AMI 106A Adverse Inference

This instruction should be used only after the court has made a determination that the evidence is sufficient to support such an inference.

The elements that must be proven to make this instruction appropriate are: (1) identified relevant evidence, (2) in the possession of a party in whose interest it is to produce it, and (3) who fails to do so without satisfactory explanation. See Source Logistics, Inc. v. Certain Underwriters at Lloyd's of London Subscribing to Policy No. NA041790U, 2010 Ark. App. 239; Slaughter v. Capitol Supply Co., 2009 Ark. 221, 306 S.W.3d 432.

An inference that documents would have been unfavorable was appropriate in Volunteer Transport, Inc. v. House where a witness relied upon his memory instead of producing available documents. 357 Ark. 95, 162 S.W.3d 456 (2004) (citing Cox v. Farrell, 292 Ark. 177, 728 S.W.2d 954 (1987), which approved a jury instruction with substantially similar language). The comparable federal model instruction includes as an additional factor that the evidence was reasonably available to the non-producing party and not to the adverse party. See O'Malley, Grenig & Lee, Federal Jury Practice and Instructions § 104.26 (5th ed. 2000). The Arkansas Supreme Court has not yet addressed that issue.

The failure of a party present at trial to testify supports giving this instruction. Jones v. Brown, 242 Ark. 537, 414 S.W.2d 618 (1967); Saliba v. Saliba, 178 Ark. 250, 11 S.W.2d 774 (1928). However, the failure to call a divorced spouse as a witness is not a sufficient basis for the instruction. Henry v. Landreth, 254 Ark. 483, 494 S.W.2d 114 (1973). There is no inference that the cross-examination of a witness under the control of a party would be unfavorable to that party where the witness is not present at the trial, is beyond the subpoena power of the court, and is not called to testify although the witness was deposed before trial, and the deposition was introduced into evidence and read at the trial. Slaughter, supra.

This instruction should not be given when a party fails to call a retained expert. Arkansas State Highway Comm'n v. Johnson, 300 Ark. 454, 780 S.W.2d 326 (1989); Arkansas State Highway Comm'n v. First Pyramid Life Ins. Co. of America, 265 Ark. 417, 579 S.W.2d 587 (1979).