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
• 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 (2d ed.) § 12.10 (Cal CJER