IS THE MISSING WITNESS INFERENCE NOW MIA IN CRIMINAL CASES? (2 of 2)

Recently, the Supreme Court in a case titled, State v. Hill, struck a veritable death knell to the missing witness inference in all criminal cases absent some special circumstances. In that case, Hill was convicted of first degree robbery for his role as an accomplice in an armed theft of a bakery located in Newark, where one of the principal actors was Hill’s teenage nephew. In his defense, Hill testified that he knew nothing of the intended robbery or the gun used in the event. Hill did not call his nephew to aid in his “ignorance defense.” Thereafter and at the suggestion of the trial judge, the government requested a missing witness charge. During the ancillary proceeding that followed a transcript of the nephew’s plea colloquy was secured. That transcript disclosed that the nephew testified that Hill knew of the robbery, as well as the intention to use the weapon. Based on this information, the trial court gave Hill the opportunity to call the nephew or face the consequences of a missing witness charge. At that point, Hill’s attorney reiterated testimony produced during the Clawan’s hearing that Hill had not seen the nephew for months and that the nephew who was now living in Alabama was beyond the reach of the court’s process. Notwithstanding, the trial judge provided the jury with a missing witnesses charge, concluding that despite the nephew’s unavailability, Hill had such a special relationship with the witness that the witness was under Hill’s control and since Hill had not produced any evidence to show an effort to produce the witness, the jury instruction was appropriate. An appellate panel affirmed Hill’s conviction concluding that the trial judge’s decision to charge the jury with a missing witness inference was appropriate. The case ultimately found its way to the Supreme Court.

There, the Court began its analysis of the missing witness inference charge given by the trial court by noting that the presumption of innocence and the beyond a reasonable doubt standard of proof were the juggernauts of the criminal justice system. Next, it explored the substantive and procedural nuances of the missing witness inference and paid special attention to the reasoning of the appellate panel in the Velasquez case which seriously limited the use of the missing witness inference in a criminal case, where an accused decides not to call a witness because of a decision to rely on the presumption on innocence. Ultimately, the court declared its answer to this knotty problem by stating that “[w]e now hold that a Clawan’s charge generally should not issue against criminal defendants” and that “ . . .it would by the rare case, if any, that would warrant a Clawan’s charge from the court.”

Notwithstanding, the pointed clarity of the court’s rule, the door was left ajar for two special circumstances. The first related to instances where the expected testimony of the non-appearing witness relates to an alibi defense or some other affirmative defense. Arguably, since, it can also be said that an alibi defense is an affirmative effort to prove innocense, it can be said that a missing witness inference would not offend the presumption of innocence concept. In an unreported appellate case that followed Hill by a few months, however, the court decided that a defendant’s failure to call an alibi witness was not such a “rare case” as to trigger a missing witness charge.

Second, the decision in Hill was limited to the issue of a missing witness jury charge. It did not address the government’s ability to interject the inference into a criminal case during summation. While it may be asserted that the rule laid down in Hill should not affect the government’s ability to argue the issue in summation because a jury charge is much more damaging then the adversary’s comments in summation, it is expected the principle of law developed in Hill will apply with equal force to the government’s summation because historically, the courts have been extremely vigilant in making sure that a government’s lawyer’s closing comment does not dilute an accused presumption of innocence or manipulated the government’s responsibility to prove its case beyond a reasonable doubt. In fact, the issue seems to have been previously resolved against the use of the missing witness inference during closing arguments by the court in Vasquez.