as fact, or is it the
judge's option to do so? Can
he just say he does not believe
the man?
I have entered much truth into the
record that I want in the findings
of fact that my wife can not rebut
and so she has said nothing and
not shown up.
I will be in Leominster court tomorrow
am on some motions. Witnesses invited!?
I will be reviewing a memorandum
of law that discusses void orders
and telling this bastard that most
of his orders have been void due
to his refusal to take my testimony
and evidence. Wife is filing contempt
on none payment of child support,
which was doubled without notice,
warning, testimony or anything at
request of wife's attorney. I motion
for full hearing on this to present
evidence and this motion was denied
saying this was "just heard"
which of course it was not because
the judge told me to shut up basically.
My judge has terminated my hearing
prematurely all but one time I was
in front of him and I will be reading
him the riot at and telling him
that I intend to file a federal
civil rights suit if this pattern
of abuse continues.
I am asking for a continuance of
my trial for 2-3 months. Wife's
counsel claims discovery is over,
when it was closed only for the
prenuptial trial (write on this
bifurcation order).
If he does not continue and denies
me needed discovery and other motions
as I expect I probably need to file
federal suit and then have him recuse
himself on those grounds.
Comments and suggestions please!!