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Cops Lose Appeal Over 'Missing Evidence' Instruction

By Brett Snider, Esq. on July 12, 2013 | Last updated on January 24, 2023

Even if the appellants are cops, the D.C. Circuit won’t overturn a district court’s jury instruction unless there is a showing that it caused prejudice. It was a tough break in Huthnance v. District of Columbia for two cops who had judgments against them for wrongful arrest and general rights violations in arresting Lindsay Huthnance, who was awarded $105,000 in compensatory and punitive damages. But as the D.C. Circuit rightly points out, they could have prevented the outcome.

Huthnance's Arrest

The appellants in the case, the two officers who arrested Huthnance, were alleged to have arrested her erroneously for making a comment to the officers inside a 7-Eleven. The jury found for Huthnance on the strength of evidentiary rulings and jury instructions that were in the plaintiff's favor, appellants argued. The key piece of evidence that was the focus of these rulings and jury instructions was a police radio log, which Huthnance had been told during discovery in a prior deposition did not match with her case, yet was mysteriously reintroduced by the appellants during their trial.

"Missing Evidence" Instruction

The court properly granted a motion in limine to exclude this evidence (the appellants had a chance to list this evidence pre-trial and were sanctioned), but the D.C. Circuit disagreed that the "missing evidence" instruction was necessary. In general, the instruction that missing evidence should be presumed as either non-existent or unfavorable to the non-producing party is appropriate when one party could have produced the evidence that is relevant to resolving a material issue. The Supreme Court, in a WWII-era case, acknowledged that when strong evidence is not presented in favor of weak evidence, the presumption of silence is that the evidence is adverse to that party. The Huthnance Court didn't feel this was that sort of case, and that the kind of gamesmanship imagined by the missing evidence principle when the exclusion of that evidence served the proper purpose.

Prejudicial Error

... That being said, the D.C. Circuit found that the district court's ruling, while erroneous, wasn't substantially prejudicial enough to overturn the ruling. This is mostly the appellants' fault, who were chided throughout the Huthnance Court's opinion for doing very little to nothing to show to the court that this instruction prejudiced them. Particularly damning was the fact that the court had also issued a missing witness jury instruction, as the appellants had failed to produce two eyewitnesses which they mentioned in testimony, but which the officers did not argue was prejudicial. Because many other uncontested evidence and testimony held more weight than the erroneous instructions, it was harmless error, and the Huthnance Court affirmed the lower court's ruling.

Bottom Line

This case was fishy from the start, and the D.C. Circuit smelled baloney emanating from both officers' appellate brief. If you want the Court to overturn a jury verdict, you better bring hold up your end of the error equation and show substantial prejudice.

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