“Deafening silence” is not an oxymoron. For better or worse, silence can be a powerful form of communication. And sometimes it’s not what is said, but what is not said, that finds its way into evidence at trial.
There are two basic types of silence which are addressed in Texas evidentiary law. The first involves nonverbal conduct which substitutes for a verbal expression, such as the pointing of a finger or the nod of a head. This type of silent communication will be discussed in more detail in the next blog in this series.
The second type of nonverbal communication is more subtle. It is mere silence accompanied by no other conduct which would indicate an intent to communicate. It is the second type of silence that carries with it the most risk, because the simple act of remaining mute may be admissible as an admission against interest under certain circumstances.
Generally speaking, Texas law provides that if a statement is made in another’s presence, mere silence on the listener’s part will not constitute an adoption of the truth of the statement. Failure to speak up in that situation would be no proof as to the truth or falsity of the words actually spoken. However, when a statement is made in another’s presence which affects that party or his rights and is of such a nature as to call for a reply, then the statement, in connection with a total or partial failure to reply, is admissible as an admission to show a concession of the truth of the facts stated. Miller v. Dyess, 151 S.W.2d 186 ( Tex. 1941).
For example, in Dodd v. Harper, a trial court rejected a claim against a decedent’s estate, finding that the contract upon which the claim was based was illegal and unenforceable. At trial, there was no direct evidence proving the illegal nature of the contract. Nevertheless, the court of appeals affirmed, holding that when the creditor failed to contradict the administrator’s explanation as to why he would not honor the claim (because the cash loan was to carry a 5-to-1 payoff on an illegal drug transaction), his silence was a concession of the truth of the facts stated. 670 S.W.2d 646, 650 (Tex. App. — Houston [1st Dist.] 1983). Rather than deny the administrator’s allegations, the creditor only countered that if the decedent were still alive he would have been “a gentleman” and repaid the money. This partial failure to reply constituted an admission sufficient to support a finding that the creditor and the decedent had been involved in an illegal drug deal. Id.
Dodd further highlights the fact that although silence in the face of accusation may give rise to an admission, such admission is not direct evidence, but circumstantial evidence. As such, the admission is subject to the equal inference rule, i.e., that when circumstantial evidence gives rise to two or more inferences, none more probable than another, neither inference may be reasonably inferred. Hence, an admission by silence will arise only when no other explanation is equally consistent with silence. West v. Austin National Bank, 427 S.W.2d 906 (Tex. App. — San Antonio 1968).
Admissions by silence have also been found in statements made which omit facts later alleged. Texas General Indemnity Co. v. Scott, 253 S.W.2d 651 ( Tex. 1953). If the omitted fact was so important that a person would ordinarily have been expected to relate it, the failure to mention the fact in a prior statement is an admission that the event did not occur. Waldon v. City of Longview, 855 S.W.2d 875 (Tex. App. — Tyle 1993) (finding no error in admitting a prior statement containing no mention of the use of a turn signal after the plaintiff testified at trial as to the use of the signal prior to the collision).
There are some circumstances under which an admission by silence will not occur. Besides being subject to the equal inference rule discussed above, an admission will not arise:
- when it is not shown that the party sought to be bound by the admission was present when the statement was made. Eardley v. Eardley, 253 S.W.2d 69 (Tex. App. — San Antonio 1952).
- when the silent party would not know whether the statement was true or not. West at 909.
- when the silent party did not fully hear or understand the statement made. Landers v. Overaker, 141 S.W.2d 451 (Tex. App. — Dallas 1940) (85 year-old grandmother didn’t fully hear or understand statements made in her presence).
“Why should I dignify that with a reply?” It’s a rhetorical question we hear frequently which is usually intended to communicate the idea that the accusation itself is unfairly disparaging or without merit. But in the legal world, this rhetorical question (especially when it is unspoken) is worthy of serious contemplation, and its answer can have significant practical implications.
It’s not only the things your clients say that can get them into trouble. The things left unsaid can cause problems, too.
— Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas