State v. Tahair3/2/2001
eward v. Garlin, 33 Vt. 583, 592-93 (1861) (where "ordinary and natural course" would be to introduce witness's testimony, party's failure to do so leads to "irresistible conclusion . . . that he feared at least the witness would not support his other testimony"); State v. Fitzgerald, 68 Vt. 125, 127, 34 A. 429, 429 (1896) (adverse inference may be drawn from failure to produce witness ); State v. Smith, 71 Vt. 331, 333-34, 45 A. 219, 220 (1899) (same); Choiniere v. Sulikowski, 126 Vt. 274, 279, 229 A.2d 305, 309 (1967) (same).
The classic formulation of the rule was stated by the United States Supreme Court in Graves v. United States, 150 U.S. 118, 121 (1893), as follows: "The rule even in criminal cases is that 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." Although Graves referred to the rule as creating a "presumption," it is generally characterized in more recent case law as authorizing only a permissive inference. See Choiniere, 126 Vt. at 279, 229 A.2d at 309; State v. Francis, 669 S.W.2d 85, 88 (Tenn. 1984). Most courts caution, as well, that " missing-witness instruction is only proper if the inference to be drawn is a 'natural and reasonable one.'" Trombly, 148 Vt. at 304, 532 A.2d at 970 (quoting United States v. Bramble, 680 F.2d 590, 592 (9th Cir. 1982)); see also Burgess v. United States, 440 F.2d 226, 237 (D.C. Cir. 1970) (missing witness instruction proper only when it can be said "with reasonable assurance that it would have been natural for a party to have called the absent witness but for some apprehension about his testimony"); Wheatley v. State, 465 A.2d 1110, 1111 (Del. 1983) ("A missing witness inference is permissible only where it would be 'natural' for the party to produce the witness if his testimony would be favorable.").
The last several decades have witnessed a growing wariness among courts about the wisdom of the missing witness rule, however, and a number of courts have rejected it outright. See State v. Malave, 737 A.2d 442, 447 (Conn. 1999) (concluding that "the rule should be abandoned in criminal cases"); State v. Brewer, 505 A.2d 774, 777 (Me. 1985) (holding 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"); State v. Caron, 218 N.W.2d 197, 200 (Minn. 1974) (forbidding comment upon defendant's failure to call witnesses); Henderson v. State, 367 So. 2d 1366, 1368 (Miss. 1979) (holding that "an instruction on either party's failure to call a witness in criminal cases should not be given" ); State v. Jefferson, 353 A.2d 190, 199 (R.I. 1976) (any comment upon defendant's failure to produce witnesses "was improper"), abrogated on other grounds by State v. Caruolo, 524 A.2d 575, 581 (R.I. 1987); State v. Hammond, 242 S.E.2d 411, 416 (S.C. 1978) (observing that "such a charge has no proper place in the judge's statement of the law"); Russell v. Commonwealth, 223 S.E.2d 877, 879 (Va. 1976) (concluding that " e do not believe a missing-witness presumption instruction has any place in a criminal case"); see also Dent v. United States, 404 A.2d 165, 170 (D.C. 1979) (allowing instruction, but noting that " courts have recognized several dangers inherent in allowing the jury to draw an inference adverse to a party from the absence of evidence"); Taylor v. State, 676 N.E.2d 1044, 1046 (Ind. 1997) (observing that " he tendered instruction, commonly referred to as a missing witness instruction, is not generally fa
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