Appeals Court (October 13, 2006)

The prosecutor's failure to obtain permission to comment on a missing witness, coupled with the judge's failure to take corrective action, constituted a substantial risk of a miscarriage of justice.

The defendant was on trial for a 3rd time charged with OUI, second offense. At his first two trials, the juries were unable to reach verdicts. On the night of his arrest, the defendant's brother and another friend were in his truck. In his closing argument relative to the defendant's credibility, the prosecutor rhetorically queried (without objection) as to why the defendant called neither his brother nor his friend as witnesses.

For the first time on appeal, the defendant claimed that the prosecutor's failure to seek the judge's approval before making the missing witness argument created a substantial risk of a miscarriage of justice. The Appeals Court agreed. Although prosecutors are permitted to ask a jury to draw a negative inference from a defendant's failure to call a witness who would be expected to help the defendant's case, the court noted that the "proper practice" is to first seek permission from the judge.

The Appeals Court determined that the missing witness argument, combined with the failure of the judge to sua sponte correct the matter, risked a miscarriage of justice because there was not a sufficient foundation for it. Specifically, (1) the case against the defendant was not so strong that he would have been likely to call the witnesses if he were innocent; (2) although the testimony would not have been cumulative, it would have come from witnesses who were credibility challenged; (3) although the defendant had "superior knowledge" as to the whereabouts of the witnesses, the police also knew of them, and the Commonwealth could have called them; and (4) even though the defendant failed to offer a plausible reason for not calling them, the court noted that both witnesses were under the influence at the time and not likely to help the defense.