Non-Disclosure of Evidence, Adverse Inferences and the Court's Search for Truth

Abstract

Professor Molot examines the interaction of two omnipresent and often con flicting premises of the trial process: the "truth theory" and the adversary system. In order to promote pure adversarial struggle and thereby allow either side to present its strongest case, it would appear necessary to ac cord counsel ultimate discretion as to whether known evidence should be disclosed at trial or concealed. The author observes, however, that such unlimited discretion has been modified by the courts and the legislatures in order to insure the presentation of complete and truthful evidential picture. As result of this necessary modification certain adverse inferen ces of fact have been developed to aid the court in assessing the effect of non-disclosure on the evidence adduced by either adversary. Using the "truth theory" and the "adversary theory" as foundation the author dis cusses the development of adverse inferences in the light of case law, both criminal and civil, in order to define and evaluate some of the underlying principles of the trial process.