IS THE MISSING WITNESS INFERENCE NOW MIA IN CRIMINAL CASES? (1 of 2)

The twin pillars of the American justice system are the accused’s right to the presumption of innocence and the government’s responsibility to prove its case beyond a reasonable doubt. Efforts to encroach upon either of these organic principles have been met with serious judicial scrutiny.

Over forty-five years ago, New Jersey’s Supreme Court decided the case of State v. Clawans, which held that in both criminal and civil cases, a “failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issues, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him.” This inference which is sometimes called the “missing witness inference” is premised on a recognition that a party will ordinarily call a witness to aid in developing important facts in the party’s case. If it is determined that a missing witness inference is applicable, this evidential aid can be brought to the jury’s attention by a specific instruction from the trial court and/or during the adversary’s summation. Clearly, when the court provides the jury with in instruction that will allow it to draw an adverse inference from a party’s failure to call a certain witness, the result can be devastating.

Fortunately, this begulingly simple rule has been tempered by a well-found understanding that there may be a whole constellation of reasons that can cause a litigant not to call a witness, apart from the fear of counter-productive testimony. Resultantly, trial courts are required to exercise caution in authorizing the inference especially in criminal cases where the level of concern is piqued because of the constitutional safeguards recited above. Thus, when requested to rule on an adverse inference charge a trial court will usually focus on the nature of the anticipated testimony of the missing witness and other special circumstances. Resultantly, an adverse inference should not be allowed if the missing witness’s expected testimony relates to peripherical issue, is merely cumulative or inferior to other evidence presented at the trial. Similarly, if the missing witness is unavailable, is expected to assert a testimonial privilege or maintains a bias or a prejudice against the party expected to call the witness, the inference should not apply.

In order to secure a fair analysis of these extremely fact-sensitive issues, the proponent of the missing witness inference is required to advise the court at the end of opponent’s case of the anticipated request, so as to give the adversary an opportunity to produce the witness or explain why the witness was not produced. Despite the salutary purpose of this important procedural rule, violations of the rule have not been met with a great deal of judicial concern where a missing witness inference is presented to a jury by the government during closing arguments in a criminal case.

Over the years, a number of jurisdictions have concluded that the missing witness inference has lost its usefulness in criminal trials for a variety of reasons, including the complexity of the issue, the potential for abuse or gamesmanship, the broad available of information under existing rules of discovery and above all the fear that the inference will encroach upon the defendant’s constitutional rights.

The analysis of the missing witness inference becomes especially troublesome in those cases where an accused refuses to call a witness because of an intention to rely upon the presumption of innocence standard. A couple of years ago, an appellate panel in State v. Velasquez, severely restricted the government’s use of the missing witness inference when it held that the inference could not be used either in a jury charge or during the government’s closing arguments, where it was reasonable to infer that an accused was relying upon the presumption of innocence in making the decision not to call a witness.