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36.2 Missing Witness

    36.2.2 Applicability Of Missing Witness Instruction Or Argument

    36.2.2.1 When Neither Party Calls Missing Witness Who Is Equally Available
    36.2.2.2 "Reverse Missing Witness" Instruction When Witness Is Codefendant Or Accomplice And Cannot Be Called By Defendant
    36.2.2.3 Missing Witness Not A Substitute For Proof Of Specific Facts
    36.2.2.4 General Instruction That No Inference Should Be Drawn From Failure To Present Evidence
    36.2.2.5 Necessity Of Addressing Missing Witness Inference, Even If No Instruction Is Given, To Avoid Negative Inferences
    36.2.2.6 Missing Witness/Missing Evidence Instruction Where Prosecution Has Failed To Use Due Diligence To Maintain Contact With Witness
    36.2.2.7 Applicability Of Missing Witness Instruction To Police Officer Not Called By Prosecution
    36.2.2.8 Applicability Of Missing Witness Instruction When Prosecution Fails To Call Victim
    36.2.2.9 Applicability Of Missing Evidence Instruction To Failure To Ask A Witness A Question On A Particular Point [Reserved]
    36.2.2.10 Weaker Or Less Satisfactory Evidence Offered By Prosecution: Consideration Of Power Of State To Gather And Produce Evidence
    36.2.2.11 Less Satisfactory Evidence Instruction As Improper Comment On Defendant's Failure To Testify

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PRACTICE NOTE: When a witness is equally available to both parties and neither party calls the witness, the jury may draw such inferences as it chooses: that the testimony would have been unfavorable to either party, to neither party, or to both. (U.S. v. Ploof (2d Cir. 1972) 464 F2d 116, 119; see also U.S. v. Nichols (2nd Cir. 1990) 912 F2d 598, 601 [if witness is equally available to both parties, instruction may permit unfavorable inference against either party].)

    But, when a witness is unavailable to both parties, no inferences, favorable or unfavorable, may be drawn from a party's failure to call the witness, absent a showing that he was under the control of either party or that his absence resulted from conduct of either party. (U.S. v. Secondino (2d Cir. 1965) 347 F2d 725, 726.) However, "where there is a likelihood of bias on the part of the person not called as a witness in favor of one party, ‘that person is not, in a true sense, "equally available" to both parties.’" (Yumich v. Cotter (7th Cir. 1971) 452 F2d 59, 64.)

See generally, FORECITE National™ 36.2.1.1 [Missing Witness: Sample Instructions].

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RATIONALE: If a potential witness is an accomplice or codefendant the defendant does not have the power to call him or her. Without a "reverse missing witness" instruction the jury may draw an inference against the defendant from the failure of the witness to testify.

    In such a situation, it may be necessary for the court to give, upon request, a "reverse missing witness instruction" in which the jury is informed that no inference may be drawn against the party who failed to produce the missing witness. (See Garrison v. State (MD 1991) 594 A2d 1264, 1269; see also Christensen v. State (MD 1975) 333 A2d 45, 49 [failure to grant defendant’s requested instruction that defense has no duty to call missing accomplice and no inference could be drawn from failure to do so was prejudicial error]; U.S. v. Pitts (DC Cir. 1990) 918 F2d 197, 200 [instruction on failure of defense to present a witness is improper when the witness could only have assisted the defendant by waiving his own 5th Amendment privilege against self incrimination]; State v. Dicks (TN 1981) 615 SW2d 126, 129.) This is so because "no inference can fairly be drawn against a defendant from his failure to call a witness to the stand to incriminate himself." (U.S. v. Glen (DC Cir. 1995) 64 F3d 706, 709-10; State v. Crews (NJ 1986) 505 A2d 198, 201 [when witness invokes 5th Amendment privilege and refuses to testify, the witness is unavailable to both parties and no adverse inference can fairly be drawn from the absence of the witness]; see also MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 3:29 [ ] (Micpel, 1999), comment.)

    See also FORECITE National™ 257.5.2 [Denial Of Immunity By Prosecution: Explanatory Instruction].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 2.3; 2.4; 5.6].

PRACTICE NOTE: The court may exclude a witness called by the defense if that witness is being called solely for the purpose of having that witness invoke his 5th Amendment privilege against self-incrimination in the presence of the jury. (State v. Kirk (OH 1995) 651 NE2d 981, 983.)

RESEARCH NOTE:

Annotation, Adverse Presumption Or Inference Based On Failure To Produce Or Examine Codefendant Or Accomplice Who Is Not On Trial -- Modern Criminal Cases, 76 ALR4th 812.

See generally, FORECITE National™ 36.2.1.1 [Missing Witness: Sample Instructions].

    You must not draw any inference against _________________ (name of defendant) from the failure of ___________________ (name of codefendant or accomplice) to testify. _____________________ (name of defendant) does not have the power to compel _____(codefendant or accomplice) to testify.

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RATIONALE: The missing witness inference effectively creates evidence from nonevidence. Therefore, it is crucial for the jury to understand that such an inference, even if applicable to the defendant, may not substitute for the prosecution’s obligation to present proof beyond a reasonable doubt of the specific facts necessary to convict.

POINTS AND AUTHORITIES: The missing witness inference "creates evidence from nonevidence." (Lawson v. U.S. (DC App. 1986) 514 A2d 787, 790; Thomas v. U.S. (DC App. 1982) 447 A2d 52, 58.)

    Hence, it may be argued that the inference should not be relied upon in whole or part to satisfy the prosecution's burden of proof. (See FORECITE National™ 36.2.2.4 [General Instruction That No Inference Should Be Drawn From Failure To Present Evidence]; compare FORECITE National™ 36.1.8 [Reasonable Doubt May Be Based On Destruction, Loss Or Suppression Of Material Evidence Alone].)

    However, if the inference is made applicable to the defendant the instructions should caution the jury that it is not a substitute for the specific evidence necessary to meet the prosecution's burden.

    See also FORECITE National™ 36.2.3.5 [No Missing Witness Inference As To Defendant Who Fails To Testify].

    See also FORECITE National™ 36.2.3.11 ["Reverse Missing Witness" Instruction Where Defendant Has No Obligation To Call Specific Witness].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 2.3].

See generally, FORECITE National™ 36.2.1.1 [Missing Witness: Sample Instructions].

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RATIONALE: Even if no specific missing witness or missing evidence instruction will be given, there is a danger that the jury will draw adverse inferences from the failure to introduce specific evidence.

POINTS AND AUTHORITIES: Alexander, MAINE JURY INSTRUCTIONS MANUAL 6-11 [Instruction 22-Missing Witnesses: No Reference]; 8-4 [Instruction: Request For Material Not Before Jury] (Lexis, 1999).

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 2.3].

See generally, FORECITE National™ 36.2.1.1 [Missing Witness: Sample Instructions].

    Either side may choose not to introduce specific evidence during the trial. Do not draw any inference, favorable or unfavorable to either party, from this. You must determine whether the prosecution has proved the defendant guilty beyond a reasonable doubt based only upon the evidence presented during the trial.

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    36.2.2.5    Necessity Of Addressing Missing Witness Inference, Even If No Instruction Is Given, To Avoid Negative Inferences

RATIONALE: If the jury is not given any instruction which addresses the potential inferences to be made from missing witnesses or missing evidence, the jury may make such inferences on its own. Hence, it may be appropriate to give a preemptive instruction which seeks to preclude the jury from drawing improper or speculative inferences.

POINTS AND AUTHORITIES: "[T]he need for an instruction becomes even clearer when the issue is viewed from the perspective of the jurors at trial. A recent article calls attention to the fact that jurors form inferences from the absence of evidence that they had expected to see produced, and suggests that judges should take such "negative inferences" into account when ruling on the admissibility of evidence. This problem is fundamental. Jurors are passive; during the course of a trial they are expected to decide issues based on incomplete evidence, evidence that is in the absolute control of the litigating parties. Naturally, questions will arise in the minds of any people put into such a situation, and jurors are no exception. Their expectations about having their questions answered will not always be fulfilled. Nor are they usually encouraged to ask their questions directly. While this may be understandable and necessary for expeditious trials of cases, it does not seem necessary to ignore the jurors' frustrations and leave them without guidance in resolving their uncertainties.

    Missing witness concerns may be appropriate to address even if the issue is not raised by the parties.  (See Yuen v. State (MD 1979) 403 A2d 819, 823 ["...even in the absence of an instruction, the jury is not precluded from drawing an adverse inference from missing evidence"]; see also Robert Stier, Revisiting the Missing Witness Inference--Quieting the Loud Voice from the Empty Chair, 44 Md.L.Rev. 137, 169 (1985).)

    Hence, if the rule is that no inference should be drawn, it may be appropriate to instruct that "no inference should be drawn by the failure...to call (that person) as a witness." (Christensen v. State (MD 1975) 333 A2d 45, 49.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 2.3].

See generally, FORECITE National™ 36.2.1.1 [Missing Witness: Sample Instructions].

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RATIONALE: If a witness is missing due to lack of diligence by the prosecution the missing witness inference may be appropriate.

POINTS AND AUTHORITIES: It is well settled that the confrontation clause of the Federal constitution (6th and 14th Amendments) requires the prosecution to exercise good faith and due diligence in obtaining and maintaining contact with confidential informants. (See Twiggs v. Superior Court (CA 1983) 34 C3d 360, 365 [194 CR 152]; Eleazer v. Superior Court (CA 1970) 1 C3d 847, 851 [83 CR 586].) Hence, when the prosecution has failed to use due diligence and a material witness is not produced, a missing witness instruction may be appropriate. (See e.g., People v. Harper (MI 1983) 337 NW2d 310, 311 [error to refuse missing witness instruction when "res gestae" witness not produced and prosecution failed to exercise due diligence in attempting to produce witness; testimony of witness was not cumulative because cross-examination could have revealed facts not mentioned in the police report].)

    See also FORECITE National™ 36.1.7 [Instruction For Brady Violation].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.6; 4.1; 6.7; 11.1].

RESEARCH NOTES:

Annotation, Adverse Presumption Or Inference Based On State's Failure To Produce Or Examine Informant In Criminal Prosecution -- Modern Cases, 80 ALR4th 547.

See generally, FORECITE National™ 36.2.1.1 [Missing Witness: Sample Instructions].

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PRACTICE NOTE: See e.g., Commonwealth v. DeCastro (MA 1987) 509 NE2d 25, 27 [defendant's invitation to jury to draw inferences adverse to prosecution from its failure to call certain police witnesses justified missing witness instruction in prosecution for distribution of and trafficking in cocaine]; see also People v. Cruz (NY 1983) 469 NYS2d 138, 140 [where prosecution did not call police officer and, until time of summation, did not offer explanation for its failure to do so, and defense counsel requested court to deliver missing witness charge, defendant was entitled to charge that failure of party to call witness under his control who is shown to be in position to give material evidence gives rise to inference that testimony would have been unfavorable].

See generally, FORECITE National™ 36.2.1.1 [Missing Witness: Sample Instructions].

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PRACTICE NOTE: See People v. Jackson (NY 1986) 504 NYS2d 953 [defendant was entitled to instruction that jury may draw unfavorable inference from state's failure to call victim as witness, though witness was out of state, where victim had previously testified for prosecution and prosecution knew victim's whereabouts but did not demonstrate attempt to contact her or obtain her presence at trial].

See generally, FORECITE National™ 36.2.1.1 [Missing Witness: Sample Instructions].

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    36.2.2.9    Applicability Of Missing Evidence Instruction To Failure To Ask A Witness A Question On A Particular Point [Reserved]

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RATIONALE: The power of the prosecution to gather and produce evidence is a factor which affects the weight of any inference from the failure of the prosecution to present seemingly important evidence and thus gives rise to a further inference that the evidence would have been adverse to the prosecution.

POINTS AND AUTHORITIES: While cautioning against the use of this instruction in criminal cases except in rare cases (see People v. Romero (CA 1966) 244 CA2d 495, 504 [53 CR 60]), the cases nevertheless recognize that the instruction may be appropriate "when it can be shown that a party is in fact in possession or has access to better and stronger evidence than was presented." (See People v. Von Villas (CA 1992) 10 CA4th 201, 245 [13 CR2d 62]; People v. Taylor (CA 1977) 67 CA3d 403, 412 [136 CR 640].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 6.7].

See generally, FORECITE National™ 36.2.1.1 [Missing Witness: Sample Instructions].

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PRACTICE NOTE:  "The less satisfactory evidence instruction is probably as much a comment on the evidence as some other instructions that have since been discredited. [Citations.] When the defendant does not testify or present any evidence, this instruction may improperly comment on the defendant's privilege not to testify or to present any evidence. Also it may improperly tend to shift the burden of proof to the defendant. Therefore, when a defendant did not testify and objected to the court giving the less satisfactory instruction, it was reversible error to give it. [Citations.]" (UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 1025 [Less Satisfactory Evidence (State’s Burden Of Proof)] Appendix, Part B, Oregon State Bar, 1998.)

See generally, FORECITE National™ 36.2.1.1 [Missing Witness: Sample Instructions].