California Civil Jury Instruction CACI No 205 Failure to Explain or Deny Evidence

205. Failure to Explain or Deny Evidence

If a party failed to explain or deny evidence against [him/her/nonbinary pronoun/it] when [he/she/nonbinary pronoun/it] could reasonably be expected to have done so based on what [he/she/nonbinary pronoun/it] knew, you may consider [his/her/nonbinary pronoun/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.

Secondary Sources

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[3] (Matthew Bender)

4 California Trial Guide, Unit. 90, Closing Argument, § 90.30[2] (Matthew Bender) California Judges Benchbook: Civil Proceedings—Trial § 11.10 (Cal CJER 2019)