F 301 Single Witness’s Testimony

F 301 Single Witness’s Testimony

TABLE OF CONTENTS
F 301 Inst 1 Single Witness May Leave Jurors With A Reasonable Doubt
F 301 Inst 2 (a-d) Missing Witness: Sample Instructions
F 301 Inst 3 CAVEAT: Use Of Missing Witness Instruction Against Defendant May Be Improper
F 301 Inst 4 “Reverse Missing Witness” Instruction When Witness Is Co-defendant Or Accomplice And Cannot Be Called By Defendant
F 301 Inst 5 Missing Witness Not A Substitute For Proof Of Specific Facts; Any Inference Is Permissive
F 301 Inst 6 (a & b) General Instruction That No Inference Should Be Drawn From Failure To Present Evidence
F 301 Inst 7 Necessity Of Addressing Missing Witness Inference, Even If No Instruction Is Given, To Avoid Negative Inferences
F 301 Inst 8 Missing Witness/Missing Evidence Instruction Where Prosecution Has Failed To Use Due Diligence To Maintain Contact With Witness
F 301 Inst 9 Weaker Or Less Satisfactory Evidence Offered By Prosecution: Consideration Of Power Of State To Gather And Produce Evidence
F 301 Inst 10 Missing Witness Instruction Should Not Be Used Against Defendant
F 301 Inst 11 No Missing Witness Inference As To Defendant Who Fails To Testify
F 301 Inst 12 “Reverse Missing Witness” Instruction Where Defendant Has No Obligation To Call Specific Witness
F 301 Inst 13 (a & b) All Available Evidence: Willful Suppression By Prosecution Or Government Agent
F 301 Inst 14 Single Witness: When Corroboration Required
F 301 Inst 15 Single Witness Testimony: Applicability To Out-Of-Court Declarant

Return to Series 300 Table of Contents.

F 301 Inst 1 Single Witness May Leave Jurors With A Reasonable Doubt

*Add to CC 301, at end of sentence 2:

… or leave you with a reasonable doubt that such fact has been proven. However, it is not necessary for you to [credit] [accept] the testimony of any particular witness or witnesses for you to have a reasonable doubt that any fact has been proven.

Points and Authorities

The defense has no obligation to prove or disprove any facts. (See FORECITE F 100.1 Inst 1.) Without the above modification, CC 301 implies that the defense does have such an obligation.

Identification Of Parties—See FORECITE F 100.2 Note 1.

WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:

FORECITE CG 2.1 [Burden Of Proof: Failure To Adequately Define]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 301 Inst 2 (a-d) Missing Witness: Sample Instructions

Alternative a:

You will remember that _______________ <testifying witness> said that _______________ <name of missing witness> was <e.g., present when the crime is supposed to have been committed>. _______________ <Name of missing witness> was also described as being <e.g., well known to> the (government) (defendant). This may have caused you to wonder why _______________ <name of missing witness> was not called as a witness to answer questions in this trial. If you believe that the testimony of _______________ <name of missing witness> would have been important, and if you also believe that the (government) (defendant) could have brought him to court to testify in this trial, then you may consider (its) (his) failure to do so when you decide whether the government has proved beyond a reasonable doubt that the defendant committed the crime. In other words, you may conclude that the (government) (defense) did not call _______________ <name of missing witness> as a witness because his testimony would have hurt the (government) (defense) case.

[Source: Federal Judicial Center, Pattern Criminal Jury Instruction 39 [Inference From Fact That Witness Not Called] (1988).]

Alternative b:

It was particularly within the power of the (government) (defense) to produce_______________ <name of missing witness>, who could have given material testimony on an issue in the case. The (government’s) (defense’s) failure to call _______________ <name of missing witness> may give rise to an inference that his testimony would be unfavorable to it.

You should bear in mind that the law does not impose on a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.

[Source: United Statesv. Mahone (7th Cir. 1976) 537 F2d 922.]

Alternative c:

If the prosecution has it peculiarly within its power to produce a witness whose testimony would be material on any matter in issue, the fact that the witness is not called to testify creates the presumption that the testimony, if produced, would be unfavorable to the prosecution.

[See “Suggested Form,” Deering’s California Evidence Code §412.]

Alternative d:

_______________ <name of witness> was not called as a witness. If the testimony of _______________ <name of witness> would have been important, and if the prosecution could have brought ____________ <name of witness> to court to testify in this trial, then consider the prosecution’s failure to do so when you decide whether the prosecution has proved the defendant guilty beyond a reasonable doubt. You may infer that the reason the prosecution did not call _____________ <name of witness> as a witness is that [his] [her] testimony would have hurt the prosecution’s case.

[See Hubbard, Jury Instructions for Criminal Cases in South Carolina: Defendants Requested Instructions VIII (B)(6) [Introduction: Trial Presentation] (South Carolina CLE, 1994).]

Points and Authorities

Where evidence is within the control of the party in whose interest it would naturally be to produce it and, without satisfactory explanation the party fails to do so, the jury may draw an inference that it would be unfavorable to the party.

The failure to call a witness who could testify to material facts may give rise to an inference that the testimony of such person would be unfavorable to the party who has not called the witness, if the witness is available to that party, but is not available to the adverse party. (Wharton’s Criminal Evidence (West, 15th, Ed. 1997) (West) §3:21, pp. 232-41, at p. 232.)

“A fairly typical example of the factual predicate required for an instruction that the jury may infer that the testimony of a witness peculiarly within the power of one party to produce would be unfavorable to that party is that of the District of Columbia. It consists of two parts: 1) the evidence or witness must be such that it would have elucidated a matter in issue in the case; 2) the missing evidence or witness must have been peculiarly available to the party who failed to produce the evidence or witness, and availability has been equated to power to produce. [Citations.]” (BNA Criminal Practice Manual (Pike and Fisher Inc. 1999) §131.101[5][c]; see also 7th Circuit Federal Jury Instructions – Criminal 3.24 [Missing Witness] comment (1999).)

Whether to instruct on the “missing witness” inference is largely within the sound discretion of the trial court. (U.S. v. Williams (8th Cir. 1979) 604 F2d 1102, 1120; U.S. v. Johnson (8th Cir. 1977) 562 F2d 515, 517.) Defendant requests for instruction on the missing witness inference have been denied where the witness’s testimony would not have been favorable to the defendant (U.S. v. Long (9th Cir. 1976) 533 F2d 505, 508), where it would have been cumulative or unnecessary (U.S. v. Mahone (7th Cir. 1976) 537 F2d 922, 927), and where it was found that the party was not in full control of the witness (U.S. v. Williams (8th Cir. 1979) 604 F2d 1102, 1119-20; U.S. v. Johnson (8th Cir. 1977) 562 F2d at 517; U.S. v. Wilson (DC Cir. 1976) 534 F2d 375, 377; see also 1st Circuit Pattern Jury Instructions – Criminal 2.12 [Missing Witness] (2002) [detailed comment on missing witness issues].)

The weaker or less satisfactory evidence instruction (see FORECITE F 301 Inst 9 [Weaker Or Less Satisfactory Evidence Offered By Prosecution: Consideration Of Power Of State To Gather And Produce Evidence]) is another form of the missing witness/missing evidence instruction.

Identification Of Parties—See FORECITE F 100.2 Note 1.

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense And Prosecution]
FORECITE CG 6.8 [Prosecution Misconduct: Lost Or Destroyed Evidence]

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

USE NOTE: The inference [from failure to call a material witness] does not arise and this instruction should not be given if the witness is equally available to both sides, if his or her testimony would be inadmissible as evidence, if the absent witness is truly unavailable, if his or her testimony would be immaterial, if the witness is as likely to be favorable to one party as another, or if the witness would be prejudiced against or hostile to the party who has not called him or her. (See Tennessee Pattern InstructionsC Criminal, T.P.I.-Crim 42.16(a) and (b), comment [Alternative Instruction: Absent Material Witness] (West, 5th ed. 2000); see also State v. Francis (TE 1994) 669 SW2d 85, 88.)

CAVEAT: Use of missing witness instructions or argument against the defendant may implicate the federal constitution. (See FORECITE F 301 Inst 10 [Missing Witness Instruction Should Not Be Used Against Defendant]; FORECITE F 301 Inst 11 [No Missing Witness Inference As To Defendant Who Fails To Testify].)

F 301 Inst 3 CAVEAT: Use Of Missing Witness Instruction Against Defendant May Be Improper

See FORECITE F 301 Inst 10 and F 301 Inst 11.

F 301 Inst 4 “Reverse Missing Witness” Instruction When Witness Is Co-defendant Or Accomplice And Cannot Be Called By Defendant

*Add to CC 301:

You must not draw any inference against ____________<name of defendant> from the failure of ____________<name of co-defendant or accomplice> to testify. ____________<name of defendant> does not have the power to compel ____________<co-defendant or accomplice> to testify.

Points and Authorities

If a potential witness is an accomplice or co-defendant the defendant, does not have the power to call him or her. Without a “reverse missing witness” instruction the jury may draw an inference against the defendant from the failure of the witness to testify.

No inference should be drawn regarding the defendant’s failure to call a witness if the person not called by the defendant is a co-defendant or an accomplice. (See e.g., Simpson v. State (MD 1977) 367 A2d 66, 68-69 [error to give “missing witness” instruction in armed robbery prosecution in reference to persons who, although not co-defendants or accomplices in the armed robbery, were implicated by the defense in the crime of selling heroin]; see also Christensen v. State (MD 1975) 333 A2d 45; People v. Panzardi (NY 1995) 624 NYS2d 500, 501; Maryland Criminal Pattern Jury Instructions, MPJI-Cr 3:29 [Missing Witness] (Micpel, 1999), comment.) This is so because the defendant has no control over such a witness’s exercise of the privilege against self-incrimination. (See Robinson v. State (MD 1989) 554 A2d 395, 397-401 [claim of privilege against self-incrimination by witness outside of jury’s presence justified denial of missing witness instruction].)

In such a situation, it may be necessary for the court to give, upon request, a “reverse missing witness instruction” in which the jury is informed that no inference may be drawn against the party who failed to produce the missing witness. (Maryland Criminal Pattern Jury Instructions, MPJI-Cr 3:29 [ ] (Micpel, 1999), comment; Garrison v. State (MD 1991) 594 A2d 1264, 1269; see also Christensen v. State (MD 1975) 333 A2d 45, 49 [failure to grant defendant’s requested instruction that defense has no duty to call missing accomplice and no inference could be drawn from failure to do so was prejudicial error]; U.S. v. Pitts (DC Cir. 1990) 918 F2d 197, 200 [instruction on failure of defense to present a witness is improper when the witness could only have assisted the defendant by waiving his own 5th Amendment privilege against self-incrimination]; State v. Dicks (TN 1981) 615 SW2d 126, 129.) This is so because “no inference can fairly be drawn against a defendant from his failure to call a witness to the stand to incriminate himself.” (U.S. v. Glen (DC Cir. 1995) 64 F3d 706, 709-10; State v. Crews (NJ 1986) 505 A2d 198, 201 [when witness invokes 5th Amendment privilege and refuses to testify, the witness is unavailable to both parties and no adverse inference can fairly be drawn from the absence of the witness].)

Identification Of Parties—See FORECITE F 100.2 Note 1.

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense And Prosecution]
FORECITE CG 6.8 [Prosecution Misconduct: Lost Or Destroyed Evidence]

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

PRACTICE NOTE: The court may exclude a witness called by the defense if that witness is being called solely for the purpose of having that witness invoke his 5th Amendment privilege against self-incrimination in the presence of the jury. (State v. Kirk (OH 1995) 651 NE2d 981, 983.)

>RESEARCH NOTE: Annotation, Adverse Presumption Or Inference Based On Failure To Produce Or Examine Co-defendant Or Accomplice Who Is Not On Trial — Modern Criminal Cases, 76 ALR4th 812.

F 301 Inst 5 Missing Witness Not A Substitute For Proof Of Specific Facts; Any Inference Is Permissive

Sample Instruction:

The inference that a potential witness’s testimony would have been unfavorable to a party who failed to call him is an inference that you may draw, it is not an inference that you are required to draw. Note that the inference is merely that the testimony of the potential witness would have been unfavorable, not that he would have given particular testimony. The inference is not a substitute for proof of specific facts.

[Source: Pennsylvania Suggested Standard Criminal Jury Instructions, Pa. SSJI (crim) 3.21A [Failure To Call Potential Witness] (Pennsylvania Bar Institute, PBI Press, 1985).]

Points and Authorities

The missing witness inference effectively creates evidence from nonevidence. Therefore, it is crucial for the jury to understand that such an inference, even if applicable to the defendant, may not substitute for the prosecution’s obligation to present proof beyond a reasonable doubt of the specific facts necessary to convict.

The missing witness inference “creates evidence from nonevidence.” (Lawson v. U.S. (DC App. 1986) 514 A2d 787, 790; Thomas v. U.S. (DC App. 1982) 447 A2d 52, 58.)

Hence, it may be argued that the inference should not be relied upon in whole or part to satisfy the prosecution’s burden of proof. (See FORECITE F 301 Inst 6 [General Instruction That No Inference Should Be Drawn From Failure To Present Evidence].)

However, if the inference is made applicable to the defendant the instructions should caution the jury that it is not a substitute for the specific evidence necessary to meet the prosecution’s burden.

Identification Of Parties—See FORECITE F 100.2 Note 1.

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 301 Inst 6 (a & b)General Instruction That No Inference Should Be Drawn From Failure To Present Evidence

Alternative a:

Either side may choose not to introduce specific evidence during the trial. Do not draw any inference, favorable or unfavorable to either party, from this. You must attempt to come to a verdict based only upon the evidence presented during the trial.

[Cf. Alexander, Maine Jury Instructions Manual 6-11 [Instruction 22-Missing Witnesses: No Reference] (Lexis, 1999).]

Alternative b:

You must draw no inference—favorable or unfavorable—[from a party’s failure to call any particular person to testify] [from the fact that there is no evidence of _________ in the materials submitted to you.] Do not speculate about what others might have said or what other materials might show.

[See Alexander, Maine Jury Instructions Manual 8-4 [Instruction: Request For Material Not Before Jury] (Lexis, 1999).]

Points and Authorities

Even if no specific missing witness or missing evidence instruction will be given, there is a danger that the jury will draw adverse inferences from the failure to introduce specific evidence. (See e.g., Alexander, Maine Jury Instructions Manual 6-11 [Instruction 22-Missing Witnesses: No Reference]; 8-4 [Instruction: Request For Material Not Before Jury] (Lexis, 1999).)

Identification Of Parties—See FORECITE F 100.2 Note 1.

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 301 Inst 7Necessity Of Addressing Missing Witness Inference, Even If No Instruction Is Given, To Avoid Negative Inferences

*Add to CC 301:

Both sides have now rested their cases. Even though you may still have questions that remain unanswered, you must now attempt to reach a decision. It is your duty to weigh the evidence that has been presented, including all the testimony from witnesses and all the exhibits that have been introduced.

In addition, if a party could have called a witness, and yet that witness was not called, you may infer that the party believed that the witness would not be helpful to its case. Common sense will often suggest many reasons why the absent witness might not help a party’s case.

[The court might then instruct the jury that certain specific witnesses could not have appeared, for example, because they are deemed incompetent to testify or because they could not be found when subpoenaed. In this way, the court would, in effect, be ruling that for those witnesses the inference is not allowed.]

[See Robert Stier, Revisiting the Missing Witness Inference—Quieting the Loud Voice from the Empty Chair (1985) 44 Md.L.Rev. 137, 169.]

Points and Authorities

If the jury is not given any instruction which addresses the potential inferences to be made from missing witnesses or missing evidence, the jury may make such inferences on its own. Hence, it may be appropriate to give a preemptive instruction which seeks to preclude the jury from drawing improper or speculative inferences.

“[T]he need for an instruction becomes even clearer when the issue is viewed from the perspective of the jurors at trial. A recent article calls attention to the fact that jurors form inferences from the absence of evidence that they had expected to see produced, and suggests that judges should take such “negative inferences” into account when ruling on the admissibility of evidence. This problem is fundamental. Jurors are passive; during the course of a trial they are expected to decide issues based on incomplete evidence, evidence that is in the absolute control of the litigating parties. Naturally, questions will arise in the minds of any people put into such a situation, and jurors are no exception. Their expectations about having their questions answered will not always be fulfilled. Nor are they usually encouraged to ask their questions directly. While this may be understandable and necessary for expeditious trials of cases, it does not seem necessary to ignore the jurors’ frustrations and leave them without guidance in resolving their uncertainties.

Jurors’ uncertainties about missing witnesses should be treated as one part of a larger set of unresolved questions. The court should provide guidance by instructing the jury …” [Footnotes omitted]. (Robert Stier, Revisiting the Missing Witness InferenceC Quieting the Loud Voice from the Empty Chair, 44 Md.L.Rev. 137, 169 (1985); see also Yuen v. State (MD 1979) 403 A2d 819, 823 [A … even in the absence of an instruction, the jury is not precluded from drawing an adverse inference from missing evidence” ].)

Hence, if the rule is that no inference should be drawn, it may be appropriate to instruct that “no inference should be drawn by the failure … to call (that person) as a witness.” (Christensen v. State (MD 1975) 333 A2d 45, 49.)

Identification Of Parties—See FORECITE F 100.2 Note 1.

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

CLICK HERE FOR F 301 INST 8-15 TEXT.

F 301 Inst 8 Missing Witness/Missing Evidence Instruction Where Prosecution Has Failed To Use Due Diligence To Maintain Contact With Witness

*Add to CC 301:

The prosecution failed to have the witness __________ <name or description> available due to the failure of the police agencies to exercise due diligence in ascertaining the identity and address of the witness [maintaining contact with the witness] during the course of their investigation.

>Because of this failure, you must presume that the testimony of the witness, if [he] [she] were available, would be favorable to the defendant.

[Source: Deering’s California Evidence Code §413, “Suggested Forms.“ ]

Points and Authorities

If a witness is missing due to lack of diligence by the prosecution, the missing witness inference may be appropriate.

It is well settled that the confrontation clause of the Federal constitution (6th and 14th Amendments) requires the prosecution to exercise good faith and due diligence in obtaining and maintaining contact with confidential informants. (See Twiggs v. Superior Court (1983) 34 C3d 360, 365; Eleazer v. Superior Court (1970) 1 C3d 847, 851.) Hence, when the prosecution has failed to use due diligence and a material witness is not produced, a missing witness instruction may be appropriate. (See e.g., People v. Harper (MI 1983) 337 NW2d 310, 311 [error to refuse missing witness instruction when “res gestae“ witness not produced and prosecution failed to exercise due diligence in attempting to produce witness; testimony of witness was not cumulative because cross-examination could have revealed facts not mentioned in the police report].)

Identification Of Parties—See FORECITE F 100.2 Note 1.

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

RESEARCH NOTES: Annotation, Adverse Presumption Or Inference Based On State’s Failure To Produce Or Examine Informant In Criminal Prosecution—Modern Cases, 80 ALR4th 547.

F 301 Inst 9 Weaker Or Less Satisfactory Evidence Offered By Prosecution: Consideration Of Power Of State To Gather And Produce Evidence

*Add to CC 301:

When you evaluate the evidence, consider the power of the prosecution to gather and produce evidence. If the evidence offered by the prosecution was weaker and less satisfactory than other stronger or more satisfactory evidence which the prosecution could have offered, then you should view the weaker and less satisfactory evidence with distrust.

[See People v. Von Villas (1992) 10 CA4th 201, 245; see also Uniform Criminal Jury Instructions (Oregon), UCrJI 1025 [Less Satisfactory Evidence (State’s Burden of Proof)] (Oregon State Bar, 1998).]

Points and Authorities

The power of the prosecution to gather and produce evidence is a factor which affects the weight of any inference from the failure of the prosecution to present seemingly important evidence and thus gives rise to a further inference that the evidence would have been adverse to the prosecution.

While cautioning against the use of this instruction in criminal cases except in rare cases (see People v. Romero (1966) 244 CA2d 495, 504), the cases nevertheless recognize that the instruction may be appropriate “when it can be shown that a party is in fact in possession or has access to better and stronger evidence than was presented.“ (See People v. Von Villas (1992) 10 CA4th 201, 245; People v. Taylor (1977) 67 CA3d 403, 412.)

Identification Of Parties—See FORECITE F 100.2 Note 1.

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 301 Inst 10Missing Witness Instruction Should Not Be Used Against Defendant

*Add to CC 301:

The prosecution has the burden of proving the accused guilty beyond a reasonable doubt. Therefore, a defendant in a criminal case is not required to call any witnesses to establish his own innocence. Although you may draw an inference adverse to the prosecution from the failure of the prosecution to present certain evidence, you may not draw such an inference against the accused.

[Cf. Leventhal, Charges to the Jury and Requests to Charge in a Criminal Case (New York) 6:15 [Witnesses-Missing Witness Inference] & 3 (West, 1999).]

Points and Authorities

Because the defendant normally has no burden to produce any evidence, it would be improper for the jury to draw an inference against the defendant for failure to call a particular witness.

It has been suggested that the missing witness instruction should be limited to the prosecution’s case. (See e.g., State v. Greene (OR 1978) 583 P2d 1171, 1174 [“[t]he instruction unnecessarily called attention to defendant’s failure to testify, was therefore error, and requires reversal“ ]; see also State v. Mains (OR 1983) 669 P2d 1112, 1117; see also Commonwealth v. Bird (PA 1976) 361 A2d 737, 739 [reversible error to instruct jury that it could draw inference against defendant for failure to call bystander as witness even though the instruction also permitted the jury to draw an inference against the prosecution for its failure to call the same witness].)

“If the district judge uses this instruction, it should not be used against the defendant who offers no evidence in his defense. The jury is consistently instructed that the burden is on the government and the defendant is under no obligation to prove his innocence. The use of the instruction in this situation would severely undercut this view.“ (Federal Judicial Center, Pattern Criminal Jury Instruction 39 [Inference From Fact That Witness Not Called] commentary (1988).)

“Given the time-consuming nature of such exploration and the risk of jury confusion on the collateral issue of what an absent witness would have said, the Committee feels it is better practice not to give the instruction unless a case presents itself where the issue is especially important. Where the prosecution requests the instruction be given against the defendant, even greater problems are present.“ (Wisconsin Jury Instructions—Criminal, WIS-JI-Criminal 345 [Missing Witness] (University of Wisconsin Law School, 1999) comment.)

Identification Of Parties—See FORECITE F 100.2 Note 1.

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

USE NOTE: Same Concerns Apply To Less Satisfactory Evidence Instruction. See FORECITE F 301 Note 5 [Less Satisfactory Evidence Instruction As Improper Comment On Defendant’s Failure To Testify].

F 301 Inst 11 No Missing Witness Inference As To Defendant Who Fails To Testify

*Add to CC 301:

The defendant has a lawful right not to testify and has no obligation to present any evidence. [His] [Her] failure to testify and/or present any particular evidence or witnesses cannot be considered against [him] [her].

[Cf. Tennessee Pattern Instructions – Criminal, T.P.I.- Crim 42.16 [Absent Material Witness] (West, 5th ed. 2000).]

Points and Authorities

Use of a missing witness instruction when the defendant fails to testify unconstitutionally chills the defendant’s 5th Amendment privilege against self-incrimination.

A missing witness instruction may not be given as a result of the defendant’s failure to testify because a negative inference drawn from the defendant’s failure to testify creates an unconstitutional chilling effect upon the defendant’s unfettered exercise of the 5th Amendment privilege against compelled self-incrimination. (See Griffin v. California (1965) 380 US 609, 615 [85 SCt 1229; 14 LEd2d 106]; see also State v. Greene (OR 1978) 583 P2d 1171, 1174 [“[t]he instruction unnecessarily called attention to defendant’s failure to testify, was therefore error, and requires reversal“ ]; State v. Mains (OR 1983) 669 P2d 1112, 1117; Maryland Criminal Pattern Jury Instructions, MPJI—Cr 3:29 Comment [Missing Witness] & 4 (Micpel, 1999).)

Hence, the jury should understand that it is not permissible to draw a missing witness inference from the failure of the defendant to testify.

Identification Of Parties—See FORECITE F 100.2 Note 1.

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 301 Inst 12 Reverse Missing Witness Instruction Where Defendant Has No Obligation To Call Specific Witness

*Add to CC 301:

You must not draw any inference against the defendant from the failure of any witness to testify. Because the prosecution bears the burden of proof, the defendant has no obligation to call any particular witness or any witnesses at all.

Points and Authorities

Where an inference of guilt based on the defendant’s failure to call a witness would undermine the prosecution’s burden of proof or where the defendant has otherwise established that he or she has no obligation to call the witness, a specific instruction to the jury may be necessary to preclude the jury from making the improper inference.

It has been suggested that a “reverse missing witness“ instruction may be appropriate where it is beyond the power of the defendant to call a particular witness such as a co-defendant or immunized witness (e.g., U.S. v. Pitts (DC Cir. 1990) 918 F2d 197, 200 [witness could only have assisted the defendant by waiving his own 5th Amendment privilege against self-incrimination]; Garrison v. State (MD 1991) 594 A2d 1264, 1269; see also Christensen v. State (MD 1975) 333 A2d 45, 49 [failure to grant defendant’s requested instruction that defense has no duty to call missing accomplice and no inference could be drawn from failure to do so was prejudicial error]; State v. Dicks (TN 1981) 615 SW2d 126, 129.) It may be argued that the same rationale should apply to any issue as to which the prosecution has the burden of proof. Otherwise the jury could improperly find the defendant guilty simply because he or she relied on his constitutional rights. (See e.g., Griffin v. California (1965) 380 US 609, 611 [85 SCt 1229; 14 LEd2d 106]; Malloy v. Hogan (1964) 378 US 1, 7 [84 SCt 1489; 12 LEd2d 653].)