Whether a party to a civil lawsuit has, by his conduct or silence, made an admission of the truth or existence of one or more facts which are inconsistent with the claim he is asserting in the action.

Criminal proceedings: Sentencing court could not draw adverse inference from defendant's silence in determining facts relating to circumstances and details of the crime. U.S.C.A. Const.Amend. 5. Mitchell v. U.S., 526 U.S. 314, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999);

Silence constitutes admission in civil proceedings only when circumstances are such that one ought to speak and does not. Harmon v Mifflin County Sch. Dist. (1996, Pa Cmwlth) 684 A2d 651.

§ 10. Admissions by silence--In general

There is a generally accepted rule of human conduct which holds that a person will usually try to repel an imputation or claim that has no foundation in fact. An unavoidable corollary of this rule, often expressed in the maxim "Qui tacet consentire videtur," [FN47] serves as the basis for the generally recognized principle that, subject to various qualifications, a person's silence may be construed for evidentiary purposes as a tacit admission of the facts stated where a statement is made in his presence in regard to facts affecting his rights, and he makes no reply. [FN48] Evidence of such silence is most commonly admitted in accident litigation where a party fails to respond to an accusation of fault, or to some other statement regarding the circumstances of the accident, made in his presence. [FN49]

FN47. "He who is silent is supposed to consent." See Comment: Admission by Silence in Civil Cases, 17 Syracuse L Rev 507 (Spring 1966).

FN48. See, for example, Ruth v Rhodes, 66 Ariz 129, 185 P2d 304; Beck v Dye, 200 Wash 1, 92 P2d 1113. See also 2 Jones on Evidence (6th ed.) § 13:49.

Admissibility of evidence of party's silence, as implied or tacit admission, when a statement is made by another in his presence regarding circumstances of an accident, 70 A.L.R. 2d 1099 § 3.

Despite the general rule of admissibility, there is clearly something of an uncertainty that attends the interpretation of a person's silence as an implied admission of a statement made by someone else, and this uncertainty has led many courts to consider evidence of such silence as dangerous and to be received only with caution. Accordingly, it is frequently held that evidence of a party's silence cannot be introduced as proof of an admission unless the following conditions are shown to have existed: (1) the statement in question was made in the party's presence and hearing, [FN50] (2) the party was capable of understanding the meaning of the statement, [FN51] (3) the party had sufficient knowledge of the facts embraced in the statement to reply thereto, [FN52] (4) the party was at liberty to deny the statement or otherwise respond to it, [FN53] (5) the statement was made under such circumstances as would naturally call for a reply, [FN54] and (6) the statement was made by a person normally entitled to a reply. [FN55] In other words, there must be a specific showing that the silent party adopted the statement by failing to refute it. [FN56] It is also helpful to show that the party at no time contradicted his implied admission with an express denial of the statement in question; courts have frequently rejected all evidence of an admission where there is the slightest showing of a denial, [FN57] holding, for example, that evidence of an admission by silence must be excluded where the party tacitly acquiesces in the statement made in his presence but later denies the truth of what was said. [FN58]

FN57. Carroll v Guffey, 20 Ill App 2d 470, 156 NE2d 267; Muirhead v Challis, 213 Iowa 1108, 240 NW 912; Refrigeration Discount Corp. v Catino, 330 Mass 230, 112 NE2d 790. Heller, Admissions by Acquiescence, 15 U Miami L Rev 161, 169 (Winter 1960).

FN58. Skiskowski v United States, 81 App DC 274, 158 F2d 177, cert den 330 US 822, 91 L Ed 1273, 67 S Ct 769, reh den 331 US 870, 91 L Ed 1872, 67 S Ct 1749; Heller, 15 U Miami L Rev 161, 169.