Silence as Evidence
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A party’s silence in the face of an allegation or question may be of evidential significance if a response could reasonably have been expected in the circumstances. The party’s failure to respond may amount to a tacit acceptance of an allegation made against him or demonstrate his consciousness of guilt, or it may simply undermine the credibility of a defence raised for the first time by him at the trial. In the absence of a credible alternative explanation the party’s silence (or rather the inference drawn from it) may be significant enough to amount to a confession, or it may be regarded as just another item of circumstantial evidence supporting his opponent’s case. The tribunal of fact must rely on its experience of human nature to determine whether any inference should be drawn, and, if so, what weight should be attached to it. Each case will of course turn on its own facts, but relevant circumstances will include the silent party’s personality, the context of any questioning or allegation, the frame of mind of the persons present and the seriousness of the occasion. Silence is generally an unreliable source from which to draw inferences because people remain silent for so many different reasons; extreme caution therefore needs to be exercised before any such inference is drawn. In particular, an adverse inference may properly be drawn from a party’s silence only if his innocent explanation has been rejected by the tribunal of fact.
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