CACI 204 Willful Suppression of Evidence

New September 2003; Revised October 2004

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This instruction should be given only if there is evidence of suppression. (In re Estate of Moore (1919) 180 Cal. 570, 585 [182 P. 285]; Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1051 [213 Cal.Rptr. 69]; County of Contra Costa v. Nulty (1965) 237 Cal.App.2d 593, 598 [47 Cal.Rptr. 109].)

If there is evidence that a party improperly altered evidence (as opposed to concealing or destroying it), users should consider modifying this instruction to account for that circumstance.

In Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12 [74 Cal.Rptr.2d 248, 954 P.2d 511], a case concerning the tort of intentional spoliation of evidence, the Supreme Court observed that trial courts are free to adapt standard jury instructions on willful suppression to fit the circumstances of the case, “including the egregiousness of the spoliation and the strength and nature of the inference arising from the spoliation.”

• Willful Suppression of Evidence. Evidence Code section 413.

• Former Code of Civil Procedure section 1963(5) permitted the jury to infer “[t]hat the evidence willfully suppressed would be adverse if produced.” Including this inference in a jury instruction on willful suppression is proper because “Evidence Code section 413 was not intended as a change in the law.” (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 994 [16 Cal.Rptr.2d 787], disapproved of on other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664 [25 Cal.Rptr.2d 109, 863 P.2d 179].)

• “The rule of [present Evidence Code section 413] … is predicated on common sense, and public policy. The purpose of a trial is to arrive at the true facts. A trial is not a game where one counsel safely may sit back and refuse to produce evidence where in the nature of things his client is the only source from which that evidence may be secured. A defendant is not under a duty to produce testimony adverse to himself, but if he fails to produce evidence that would naturally have been produced he must take the risk that the trier of fact will infer, and properly so, that the evidence, had it been produced, would have been adverse.” (Williamson v. Superior Court of Los Angeles County (1978) 21 Cal.3d 829, 836 fn. 2 [148 Cal.Rptr. 39, 582 P.2d 126], original italics.)

• “We can see no error in the trial court’s ruling [giving this instruction]. The jury was told only that it could ‘consider whether one party intentionally concealed or destroyed evidence.’ Defendants were free to present the jury with evidence that (as counsel represented to the court), the redactions were only of telephone numbers, and that the failure to interview certain witnesses was proper, and to argue that evidence to the jury.” (Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 273 [150 Cal.Rptr.3d 861].)