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State v. Tahair3/2/2001
lling a witness that have little or nothing to do with the substance of the witness' testimony"); Edwards, supra, at 706 ("Simply as a matter of legitimate trial tactics, criminal defendants may choose not to call witnesses for many reasons unrelated to guilt or innocence.").
As the court in United States v. Busic, 587 F.2d 577, 586 (3d Cir. 1978), overruled on other grounds by Busic v. United States, 446 U.S. 398 (1980), recognizing the "weakness of the missing witness inference," observed:
Every experienced trial lawyer knows that the decision to call a witness often turns on factors which have little to do with the actual content of his testimony. Considerations of cumulation and jury fatigue may preclude calling a witness who is entirely helpful; calculations that a witness may help a lot but hurt a little may compel restraint when counsel believes that his burden is already met. Then, too, questions of demeanor and credibility, hostility, and the like may influence the [party] not to produce a witness whose testimony might be entirely harmful to the [other party].
Thus, while a negative inference from the failure to call a witness might seem "natural" to a jury, there may-in reality-be many reasons for the decision unrelated to the content of the testimony. Accordingly, the Connecticut Supreme Court recently concluded that any inference to be drawn from the failure to call a witness is so fraught with "conjecture" and "ambiguity" that the instruction is unsupportable. Malave, 737 A.2d at 450.
Of course, a jury might "naturally" infer that the absent witness's testimony would have been unfavorable even without an instruction from the court. There is a difference, however, between what the jury might infer on its own, and what it might conclude "when the absence of certain evidence is highlighted by . . . the judge's instructions." J. McDonald, Drawing an Inference from the Failure to Produce a Knowledgeable Witness: Evidentiary and Constitutional Considerations, 61 Cal. L. Rev. 1422, 1430 (1973). Thus, many courts have noted the danger that the missing witness instruction, "which in effect creates evidence from nonevidence, may add a fictitious weight to one side of the case . . . by giving the missing witness undeserved significance." Dent, 404 A.2d at 171; see also Davis, 633 A.2d at 879 (trial court's missing witness instruction, in contrast to prosecutor's reference to missing witness in closing argument, "creat the danger that the jury may give the inference undue weight"); Francis, 669 S.W.2d at 89 (same); Henderson, 367 So. 2d at 1368 (rejecting missing witness instruction on ground that it "place too much emphasis on such permissible inference and tend to cause juries to decide cases on the lack of testimony rather than direct testimony").
Finally, many courts and commentators have noted that the instruction raises constitutional concerns by implying that the defendant has some obligation to produce evidence, thus diminishing the State's burden of proving the defendant's guilt beyond a reasonable doubt. See Brewer, 505 A.2d at 777 ("The inference may have the effect of requiring the defendant to produce evidence to rebut the inference."); Caron, 218 N.W.2d at 200 (such comment "might suggest to the jury that defendant has some duty to produce witnesses or that he bears some burden of proof"); Jefferson, 353 A.2d at 199 (same); Russell, 223 S.E.2d at 879 (instruction could "weaken, if not neutralize, the presumption of innocence"). Although we do not hold that the instruction necessarily shifts the burden of proof to the defendant, see People v. Rodriguez, 341 N.E.2d 231, 233 (N.Y. 1975) ("respected authorities make clear that, so long as com
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