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The Adverse Inference & 4th Amendment Challenges


The Adverse Inference: Facts That Should Be Construed Against The State

The Adverse Inference & 4th Amendment Challenges

Law enforcement officers’ testimony is often times inconsistent with that of the defendant’s. Frequently these inconsistencies could easily be resolved if law enforcement had not failed to gather evidence, which was readily available to them with minimal inconvenience. The Officer’s failure to gather this evidence highly impairs the defendant’s ability to challenge law enforcement’s testimony. Frequently leaving the defendant with only his self-serving statements to rebut the testimony of the officer. The solution to this problem is to infer the facts in dispute against the government, since the officer’s failure to gather evidence is the reason these facts are in dispute.

Problems With Law Enforcement’s Testimony, Ruiz v. State, 50 So. 3d 1229 (Fla. 4th DCA 2011)

Law enforcement officers know that if they violate the defendant’s rights it will be their word against the defendant’s self-serving statement, which judges almost always find unpersuasive. In Ruiz, the court noted that after Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) applied the exclusionary rule to the States, law enforcement started claiming in hundreds of cases each year that the defendant would happen to drop a plastic bag of drugs on the ground upon seeing the police. While this may be the case some of the time, it is clearly not happening at the rate law enforcement is claiming. This kind of testimony became known as “dropsy” testimony. Subsequently law enforcement started to apply “dropsy” testimony to consent. Id.

This left courts in the awkward position of trying to determine whether to believe law enforcement, knowing that they were not telling the truth in many of these cases, or whether to believe the defendant who had a huge self interest in denying the allegations.[1] Law enforcement frequently avoids preserving evidence with in-car videos, knowing that the court will believe them over the defendant.


Technology has created a solution to this problem. Digital video cameras are now cheap,[2] readily available, and often allows the trier of fact to assess the allegations with a high degree of certainty. Most in-car cameras can be set to turn on automatically when the emergency lights turn on, so the officer does not even need to remember to turn it on.


When the government fails to obtain important evidence that is of minimal inconvenience, and readily available to them, a due process violation has occurred. This does not mean they are lying about the facts in dispute. However, it does mean that the facts are in dispute because the government failed to gather such evidence, and since they are responsible for the dispute in facts, these facts should be construed against them. The case law clearly states that it can be considered a due process violation when the government fails to act where the government has the readily available means of preserving evidence with only a minimal inconvenience. It can also be considered a due process violation when the government fails to follow their own standard operating procedures. See State v. Powers, 555 So. 2d 888 (Fla. 2nd DCA 1990);[3] See also State v. Caglianone, 17 Fla.L. Weekly Supp. 637a (Fla. 17th Jud Cir. 2010).[4] Once a due process violation is established, the question becomes what is the remedy? While the court has discretion on what remedy to impose, probably the most reasonable and least restrictive remedy is to ask the court for an adverse inference.[5] See State v. Davis, 14 So. 3d 1130 (Fla. 4th DCA 2009).[6]


The adverse inference should apply at all proceedings where a due process violation has occurred. Any proceeding where a due process violation has occurred, and the adverse inference is not applied, would leave the defendant highly prejudiced with no remedy.[7] Therefore when law enforcement is responsible for a dispute in facts, the dispute should be inferred against the government. The adverse inference is frequently the least restrictive and most reasonable remedy for a due process violation.[8] These arguments are similar to the arguments made by the government that when a defendant refuses[9] to provide evidence, or avoids[10] law enforcement that it is evidence of wrong doing. In conclusion the adverse inference is the common sense solution to the problematic “dropsy” testimony pointed out in Ruiz.


[1] Due to the fact that eye witness testimony is also considered to be very unreliable (even for law enforcement), the police should have some duty to preserve evidence for trial as well to allow for a better assessment of the facts by everyone involved.

[2] Law enforcement agency have frequently claimed that the cost of in-car cameras was the reason for not having them. However with the significant price drop for in-car cameras in recent years it raises the question whether the few extra dollars for a in-car camera is the real reason the agency doesn’t utilize them?

[3] In State v. Powers the court held: “there is no material difference between the destruction of evidence by the state’s affirmative act and its destruction by the state’s failure to act where it has a ready means of preserving the evidence with a minimum of inconvenience. State v. Hills, 467 So.2d 845 (Fla. 4th DCA 1985).” The Court went on to state that the government had a duty to comply with their procedure, but ultimately concluded the defendant’s rights were not violated, since the law enforcement did not violate their policy.

[4] In Caglianon the court stated: “once a law enforcement agency has established a policy of gathering evidence, a duty to comply with, and thus preserve such evidence, does arise.”

[5] You can ask for an adverse inference jury instruction the question of fact is a jury question.

[6] In State v. Davis, when the government failed to video tape a DUI, the court stated the defendant was entitled to an adverse inference jury instruction at trial. Id. If the trier of fact is the court, then the defendant should ask the court to make the adverse inference.

[7] Unless the court applied an alternative remedy. However alternative remedies are generally a more severe sanction against the government, and courts are hesitant to impose those sanctions.

[8] If you are seeking for a more severe sanction than an adverse inference for a due process violation, you should explain to the court how you first looked for a less severe sanction such as an adverse inference. Then state why the adverse inference is insufficient, and the more severe sanction is appropriate in light of the circumstances.

[9] REFUSALS: The State routinely argues when the defendant refuses to abide by a lawful order by law enforcement it is admissible as a consciousness of guilt by the defendant (i.e. submit to Field Sobriety Exercises or a Breath Test). This standard should go both ways, if law enforcement has a standard operating procedure for gathering evidence, and they refuse to abide by that procedure it should be considered as evidence of improper behavior by the officer. See State v. Burns, 661 So. 2d 842 (Fla. 5th DCA 1995).

[10] AVOIDANCE: Also when the government does not gather evidence that is readily accessible and of minimal inconvenience is should be viewed as evasiveness by the government, which is suggestive of wrong doing. See Illinois v. Wardlow, 528 U.S. 119, at 124 (2000), which states “the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such” when referring to unprovoked flight. Id.