2021 Georgia Code
Title 24 - Evidence
Chapter 14 - Proof Generally
Article 2 - Presumptions and Estoppel
§ 24-14-22. Presumption From Failure to Produce Evidence

If a party has evidence in such party's power and within such party's reach by which he or she may repel a claim or charge against him or her but omits to produce it or if such party has more certain and satisfactory evidence in his or her power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against such party is well founded; but this presumption may be rebutted.

(Code 1981, §24-14-22, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

- For article, "Spoliation of Evidence," see 8 Ga. St. B.J. 12 (2003). For note, "Spoliating the Adverse Inference Instruction: The Impact of the 2015 Amendment to Federal Rule of Civil Procedure 37(E)," see 51 Ga. L. Rev. 917 (2017). For note, "Georgia's Approach to Proportionality and Sanctions for the Spoliation of Electronically Stored Information,” see 37 Ga. St. U.L. Rev. 603 (2021). For comment on Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964), see 1 Ga. St. B.J. 550 (1965). For comment discussing the right to present evidence for the purposes of rebutting presumption, in light of Vlandis v. Kline, 412 U.S. 441, 93 S. Ct. 2230, 37 L. Ed. 2d 63 (1973), see 10 Ga. St. B.J. 484 (1974).

ANALYSIS

• General Consideration
• Illustrations

RESEARCH REFERENCES

Am. Jur. 2d.

- 29 Am. Jur. 2d, Evidence, § 259 et seq.

Intentional Spoliation of Evidence, 18 POF3d 515.

- 31A C.J.S., Evidence, § 239.

- Validity of statute making concealment of or failure to produce books or papers presumptive evidence, 4 A.L.R. 471.

Constitutionality of statutes or ordinances making one fact presumptive or prima facie evidence of another, 51 A.L.R. 1139; 86 A.L.R. 179; 162 A.L.R. 495.

Adverse inference from failure of party to produce available witness or evidence, as affirmative or substantive proof, 70 A.L.R. 1326.

Presumption of death as evidence, 115 A.L.R. 404.

Presumption or inference from party's failure to produce witnesses within his control, as affected by his introduction of some evidence on the matter in question, 135 A.L.R. 1375.

Presumption and burden of proof as regards continuance or revocation of will produced for probate, 165 A.L.R. 1188.

Admissibility of evidence of party's refusal to permit examination or inspection of property or person, 175 A.L.R. 234.

Relationship between party and witness as giving rise to or affecting presumption or inference from failure to produce or examine witness, 5 A.L.R.2d 893.

Effect of presumption as evidence or upon burden of proof, where controverting evidence is introduced, 5 A.L.R.3d 19.

Modern status of the rules against basing an inference upon an inference or a presumption upon a presumption, 5 A.L.R.3d 100.

Hospital's liability for injuries sustained by patient as a result of restraints imposed on movement, 25 A.L.R.3d 1450.

Propriety and prejudicial effect of comment or instruction by court with respect to party's refusal to permit introduction of privileged testimony, 34 A.L.R.3d 775.

Adverse presumption or inference based on failure to produce or examine codefendant or accomplice who is not on trial - modern criminal cases, 76 A.L.R.4th 812.

Adverse presumption or inference based on party's failure to produce or question examining doctor - modern cases, 77 A.L.R.4th 463.

Adverse presumption or inference based on party's failure to produce or examine that party's attorney - modern cases, 78 A.L.R.4th 571.

Adverse presumption or inference based on party's failure to produce or examine witness who was occupant of vehicle involved in accident - modern cases, 78 A.L.R.4th 616.

Adverse presumption or inference based on party's failure to produce or examine spouse - modern cases, 79 A.L.R.4th 694.

Adverse presumption or inference based on party's failure to produce or examine friend - modern cases, 79 A.L.R.4th 779.

Adverse presumption or inference based on party's failure to produce or examine family member other than spouse - modern cases, 80 A.L.R.4th 337.

Adverse presumption or inference based on state's failure to produce or examine law enforcement personnel - modern cases, 81 A.L.R.4th 872.

Adverse presumption or inference based on party's failure to produce or examine transferor, transferee, broker, or other person allegedly involved in transaction at issue - modern cases, 81 A.L.R.4th 939.

Effect of spoliation of evidence in tort actions other than product liability actions, 121 A.L.R.5th 157.

Electronic spoliation of evidence, 3 A.L.R.6th 13.