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STATE v. BREWER10/31/1985
See M.R.Evid. 607 Advisers' Note, reprinted in R. Field & P. Murray, supra, at 136; State v. Price, 202 Neb. 308, 275 N.W.2d 82, 90 (1979) (the identical Nebraska Rule 607 represents a repudiation "of the ancient and universally criticized rule that a party `vouches' for the credibility of his own witnesses and may not impeach them"). Since neither party vouches for any witness's credibility, the failure of a party to call a witness cannot
Also, the availability of modern discovery procedures sharply undercuts whatever utility the inference might once have possessed in compelling a reluctant party to identify witnesses who might be expected to testify to relevant evidence. If a party violates his discovery obligation, the trial court has available to it a variety of sanctions.
To allow the missing-witness inference in a criminal case is particularly inappropriate since it distorts the allocation of the burden of proving the defendant's guilt. The defendant is not obligated to present evidence on his own behalf. The inference may have the effect of requiring the defendant to produce evidence to rebut the inference. If he fails to do so, the missing-witness inference allows the state to create "evidence" from the defendant's failure to produce evidence. Such a result is impermissible. State v. Rule, 355 N.W.2d 496 (Minn. App. 1984); State v. Caron, 300 Minn. 123, 218 N.W.2d 197, 200 (1974); State v. Jefferson, 116 R.I. 124, 353 A.2d 190, 199 (1976); State v. Taylor, ___ R.I. ___, 425 A.2d 1231, 1234-36 (1981); State v. Posey, 269 S.C. 500, 238 S.E.2d 176 (1977). Accord Whitman, 429 A.2d at 209 (Roberts, J., concurring, joined by Godfrey, J.). See also State v. Cavness, 46 Haw. 470, 381 P.2d 685, 686-87 (1963) (inference improper, when the missing witness is an accomplice or codefendant); accord Christensen v. State, 274 Md. 133, 333 A.2d 45, 49 (1975); Schrameck v. State, 595 P.2d 799 (Okla.Crim. 1979) (per curiam).
The facts of the instant case amply illustrate the impropriety of the missing-witness inference in a criminal case. The defendant testified that Pratt had been drinking for a couple of hours and then drove the truck. If Pratt had testified to corroborate the defendant's story, Pratt might have subjected himself to criminal liability on charges of operating under the influence of intoxicating liquor, 29 M.R.S.A. § 1312-B (Supp. 1984-1985) and leaving the scene of an accident, id. §§ 893-894 (1978). Thus the defendant's failure to call Pratt might as strongly suggest that Pratt's testimony would have been favorable to the defendant as it would suggest unfavorable testimony, but either inference would be speculative.
We hold, therefore, that in a criminal case the failure of a party to call a witness does not permit the opposing party to argue, or the factfinder to draw, any inference as to whether the witness's testimony would be favorable or unfavorable to either party. We overrule any prior decisions to the extent that they permitted such an inference.
The entry is:
Judgment of the Superior Court vacated. Remanded to the Superior Court for remand to the District Court with instructions to vacate the judgment of conviction and for further proceedings consistent with the opinion herein.
All concurring.
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