CACI No. 205. Failure to Explain or Deny Evidence
Judicial Council of California Civil Jury Instructions (2023 edition)Download PDF
205.Failure to Explain or Deny Evidence
If a party failed to explain or deny evidence against [him/her/nonbinary
pronoun/it] when [he/she/nonbinary pronoun/it] could reasonably be
expected to have done so based on what [he/she/nonbinary pronoun/it]
knew, you may consider [his/her/nonbinary pronoun/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
• Failure to Explain or Deny. Evidence Code section 413.
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 129
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 (Matthew
4 California Trial Guide, Unit. 90, Closing Argument, § 90.30 (Matthew Bender)
California Judges Benchbook: Civil Proceedings - Trial § 11.10 (Cal CJER 2019)