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36.2 Missing Witness

    36.2.3 Challenging Missing Witness Instruction

    36.2.3.1 Strategies For Resisting Missing Witness Instruction Or Argument Against Defendant
    36.2.3.2 Circumstances Which May Defeat The Missing Witness Inference
    36.2.3.3 No Missing Witness Inference If Witness Would Be Hostile
    36.2.3.4 Missing Witness Instruction Should Not Be Used Against Defendant
    36.2.3.5 No Missing Witness Inference As To Defendant Who Fails To Testify
    36.2.3.6 Use Of Missing Witness Inference Against Defendant Who Has Burden To Prove Affirmative Defense
    36.2.3.7 Missing Witness Inference Must Be Proven Beyond A Reasonable Doubt Before Being Applied To Defendant
    36.2.3.8 Missing Witness Inference As Violation Of Confrontation
    36.2.3.9 Objection To Missing Witness/Missing Evidence Instruction Based On Time Limits Or Other Restrictions Placed On The Defense
    36.2.3.10 Missing Witness/Missing Evidence Instruction Should Not Be Given In Close Case
    36.2.3.11 "Reverse Missing Witness" Instruction Where Defendant Has No Obligation To Call Specific Witness

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    36.2.3.1    Strategies For Resisting Missing Witness Instruction Or Argument Against Defendant

RESEARCH NOTES:

See generally, FORECITE National™ 36.2.3.4 [Missing Witness Instruction Should Not Be Used Against Defendant].

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

See also generally, FORECITE National™ 36.2.3.7 [Missing Witness Inference Must Be Proven Beyond A Reasonable Doubt Before Being Applied To Defendant].

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

RELATED FEDERAL MODEL INSTRUCTIONS:

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

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    36.2.3.2    Circumstances Which May Defeat The Missing Witness Inference

PRACTICE NOTE: Certain characteristics of the witness or of his relationship with the party against whom the inference is sought may make him actually or effectively unavailable and/or may undermine the validity of the inference that his testimony would be unfavorable. Inferences have been found inappropriate where the witness was:

    !  Not amenable to subpoena. (Wynn v. U.S. (DC Cir. 1967) 397 F2d 621.)

    !  Unable to testify. (Conboy v. State (TN 1970) 455 SW2d 605 [witness under care of physician and unable to attend court].)

    !  In an unknown location. (U.S. v. Wilson (DC Cir. 1976) 534 F2d 375.)

    !  Not shown to be competent. (State v. Francis (TN 1984) 669 SW2d 85.)

    !  Not located by a good faith but unsuccessful effort by the nonproducing party, even if belated. (Nowlin v. U.S. (DC App. 1978) 382 A2d 9 [government effort to find witness the day before trial found sufficient even though government had known of witness prior to time of grand jury]; compare Harris v. U.S. (DC App. 1981) 430 A2d 536 [defendant’s efforts to locate missing witness, a minister, found insufficient].)

    !  Hostile in fact, despite the relationship. (State v. DePaola (NJ 1950) 73 A2d 564, 574 [since the evidence showed great hostility of wife toward her husband, state may not comment on his failure to call her].)

    !  Privileged. (Bowles v. U.S. (DC Cir. 1970) 439 F2d 536 [where defense was that another person committed crime, court’s refusal to allow defendant to call that person to stand, when it ascertained he would assert his 5th Amendment privilege was proper, as was court’s denial to defendant of missing witness instruction and its admonition not to mention the witness’s absence in closing; however, if requested, it would have been error for court to refuse to give instruction that no inference could be drawn from the witness’s absence since he was not available to either side]; James v. State (GA 1967) 157 SE2d 471, 476; Christensen v. State (MD 1975) 333 A2d 45, 46 [absence of accomplice does not give rise to adverse inference because the accomplice would presumably assert his 5th Amendment privilege]; Commonwealth v. Niziolek (MA 1980) 404 NE2d 643, 646 [since verdict and sentencing were complete and unconditional in codefendant’s case, there was no impediment to his availability]; State v. Moore (MO 1981) 620 SW2d 370, 373 [no support in the record for defendant’s contention that codefendants refused to testify at defendant’s trial by asserting a 5th Amendment privilege].)

    !  Covered by a privilege that could be asserted by defendant. (U.S. v. Burkhart (6th Cir. 1974) 501 F2d 993, 995 [defendant waived the marital privilege as to his wife’s testimony by introducing her statements during cross-examination of government witnesses].)

    !  Identified by the defendant as the perpetrator of the crime. (Pennewell v. U.S. (DC Cir. 1965) 353 F2d 870, 871.)

RELATED FEDERAL MODEL INSTRUCTIONS:

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

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    36.2.3.3    No Missing Witness Inference If Witness Would Be Hostile

PRACTICE NOTE: See TENNESSEE PATTERN INSTRUCTIONS - CRIMINAL, T.P.I.-Crim 42.16(b) [Alternative Instruction: Absent Material Witness] (West, 5th ed. 2000)) comment [inference does not arise and instruction should not be given if, inter alia, the "witness would be prejudiced against or hostile to the party who has not called him or her"].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

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    36.2.3.4    Missing Witness Instruction Should Not Be Used Against Defendant

RATIONALE: Because the defendant normally has no burden to produce any evidence, it would be improper for the jury to draw an inference against the defendant for failure to call a particular witness.

POINTS AND AUTHORITIES: It has been suggested that the missing witness instruction should be limited to the prosecution's case. (See e.g., State v. Greene (OR 1978) 583 P2d 1171, 1174 ["[t]he instruction unnecessarily called attention to defendant's failure to testify, was therefore error, and requires reversal"]; see also State v. Mains (OR 1983) 669 P2d 1112, 1117; see also Commonwealth v. Bird (PA 1976) 361 A2d 737, 739 [reversible error to instruct jury that it could draw inference against defendant for failure to call bystander as witness even though the instruction also permitted the jury to draw an inference against the prosecution for its failure to call the same witness].)

    "If the district judge uses this instruction, it should not be used against the defendant who offers no evidence in his defense. The jury is consistently instructed that the burden is on the government and the defendant is under no obligation to prove his innocence. The use of the instruction in this situation would severely undercut this view." (Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 39 [Inference From Fact That Witness Not Called] commentary (1988); see also WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 345 [Missing Witness] (University of Wisconsin Law School, 1999) comment).)

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

    See also FORECITE National™ 36.2.3.7 [Missing Witness Inference Must Be Proven Beyond A Reasonable Doubt Before Being Applied To Defendant].

    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 1.1; 2.2; 2.3].

USE NOTE: Same Concerns Apply To Less Satisfactory Evidence Instruction. See FORECITE National™ 36.2.2.11 [Less Satisfactory Evidence Instruction As Improper Comment On Defendant's Failure To Testify].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

SAMPLE INSTRUCTION:

    The prosecution has the burden of proving the defendant guilty beyond a reasonable doubt.  Therefore, you may draw an inference adverse to the prosecution from the failure of the prosecution to present certain evidence.  However, the defendant  is not required to call any witnesses or to otherwise establish his or her own innocence.  You may not draw any inference against the defendant from (his/her) failure to call any particular witness or witnesses.

[Cf. Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 6:15 [Witnesses-Missing Witness Inference] ¶ 3 (West, 1999).]

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    36.2.3.5    No Missing Witness Inference As To Defendant Who Fails To Testify

RATIONALE: Use of a missing witness instruction when the defendant fails to testify unconstitutionally chills the defendant's 5th Amendment privilege against self incrimination.

POINTS AND AUTHORITIES: A missing witness instruction may not be given as a result of the defendant's failure to testify, because a negative inference drawn from the defendant's failure to testify creates an unconstitutional chilling effect upon the defendant's unfettered exercise of the 5th amendment privilege against compelled self incrimination. (See Griffin v. California (1965) 380 US 609, 615 [85 SCt 1229; 14 LEd2d 106]; see also State v. Greene (OR 1978) 583 P2d 1171, 1174 ["[t]he instruction unnecessarily called attention to defendant's failure to testify, was therefore error, and requires reversal"]; State v. Mains (OR 1983) 669 P2d 1112, 1117; MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI -- Cr 3:29 Comment [Missing Witness] ¶ 4 (Micpel, 1999.).)

    Hence, the jury should understand that it is not permissible to draw a missing witness inference from the failure of the defendant 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 1.1; 2.2; 2.3].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

SAMPLE INSTRUCTION:

    The defendant has a constitutional right not to testify and has no obligation to present any evidence.  (His/Her) failure to testify and/or to present any particular evidence or witnesses must not be considered against [him] [her].

[Cf. TENNESSEE PATTERN INSTRUCTIONS - CRIMINAL, T.P.I.-Crim 42.16 [Absent Material Witness] (West, 5th ed. 2000).]

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    36.2.3.6    Use Of Missing Witness Inference Against Defendant Who Has Burden To Prove Affirmative Defense

PRACTICE NOTE: The rationale for precluding a missing witness or missing evidence instruction against the defendant may not be applicable when the defendant has the affirmative burden of proof as to a defense. (See State v. Mains (OR 1983) 669 P2d 1112, 1117; see also UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 1026 [Less Satisfactory Evidence (Defendant’s Burden of Proof] (Oregon State Bar, 1998).)

RELATED FEDERAL MODEL INSTRUCTIONS:

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

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    36.2.3.7    Missing Witness Inference Must Be Proven Beyond A Reasonable Doubt Before Being Applied To Defendant

PRACTICE NOTE: Another approach to the missing witness problem is to permit the inference to be drawn against the defendant but only if the truth of the inference has been proven beyond a reasonable doubt. (See e.g., Commonwealth v. Johnson (MA 1995) 656 NE2d 929, 931.)

    See also FORECITE National™ 270.4.1 [Reasonable Doubt As To Any Element Or Essential Fact By Any Juror Precludes Conviction ].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

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    36.2.3.8    Missing Witness Inference As Violation Of Confrontation

PRACTICE NOTE: The missing witness instruction, if given when a witness is not peculiarly within the control of the defendant, unfairly permits the jury to infer that the witness's testimony would be unfavorable to the defendant, without affording the defendant an opportunity to interrogate the witness in the presence of the jury. Thus the requirement, that the witness be peculiarly within the control of the party, must be strictly followed. (See e.g., Hayes v. State (MD 1984) 470 A2d 1301, 1306-07.)

    See also FORECITE National™ 300.26 [Confrontation Or Cross-Examination].

RESEARCH NOTES:

See Capital Punishment Handbook [4.1.4 a. Right To Confront And Cross-Examine Witnesses: General Principles And Authorities].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

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    36.2.3.9    Objection To Missing Witness/Missing Evidence Instruction Based On Time Limits Or Other Restrictions Placed On The Defense

PRACTICE NOTE: If time limits or restrictions have been placed upon the defendant in terms of trial preparation, this may be a basis for objecting to an instruction regarding the failure to present all evidence and/or for a supplementary instruction explaining that the defense was precluded from presenting all witnesses as a result of time restrictions, limited funds, etc.

RELATED FEDERAL MODEL INSTRUCTIONS:

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

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    36.2.3.10    Missing Witness/Missing Evidence Instruction Should Not Be Given In Close Case

PRACTICE NOTE: In a close case, it may be appropriate to relegate the missing witness rule to argument because the jury is more likely to give undue weight to the inference if communicated by the judge than by counsel. (See Davis v. State (MD 1993) 633 A2d 867, 879-80.) Assuming that one party is entitled to a missing witness instruction, the court’s failure to grant it does not take away the negative inference that arises against the opposing party. It merely relegates the missing witness inference to the catch-all group of unspecified inferences, as opposed to highlighting this particular inference. (See Yuen v. State (MD 1979) 403 A2d 819, 823.)

RELATED FEDERAL MODEL INSTRUCTIONS:

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

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    36.2.3.11    "Reverse Missing Witness" Instruction Where Defendant Has No Obligation To Call Specific Witness

RATIONALE: Where an inference of guilt based on the defendant’s failure to call a witness would undermine the prosecution’s burden of proof or where the defendant has otherwise established that he or she has no obligation to call the witness, a specific instruction to the jury may be necessary to preclude the jury from making the improper inference.

POINTS AND AUTHORITIES: It has been held that a "reverse missing witness" instruction may be appropriate where it is beyond the power of the defendant to call a particular witness such as a codefendant or immunized witness (e.g., FORECITE National™ 257.5.2 [Denial Of Immunity By Prosecution: Explanitory Instruction].) It may be argued that the same rationale should apply to any issue as to which the prosecution has the burden of proof. Otherwise the jury could improperly find the defendant guilty simply because he or she relied on his constitutional rights. (See e.g., FORECITE National™ 300.23 [Privilege Against Self-Incrimination]. 

See also FORECITE National™ 36.2.2.2 ["Reverse Missing Witness" Instruction When Witness Is Codefendant Or Accomplice And Cannot Be Called By Defendant].

    See also FORECITE National™ 36.2.3.4 [Missing Witness Instruction Should Not Be Used Against Defendant].

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

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

RELATED FEDERAL MODEL INSTRUCTIONS:

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

SAMPLE INSTRUCTION:

    You must not draw any inference against the defendant from the failure of any witness to testify. Because the prosecution bears the burden of proof, the defendant has no obligation to call any particular witness or any witnesses at all.