(a) Argument by Counsel. Counsel is not permitted to make a missing-witness argument without first obtaining judicial approval; if approval is granted, the court must give a missing witness instruction.
(b) Jury Instruction. The court may instruct the jury that an adverse inference may be drawn from a party’s failure to call a witness when
(1) the witness is shown to be available;
(2) the witness is friendly, or at least not hostile, to the party;
(3) the witness is expected to give noncumulative testimony of distinct importance to the case; and
(4) there is no logical or tactical explanation for the failure to call the witness.
Subsection (a). This subsection is derived from Commonwealth v. Pena, 455 Mass. 1, 16–17, 913 N.E.2d 815, 828 (2009); Commonwealth v. Saletino, 449 Mass. 657, 670, 871 N.E.2d 455, 466 (2007); and Commonwealth v. Ortiz, 61 Mass. App. Ct. 468, 471, 811 N.E.2d 518, 521–522 (2004). See Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 640, 751 N.E.2d 848, 861 (2001) (same principles apply in civil cases). The missing witness argument and the missing witness instruction are interrelated. The preferred practice is for counsel and the court to discuss the matter of a missing witness argument before the closing arguments. See Commonwealth v. Williams, 450 Mass. 894, 907, 882 N.E.2d 850, 861 (2008). If the trial judge decides not to give the instruction, counsel is not permitted to make the argument. Commonwealth v. Saletino, 449 Mass. at 670–672, 871 N.E.2d at 466–468.
In Commonwealth v. Saletino, 449 Mass. 657, 871 N.E.2d 455 (2007), the Supreme Judicial Court explained the critical distinction between argument by counsel that the evidence is insufficient, and the missing witness argument:
“A defendant has wide latitude in every case to argue that the Commonwealth has failed to present sufficient evidence and, in this sense, that there is an ‘absence’ of proof or that evidence is ‘missing.’ That is distinctly different from a missing witness argument, however. In the former, the defendant argues that the evidence that has been produced is inadequate; the defendant may even legitimately point out that a specific witness or specific evidence has not been produced; but the defendant does not argue or ask the jury to draw any conclusions as to the substance of the evidence that has not been produced. In the latter, the defendant points an accusatory finger at the Commonwealth for not producing the missing witness and urges the jury to conclude affirmatively that the missing evidence would have been unfavorable to the Commonwealth. That is the essence of the adverse inference.”
Id. at 672, 871 N.E.2d at 467–468. Accord Commonwealth v. Pena, 455 Mass. at 17, 913 N.E.2d at 828.
Subsection (b). This subsection is derived from Commonwealth v. Saletino, 449 Mass. 657, 668, 871 N.E.2d 455, 464 (2007), and Commonwealth v. Anderson, 411 Mass. 279, 280 n.1, 581 N.E.2d 1296, 1297 n.1 (1991). See also Commonwealth v. Franklin, 366 Mass. 284, 292–295, 318 N.E.2d 469, 474–477 (1974). The instruction permits the jury, “if they think reasonable in the circumstances, [to] infer that the person, had he been called, would have given testimony unfavorable to the party.” Id.
Whether to allow argument and give a missing witness instruction is within the discretion of the trial judge, even when the foundation requirements are met. Commonwealth v. Thomas, 429 Mass. 146, 151, 706 N.E.2d 669, 673 (1999). It is a highly fact-specific decision, and it cannot be insisted on as a matter of right. Id. “Because the inference, when it is made, can have a seriously adverse effect on the noncalling party—suggesting, as it does, that the party has willfully attempted to withhold or conceal significant evidence—it should be invited only in clear cases, and with caution.” Commonwealth v. Williams, 450 Mass. 894, 900–901, 882 N.E.2d 850, 856 (2008), quoting Commonwealth v. Schatvet, 23 Mass. App. Ct. 130, 134, 499 N.E.2d 1208, 1211 (1986). If the instruction is given, the court must take care not to negate its effect by instructing the jury not to consider anything beyond the evidence actually introduced at trial. See Commonwealth v. Remedor, 52 Mass. App. Ct. 694, 701, 756 N.E.2d 606, 612 (2001).
Foundation for the Instruction. In Commonwealth v. Broomhead, 67 Mass. App. Ct. 547, 855 N.E.2d 413 (2006), the court stated as follows:
“In order to determine whether there has been a sufficient foundation for a missing witness instruction, we look at (1) whether the case against the defendant is [so strong that,] faced with the evidence, the defendant would be likely to call the missing witness if innocent; (2) whether the evidence to be given by the missing witness is important, central to the case, or just collateral or cumulative; (3) whether the party who fails to call the witness has superior knowledge of the whereabouts of the witness; and (4) whether the party has a ‘plausible reason’ for not producing the witness.”
Id. at 552, 855 N.E.2d at 418, quoting Commonwealth v. Alves, 50 Mass. App. Ct. 796, 802, 741 N.E.2d 473, 480 (2001). Even where the foundational requirements are met, the judge has discretion to decline to give the instruction and refuse to permit the argument if the judge finds that an adverse inference is not warranted. Commonwealth v. Pena, 455 Mass. 1, 17 n.15, 913 N.E. 2d 815, 828 n.15 (2009).
Is the “Missing Witness” Available? Availability is “the likelihood that the party against whom the inference is to be drawn would be able to procure the missing witness’[s] physical presence in court.” Commonwealth v. Happnie, 3 Mass. App. Ct. 193, 197, 326 N.E.2d 25, 29 (1975). Availability does not necessarily require proof of “actual physical whereabouts,” but the court will look at whether the party made reasonable efforts to produce the witness under the circumstances. Commonwealth v. Luna, 46 Mass. App. Ct. 90, 95–96 nn.3 & 6, 703 N.E.2d 740, 743–744 nn.3 & 6 (1998). Compare Commonwealth v. Smith, 49 Mass. App. Ct. 827, 830–831, 733 N.E.2d 159, 162 (2000) (basis to conclude that witnesses lived in area and no showing of impediment to obtaining their testimony), with Commonwealth v. Ortiz, 67 Mass. App. Ct. 349, 350, 853 N.E.2d 1079, 1087 (2006) (defendant not entitled to missing witness instruction where he failed to show that prosecutor had knowledge of witness’s whereabouts).
A missing witness instruction is not warranted where a witness is equally available to both sides. Commonwealth v. Cobb, 397 Mass. 105, 108, 489 N.E.2d 1246, 1248 (1986). For example, in Commonwealth v. Hoilett, 430 Mass. 369, 376, 719 N.E.2d 488, 494 (1999), the court ruled the instruction was not warranted because both sides had the same contact information for a witness who was not aligned with either side. The instruction may properly be given where the missing witness is more friendly to one side than the other, even if the witness was available to the party requesting the instruction. See Commonwealth v. Thomas, 429 Mass. 146, 151–152, 706 N.E.2d 669, 674 (1999). See also Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 641, 751 N.E.2d 848, 862 (2001) (defendant corporation’s vice president not absent where plaintiff could have subpoenaed him to testify).
Is the “Missing Witness” Friendly, or At Least Not Hostile, to the Party? “The jury should ordinarily be instructed not to draw inferences from the neglect of a defendant to call witnesses, unless it appears to be within his power to call others than himself, and unless the evidence against him is so strong that, if innocent, he would be expected to call them.” Commonwealth v. Finnerty, 148 Mass. 162, 167, 19 N.E. 215, 217–218 (1889). See Commonwealth v. Rollins, 441 Mass. 114, 118–119, 803 N.E.2d 1256, 1259–1260 (2004); Commonwealth v. Thomas, 429 Mass. 146, 152, 706 N.E.2d 669, 674 (1999). See also Grady v. Collins Transp. Co., 341 Mass. 502, 509, 170 N.E.2d 725, 729 (1960) (“The plaintiff’s testimony was uncorroborated and was opposed by that of three witnesses, which, if accepted, showed his admitted fault to be the cause of the accident. The names of the plaintiff’s companions had been given to his counsel. There was very substantial likelihood that, notwithstanding the nine year interval, one or more of them lived in Worcester or near by.”).
Would the “Missing Witness” Give Noncumulative Testimony of Importance? A missing witness instruction is warranted where the witness would be expected to give testimony “of distinct importance to the case.” Commonwealth v. Schatvet, 23 Mass. App. Ct. 130, 134, 499 N.E.2d 1208, 1210 (1986). In determining the potential importance of the missing witness’s testimony, the court may consider whether the case against the party is so strong that the party would be likely to call the missing witness to rebut it. Commonwealth v. Broomhead, 67 Mass. App. Ct. 547, 552, 855 N.E.2d 413, 418 (2006). See Commonwealth v. Rollins, 441 Mass. at 119, 803 N.E.2d at 1260 (proper to give missing witness instruction where defendant failed to call “good friend” who was with him at time of his arrest for OUI); Commonwealth v. Caldwell, 36 Mass. App. Ct. 570, 581–582, 634 N.E.2d 124, 131 (1994) (defendant failed to call as alibi witness a cousin who supposedly let him into apartment at time of charged attack). Compare Commonwealth v. Graves, 35 Mass. App. Ct. 76, 81, 616 N.E.2d 817, 822 (1993) (failure to call alibi witness who was “central” to defense), with Commonwealth v. Thomas, 439 Mass. 362, 370, 787 N.E.2d 1047, 1056–1057 (2003) (absent witness’s testimony would have been “merely corroborative”).
Is There an Explanation for Failure to Call a “Missing Witness”? “If the circumstances, considered by ordinary logic and experience, suggest a plausible reason for nonproduction of the witness, the jury should not be advised of the inference.” Commonwealth v. Anderson, 411 Mass. 279, 282–283, 581 N.E.2d 1296, 1298 (1991). Thus, it is not error to refuse the instruction where it appears the witness may have been withheld because of his or her prior criminal record. Commonwealth v. Saletino, 449 Mass. 657, 668–669, 871 N.E.2d 455, 465 (2007). See Commonwealth v. Figueroa, 413 Mass. 193, 197, 595 N.E.2d 779, 782 (1992) (witnesses of limited mental capacity); Commonwealth v. Ortiz, 61 Mass. App. Ct. 468, 472–473, 811 N.E.2d 518, 523 (2004) (defense counsel believed, albeit mistakenly, that witness had been subpoenaed and had failed to appear such that further efforts to compel his presence would be futile); Commonwealth v. Gagliardi, 29 Mass. App. Ct. 225, 244, 559 N.E.2d 1234, 1246 (1990) (witness was reluctant to testify because of fear of intimidation by persons related to defendant). Contrast Brownlie v. Kanzaki Specialty Papers, Inc., 44 Mass. App. Ct. 408, 420, 691 N.E.2d 953, 962 (1998) (affidavit of company official stating only that “compelling business reasons” mandated his return to Japan did not provide judge with plausible explanation for his absence).
Criminal Cases. The judge must inform the jury in a criminal case that they may not draw an adverse inference from the defendant’s failure to call a witness unless and until they find beyond a reasonable doubt that if the witness had been called he or she would have given testimony unfavorable to the defendant. Commonwealth v. Niziolek, 380 Mass. 513, 522, 404 N.E.2d 643, 648 (1980). The inference may also be applied to a situation where evidence is “missing.” See Commonwealth v. Kee, 449 Mass. 550, 558, 870 N.E.2d 57, 65–66 (2007).
Cross-Reference: Section 1102, Spoliation or Destruction of Evidence.