SERIES 300 EVIDENCE
F 301 NOTES
TABLE OF CONTENTS
F 301 Note 1 Missing Witness Instruction For Informant: Necessity Of Prior Request For Disclosure
F 301 Note 2 When Neither Party Calls Missing Witness Who Is Equally Available
F 301 Note 3 Applicability Of Missing Witness Instruction To Police Officer Not Called By Prosecution
F 301 Note 4 Applicability Of Missing Witness Instruction When Prosecution Fails To Call Victim
F 301 Note 5 Less Satisfactory Evidence Instruction As Improper Comment On Defendant’s Failure To Testify
F 301 Note 6 Strategies For Resisting Missing Witness Instruction Or Argument Against Defendant
F 301 Note 7 Circumstances Which May Defeat The Missing Witness Inference
F 301 Note 8 No Missing Witness Inference If Witness Would Be Hostile
F 301 Note 9 Use Of Missing Witness Inference Against Defendant Who Has Burden To Prove Affirmative Defense
F 301 Note 10 Missing Witness Inference Must Be Proven Beyond A Reasonable Doubt Before Being Applied To Defendant
F 301 Note 11 Missing Witness Inference As Violation Of Confrontation
F 301 Note 12 Objection To Missing Witness/Missing Evidence Instruction Based On Time Limits Or Other Restrictions Placed On The Defense
F 301 Note 13 Missing Witness/Missing Evidence Instruction Should Not Be Given In Close Case
F 301 Note 14 Missing Witness Argument To Jury: Prior Approval Of Court Required
F 301 Note 15 Missing Witness Argument To Jury By Defendant
F 301 Note 16 Missing Witness: Same Concerns Apply To Argument As To Jury Instructions
F 301 Note 17 Testimony Of Single Witness: When Corroboration Required
F 301 Note 18 Corroboration Of Dog Tracking Evidence
F 301 Note 19 Single Witness: Insufficient To Sustain Perjury Charge
F 301 Note 20 Corroboration: Defendant’s Statements May Be Used As To Degree
F 301 Note 21 Sex Crimes: No CorroborationC No Error To Give CJ 10.60 (Now CC 1190) or CJ 2.27 (Now CC 301) (“Single Witness” Instruction)
Return to Series 300 Table of Contents.
F 301 Note 1 Missing Witness Instruction For Informant: Necessity Of Prior Request For Disclosure
United States v. Perez (1st Cir. 2002) 299 F3d 1 held that a missing witness instruction is inappropriate in a case in which the witness who was not called is a confidential informer and the defendant did not seek disclosure of the informer’s identity.
F 301 Note 2 When Neither Party Calls Missing Witness Who Is Equally Available
When a witness is equally available to both parties and neither party calls the witness, the jury may draw such inferences as it chooses: that the testimony would have been unfavorable to either party, to neither party, or to both. (U.S. v. Ploof (2d Cir. 1972) 464 F2d 116, 119; see also U.S. v. Nichols (2nd Cir. 1990) 912 F2d 598, 601 [if witness is equally available to both parties, instruction may permit unfavorable inference against either party].)
But, when a witness is unavailable to both parties, no inferences, favorable or unfavorable, may be drawn from a party’s failure to call the witness, absent a showing that he was under the control of either party or that his absence resulted from conduct of either party. (U.S. v. Secondino (2d Cir. 1965) 347 F2d 725, 726.) However, “where there is a likelihood of bias on the part of the person not called as a witness in favor of one party, ‘that person is not, in a true sense, “equally available” to both parties.'” (Yumich v. Cotter (7th Cir. 1971) 452 F2d 59, 64.)
F 301 Note 3 Applicability Of Missing Witness Instruction To Police Officer Not Called By Prosecution
See, e.g., Commonwealth v. DeCastro (MA 1987) 509 NE2d 25, 27 [defendant’s invitation to jury to draw inferences adverse to prosecution from its failure to call certain police witnesses justified missing witness instruction in prosecution for distribution of and trafficking in cocaine]; see also People v. Cruz (NY 1983) 469 NYS2d 138, 140 [where prosecution did not call police officer and, until time of summation, did not offer explanation for its failure to do so, and defense counsel requested court to deliver missing witness charge, defendant was entitled to charge that failure of party to call witness under his control who is shown to be in position to give material evidence gives rise to inference that testimony would have been unfavorable].
F 301 Note 4Applicability Of Missing Witness Instruction When Prosecution Fails To Call Victim
See People v. Jackson (NY 1986) 504 NYS2d 953 [defendant was entitled to instruction that jury may draw unfavorable inference from state’s failure to call victim as witness, though witness was out of state, where victim had previously testified for prosecution and prosecution knew victim’s whereabouts but did not demonstrate attempt to contact her or obtain her presence at trial].
F 301 Note 5 Less Satisfactory Evidence Instruction As Improper Comment On Defendant’s Failure To Testify
“The less satisfactory evidence instruction is probably as much a comment on the evidence as some other instructions that have since been discredited. [Citations.] When the defendant does not testify or present any evidence, this instruction may improperly comment on the defendant’s privilege not to testify or to present any evidence. Also, it may improperly tend to shift the burden of proof to the defendant. Therefore, when a defendant did not testify and objected to the court giving the less satisfactory instruction, it was reversible error to give it. [Citations.]” (Uniform Criminal Jury Instructions (Oregon), UCrJI 1025 [Less Satisfactory Evidence (State’s Burden Of Proof)] Appendix, Part B, Oregon State Bar, 1998.)
F 301 Note 6Strategies For Resisting Missing Witness Instruction Or Argument Against Defendant
RESEARCH NOTES:
See generally, FORECITE F 301 Inst 10 [Missing Witness Instruction Should Not Be Used Against Defendant].
See also generally, FORECITE F 301 Inst 11 [No Missing Witness Inference As To Defendant Who Fails To Testify].
See also generally, FORECITE F 301 Inst 12 [“Reverse Missing Witness” Instruction Where Defendant Has No Obligation To Call Specific Witness].
See also generally, FORECITE F 301 Note 10 [Missing Witness Inference Must Be Proven Beyond A Reasonable Doubt Before Being Applied To Defendant].
F 301 Note 7 Circumstances Which May Defeat The Missing Witness Inference
Certain characteristics of the witness or of his relationship with the party against whom the inference is sought may make him actually or effectively unavailable and/or may undermine the validity of the inference that his testimony would be unfavorable. Inferences have been found inappropriate where the witness was:
Not amenable to subpoena. (Wynn v. U.S. (DC Cir. 1967) 397 F2d 621.)
Unable to testify. (Conboy v. State (TN 1970) 455 SW2d 605 [witness under care of physician and unable to attend court].)
In an unknown location. (U.S. v. Wilson (DC Cir. 1976) 534 F2d 375.)
Not shown to be competent. (State v. Francis (TN 1984) 669 SW2d 85.)
Not located by a good faith but unsuccessful effort by the nonproducing party, even if belated. (Nowlin v. U.S. (DC App. 1978) 382 A2d 9 [government effort to find witness the day before trial found sufficient even though government had known of witness prior to time of grand jury]; compare Harris v. U.S. (DC App. 1981) 430 A2d 536 [defendant’s efforts to locate missing witness, a minister, found insufficient].)
Hostile in fact, despite the relationship. (State v. DePaola (NJ 1950) 73 A2d 564, 574 [since the evidence showed great hostility of wife toward her husband, state may not comment on his failure to call her].)
Privileged. (Bowles v. U.S. (DC Cir. 1970) 439 F2d 536 [where defense was that another person committed crime, court’s refusal to allow defendant to call that person to stand, when it ascertained he would assert his 5th Amendment privilege was proper, as was court’s denial to defendant of missing witness instruction and its admonition not to mention the witness’s absence in closing; however, if requested, it would have been error for court to refuse to give instruction that no inference could be drawn from the witness’s absence since he was not available to either side]; James v. State (GA 1967) 157 SE2d 471, 476; Christensen v. State (MD 1975) 333 A2d 45, 46 [absence of accomplice does not give rise to adverse inference because the accomplice would presumably assert his 5th Amendment privilege]; Commonwealth v. Niziolek (MA 1980) 404 NE2d 643, 646 [since verdict and sentencing were complete and unconditional in co-defendant’s case, there was no impediment to his availability]; State v. Moore (MO 1981) 620 SW2d 370, 373 [no support in the record for defendant’s contention that co-defendants refused to testify at defendant’s trial by asserting a 5th Amendment privilege].)
Covered by a privilege that could be asserted by defendant. (U.S. v. Burkhart (6th Cir. 1974) 501 F2d 993, 995 [defendant waived the marital privilege as to his wife’s testimony by introducing her statements during cross-examination of government witnesses].)
Identified by the defendant as the perpetrator of the crime. (Pennewell v. U.S. (DC Cir. 1965) 353 F2d 870, 871.)
F 301 Note 8No Missing Witness Inference If Witness Would Be Hostile
See Tennessee Pattern Instructions—Criminal, T.P.I.-Crim 42.16(b) [Alternative Instruction: Absent Material Witness] (West, 5th ed. 2000)) comment [inference does not arise and instruction should not be given if, inter alia, the “witness would be prejudiced against or hostile to the party who has not called him or her” ].
F 301 Note 9Use Of Missing Witness Inference Against Defendant Who Has Burden To Prove Affirmative Defense
The rationale for precluding a missing witness or missing evidence instruction against the defendant may not be applicable when the defendant has the affirmative burden of proof as to a defense. (See State v. Mains (OR 1983) 669 P2d 1112, 1117; see also Uniform Criminal Jury Instructions (Oregon), UCrJI 1026 [Less Satisfactory Evidence (Defendant’s Burden of Proof] (Oregon State Bar, 1998).)
F 301 Note 10Missing Witness Inference Must Be Proven Beyond A Reasonable Doubt Before Being Applied To Defendant
Another approach to the missing witness problem is to permit the inference to be drawn against the defendant but only if the truth of the inference has been proven beyond a reasonable doubt. (See e.g., Commonwealth v. Johnson (MA 1995) 656 NE2d 929, 931.)
F 301 Note 11 Missing Witness Inference As Violation Of Confrontation
The missing witness instruction, if given when a witness is not peculiarly within the control of the defendant, unfairly permits the jury to infer that the witness’s testimony would be unfavorable to the defendant, without affording the defendant an opportunity to interrogate the witness in the presence of the jury. Thus the requirement, that the witness be peculiarly within the control of the party, must be strictly followed. (See e.g., Hayes v. State (MD 1984) 470 A2d 1301, 1306-07.)
F 301 Note 12 Objection To Missing Witness/Missing Evidence Instruction Based On Time Limits Or Other Restrictions Placed On The Defense
If time limits or restrictions have been placed upon the defendant in terms of trial preparation, this may be a basis for objecting to an instruction regarding the failure to present all evidence and/or for a supplementary instruction explaining that the defense was precluded from presenting all witnesses as a result of time restrictions, limited funds, etc.
F 301 Note 13 Missing Witness/Missing Evidence Instruction Should Not Be Given In Close Case
In a close case, it may be appropriate to relegate the missing witness rule to argument because the jury is more likely to give undue weight to the inference if communicated by the judge than by counsel. (See Davis v. State (MD 1993) 633 A2d 867, 879-80.) Assuming that one party is entitled to a missing witness instruction, the court’s failure to grant it does not take away the negative inference that arises against the opposing party. It merely relegates the missing witness inference to the catch-all group of unspecified inferences, as opposed to highlighting this particular inference. (See Yuen v. State (MD 1979) 403 A2d 819, 823.)
F 301 Note 14 Missing Witness Argument To Jury: Prior Approval Of Court Required
Because a missing witness argument “creates evidence from the absence of evidence,” it may only be made with the court’s permission. (Burgess v. U.S. (DC Cir. 1970) 440 F2d 226, 234; U.S. v. Beeler (6th Cir. 1978) 587 F2d 340, 343; U.S. v. Blakemore (6th Cir. 1973) 489 F2d 193, 196; U.S. v. Valles (7th Cir. 1994) 41 F3d 355, 360; U.S. v. Rollins (7th Cir. 1988) 862 F2d 1282, 1297-99; State v. Clark (CT 1998) 713 A2d 834, 845; Harris v. U.S. (DC App. 1992) 602 A2d 154, 161-62; Chappell v. U.S. (DC App. 1987) 519 A2d 1257, 1259; McGrier v. U.S. (DC 1991) 597 A2d 36, 47.)
Hence, “where counsel for either the state or the defendant intends to argue to the jury that an unfavorable inference be drawn from the absence of a witness at trial, an advance ruling from the trial court should be sought and obtained. At that time, the trial court should determine whether the defendant’s 5th Amendment right not to testify would be violated by the proposed argument and whether there is sufficient evidence for the jury to find that the absent witness is (1) available to the party against whom the inference is sought to operate and (2) one whom that party would naturally be expected to produce.” (State v. Daniels (CT 1980) 429 A2d 813, 819; see also State v. Canty (CT 1992) 613 A2d 1287, 1296; Ohio Jury Instructions, Volume 4—Criminal, 4 OJI 405.10 [Exclusion Not Evidence] & 5 (Anderson, 2000) (citing Silveous v. Rensch (OH 1969) 353 NE2d 758, 759) [Missing Witness: No Instruction Recommended].)
See also FORECITE F 301 Note 16 [Missing Witness: Same Concerns Apply To Argument As To Jury Instructions].
F 301 Note 15 Missing Witness Argument To Jury By Defendant
The defense should be “allowed to argue that the government’s failure to produce relevant evidence within its control gives rise to an inference that the evidence would be unfavorable to it. [Citations].” (U.S. v. Tory (9th Cir. 1995) 52 F3d 207, 211; see also U.S. v. Sblendorio (7th Cir. 1987) 830 F2d 1382, 1390-94.)
F 301 Note 16 Missing Witness: Same Concerns Apply To Argument As To Jury Instructions
“The [missing witness] is essentially a comment on the evidence; the inference itself is the natural inference that a party’s failure to call a witness in certain circumstances suggests that he was afraid to do so which in turn suggests that the testimony would have been unfavorable ….” (See Pennsylvania Suggested Standard Criminal Jury Instructions, Pa. SSJI (crim) 3.21A [Failure To Call Potential Witness] (Pennsylvania Bar Institute, PBI Press, 08/85); see also Downey v. Weston (PA 1973) 301 A2d 635, 640.)
While it has been observed that the court may, in its discretion, leave the missing witness inference entirely to counsel to argue to the jury (Pennsylvania Suggested Standard Criminal Jury Instructions, Pa. SSJI (crim) 3.21A [Failure To Call Potential Witness] (Pennsylvania Bar Institute, PBI Press, 08/85)), it has also been recognized that the defendant is entitled to a missing witness instruction, on request, in situations where the jury may properly draw an inference adverse to the prosecution. (Ibid.)
However, regardless of whether the instruction is given, the court may have to instruct the jury to disregard counsel’s missing witness arguments if they are improper. (See e.g., Commonwealth v. Newmiller (PA 1979) 409 A2d 834, 839 [where no evidence that witness was peculiarly within reach of either party, missing witness argument was improper]; see also Pennsylvania Suggested Standard Criminal Jury Instructions, Pa. SSJI (crim) 3.21A [Failure To Call Potential Witness] (Pennsylvania Bar Institute, PBI Press, 08/85).)
The basis for allowing either argumentative comment or a request for a missing witness instruction “is the simple proposition that if a party has evidence which will illuminate questions in issue and fails to present it, it may be inferred that such evidence would be harmful to his case.” (United States v. Johnson (1st Cir. 1972) 467 F2d 804, 808; accord Graves v. United States (1893)150 US 118, 121 [14 SCt 40; 37 LEd 1021] [“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” ]; Steinhilber v. McCarthy (D.Mass. 1998) 26 FSupp2d 265 [same].)
See also FORECITE F 301 Note 14 [Missing Witness Argument To Jury: Prior Approval Of Court Required].
See also FORECITE F 301 Note 15 [Missing Witness Argument To Jury By Defendant].
F 301 Note 17 Testimony Of Single Witness: When Corroboration Required
In People v. Noguera (1992) 4 C4th 599, 630-32, the court found no prejudicial error in failing to modify CJ 2.27 to specifically require corroboration of the accomplice. The court reached this result because the jury received the full panoply of accomplice instructions and both counsel proceeded throughout the trial on the assumption that the accomplice’s testimony required corroboration. Note, however, that no request for modification of CJ 2.27 was made in Noguera. Certainly, if such a request is made it must be granted under the authority of People v. Chavez (1985) 39 C3d 823, 830-331 and Noguera does not hold to the contrary.
CALJIC NOTE: See FORECITE F 2.27 n1.
F 301 Note 18 Corroboration Of Dog Tracking Evidence
Corroboration is required when the defendant has been identified by dog tracking evidence. (People v. Gonzales (1990) 218 CA3d 403, 407-14.)
CALJIC NOTE: See FORECITE F 2.27 n2.
F 301 Note 19 Single Witness: Insufficient To Sustain Perjury Charge
A person may not be convicted of perjury under PC 118 when the only proof of falsity of the statement is the testimony of one witness which contradicts the defendant’s statement. (See CJ 7.23; PC 118(b); see also People v. Alcocer (1991) 230 CA3d 406; Weiler v. U.S. (1945) 323 US 606 [89 LEd 495; 65 SCt 548] [prejudicial error to fail to give an instruction virtually identical to CJ 7.23].)
Accordingly, CC 301 should not be given in a perjury case.
CALJIC NOTE: See FORECITE F 2.27 n4.
F 301 Note 20 Corroboration: Defendant’s Statements May Be Used As To Degree
Once criminal agency has been established by prima facie evidence that a murder was committed, permitting a defendant’s own statements to establish the degree of the crime does not violate due process, fair trial or the 8th Amendment. (People v. Weaver (2001) 26 C4th 876.)
CALJIC NOTE: See FORECITE F 2.27 n5.
F 301 Note 21 Sex Crimes: No Corroboration—No Error To Give CJ 10.60 (Now CC 1190) or CJ 2.27 (Now CC 301) (“Single Witness” Instruction)
It is not improper to give the “no-corroboration” instruction (CJ 10.60, now CC 1190) and the “single-witness” instruction (CJ 2.27, now CC 301) in sex cases. (People v. Gammage (1992) 2 C4th 693, 700-02.)
However, Gammage did not consider the question of whether CJ 10.60 (now CC 1190) and CJ 2.27 (now CC 301) are misleading when the instructions are given in unison. (In Gammage, the majority’s rational was that the jurors will not construe CJ 10.60 as affecting their credibility determination when the instruction is removed from instructions on the evaluation of witness credibility. (See Gammage 2 C4th at 700-01.) Thus, the instructions should not be given in unison.
Research Notes: See Annotation, Modern status of rule regarding necessity for corroboration of victim’s testimony in prosecution for sexual offense, 31 ALR4th 120 and Later Case Service.
CALJIC NOTE: See FORECITE F 10.60 n1.