203.Party Having Power to Produce Better Evidence
You may consider the ability of each party to provide evidence. If a
party provided weaker evidence when it could have provided stronger
evidence, you may distrust the weaker evidence.
New September 2003
Directions for Use
An instruction on failure to produce evidence should not be given if there is no
evidence that the party producing inferior evidence had the power to produce
superior evidence. (Thomas v. Gates (1899) 126 Cal. 1, 6 [58 P. 315]; Hansen v.
Warco Steel Corp. (1965) 237 Cal.App.2d 870, 876 [47 Cal.Rptr. 428]; Holland v.
Kerr (1953) 116 Cal.App.2d 31, 37 [253 P.2d 88].)
The reference to “stronger evidence” applies to evidence that is admissible. This
instruction should not be construed to apply to evidence that the court has ruled
inadmissible. (Hansen, supra, 237 Cal.App.2d at p. 877.)
For willful suppression of evidence, see CACI No. 204, Willful Suppression of
Sources and Authority
• Power to Produce Better Evidence. Evidence Code section 412.
•Section 412 does not incorporate the “best evidence rule,” but instead deals
with “stronger and more satisfactory” evidence. (Largey v. Intrastate
Radiotelephone, Inc. (1982) 136 Cal.App.3d 660, 672 [186 Cal.Rptr. 520]
(giving of instruction was proper because corporate records concerning date of
meeting could have been stronger evidence than recollection of participants
several years later).)
• This inference was a mandatory presumption under former Code of Civil
Procedure section 1963(6). It is now considered a permissible inference. (See 3
Witkin, California Evidence (4th ed. 2000) § 114, p. 152.)
7 Witkin, California Procedure (4th ed. 1997) Trial, § 313
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.93 (Matthew
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) § 12.10 (Cal CJER