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State v. Tahair3/2/2001
vored in Indiana"); Crosser v. Iowa Dept. of Pub. Safety, 240 N.W.2d 682, 685 (Iowa 1976) (noting that "the inference should be invoked prudently" and with caution); Davis v. State, 633 A.2d 867, 879 (Md. 1993) (trial court "should be especially cautious" in giving missing witness instruction); Commonwealth v. Schatvet, 499 N.E.2d 1208, 1211 (Mass. App. Ct. 1986) (holding that, " ecause the inference, when it is made, can have a seriously adverse effect on the noncalling party . . . it should be invited only in clear cases, and with caution"); Francis, 669 S.W.2d at 89 (noting that "several dangers inherent in the operation of the missing witness rule" require that it be strictly construed and used with caution).
Courts and commentators have identified several reasons for restricting or even rejecting the rule. First, to the extent that the rule derived from the venerable common law practice of "vouching," which prohibited parties from impeaching their own witnesses, its rationale has been undermined by the abandonment of the voucher rule in this and most other states. See V.R.E. 607 ("The credibility of a witness may be attacked by any party, including the party calling him."). As the court explained in Brewer, " ince neither party vouches for any witness's credibility, the failure of a party to call a witness cannot be treated as an evidentiary fact that permits any inference as to the content of the testimony of that witness." 505 A.2d at 776-77; see also Malave, 737 A.2d at 448-49 (noting that logical basis for missing witness instruction has been undermined by abandonment of voucher rule).
Many have also noted that the availability of modern discovery procedures has undermined "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." Brewer, 505 A.2d at 777; see also Malave, 737 A.2d at 447 ("the need for the missing witness instruction has been obviated, to a significant degree, by the advent of modern discovery procedures, which have made it easier for both the state and the defendant to ascertain the substance of the testimony of prospective witnesses"); 2 J. Strong, McCormick on Evidence § 264, at 176-77 (5th ed. 1999) (" he availability of modern discovery and other disclosure procedures serves to diminish both its justification and the need for the inference."). Where courts once "used the missing witness doctrine to compel parties to produce witnesses at trial," C. Edwards, Speak of the Missing Witness, and Surely He Shall Appear: The Missing Witness Doctrine and the Constitutional Rights of Criminal Defendants, 67 Wash. L. Rev. 691, 698 (1992), today our rules provide ample opportunity to identify the witnesses a party intends to call at trial, as well as the substance of their testimony. See V.R.Cr.P. 15-17.1.
Apart from its diminished utility as a discovery tool, the missing witness rule has also been sharply criticized for its "potential inaccuracy and unfairness." R. Stier, Revisiting the Missing Witness Inference-Quieting the Loud Voice From the Empty Chair, 44 Md. L. Rev. 137, 151 (1985). As noted, the basis of rule is that, where a party fails to call an available witness whose testimony would be expected to be favorable, a "natural" inference arises that the witness would have given testimony unfavorable to that party. See Burgess, 440 F.2d at 237. Critics have noted, however, that "the decision not to call the witness may be based upon many facts besides the party's fear that weaknesses in the case will be exposed if testimony is heard." Stier, supra, at 145; see also Malave, 737 A.2d at 449 ("there are many reasons why a party may choose to refrain from ca
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