California Civil Jury Instructions (CACI)

205. Failure to Explain or Deny Evidence

If a party failed to explain or deny evidence against [him/her/it] when [he/she/it] could reasonably be expected to have done so based on what [he/she/it] knew, you may consider [his/her/its] failure to explain or deny in evaluating that evidence.

It is up to you to decide the meaning and importance of the failure to explain or deny evidence against the party.

New September 2003; Revised December 2012

Directions for Use

This instruction should be given only if there is a failure to deny or explain a fact that is material to the case.

Sources and Authority

  • Evidence Code section 413 provides: “In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party’s failure to explain or to deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case.”
  • Secondary Sources

    3 Witkin, California Evidence (4th ed. 2000) Presentation at Trial, § 115

    7 Witkin, California Procedure (5th ed. 2008) Trial, § 302

    Cotchett, California Courtroom Evidence, § 11.04 (Matthew Bender)

    48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.93[3] (Matthew Bender)

    4 Johnson, California Trial Guide, Ch. 90, Closing Argument, § 90.30[2] (Matthew Bender)