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 VOLUME 4 - CHAPTER 36
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36.2 Missing Witness

    36.2.4 Argument To Jury Regarding Missing Witnesses

    36.2.4.1 Missing Witness Argument To Jury: Prior Approval Of Court Required
    36.2.4.2 Missing Witness Argument To Jury By Defendant
    36.2.4.3 Missing Witness: Same Concerns Apply To Argument As To Jury Instructions

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 VOLUME 4 - CHAPTER 36

PRACTICE NOTE:  Because a missing witness argument "creates evidence from the absence of evidence," it may only be made with the court's permission. (Burgess v. U.S. (DC Cir. 1970) 440 F2d 226, 234; U.S. v. Beeler (6th Cir. 1978) 587 F2d 340, 343; U.S. v. Blakemore (6th Cir. 1973) 489 F2d 193, 196; U.S. v. Valles (7th Cir. 1994) 41 F3d 355, 360; U.S. v. Rollins (7th Cir. 1988) 862 F2d 1282, 1297-99; State v. Clark (CT 1998) 713 A2d 834, 845; Harris v. U.S. (DC App. 1992) 602 A2d 154, 161-62; Chappell v. U.S. (DC App. 1987) 519 A2d 1257, 1259; McGrier v. U.S. (DC 1991) 597 A2d 36, 47.)

    Hence, "where counsel for either the state or the defendant intends to argue to the jury that an unfavorable inference be drawn from the absence of a witness at trial, an advance ruling from the trial court should be sought and obtained. At that time, the trial court should determine whether the defendant’s 5th Amendment right not to testify would be violated by the proposed argument and whether there is sufficient evidence for the jury to find that the absent witness is (1) available to the party against whom the inference is sought to operate and (2) one whom that party would naturally be expected to produce." (State v. Daniels (CT 1980) 429 A2d 813, 819; see also State v. Canty (CT 1992) 613 A2d 1287, 1296; OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, 4 OJI 405.10 [Exclusion Not Evidence] ¶ 5 (Anderson, 2000) (citing Silveous v. Rensch (OH 1969) 353 NE2d 758, 759) [Missing Witness: No Instruction Recommended].)

    See also FORECITE National™ 36.2.4.3 [Missing Witness: Same Concerns Apply To Argument As To Jury Instructions].

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

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 VOLUME 4 - CHAPTER 36

PRACTICE NOTE: The defense should be "allowed to argue that the government's failure to produce relevant evidence within its control gives rise to an inference that the evidence would be unfavorable to it. [Citations]." (U.S. v. Tory (9th Cir. 1995) 52 F3d 207, 211; see also U.S. v. Sblendorio (7th Cir. 1987) 830 F2d 1382, 1390-94.)

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

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VOLUME 4 - CHAPTER 36

PRACTICE NOTE:  The missing witness instruction is essentially a comment on the evidence.  (SeeDowney v. Weston (PA 1973) 301 A2d 635, 640.)  Hence, the courts may be inclined to leave the missing witness inference entirely to counsel to argue to the jury. (PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 3.21A [Failure To Call Potential Witness] (Pennsylvania Bar Institute, PBI Press, 08/85).)

    However, regardless of whether the instruction is given, the court may have to instruct the jury to disregard counsel’s missing witness arguments if they are improper. (See e.g., Commonwealth v. Newmiller (PA 1979) 409 A2d 834, 839 [where no evidence that witness was peculiarly within reach of either party, missing witness argument was improper]; see also PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 3.21A [Failure To Call Potential Witness] (Pennsylvania Bar Institute, PBI Press, 08/85).)

    The basis for allowing either argumentative comment or a request for a missing witness instruction "is the simple proposition that if a party has evidence which will illuminate questions in issue and fails to present it, it may be inferred that such evidence would be harmful to his case." (United States v. Johnson (1st Cir. 1972) 467 F2d 804, 808; accord Graves v. United States (1893)150 US 118, 121 [14 SCt 40; 37 LEd 1021] ["if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable"]; Steinhilber v. McCarthy (D.Mass. 1998) 26 FSupp2d 265 [same].)

    See also FORECITE National™ 36.2.4.1 [Missing Witness Argument To Jury: Prior Approval Of Court Required].

    See also FORECITE National™ 36.2.4.2 [Missing Witness Argument To Jury By Defendant].

RELATED FEDERAL MODEL INSTRUCTIONS:

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