missing witness doctrine in Washington

2016Tegland, Washington Practice: Evidence Law and Practice § 402.8, at 291 (6th ed. 2016) (The missing witness “requirements are sufficiently rigorous to make the rule rarely applicable in practice, especially in criminal cases.’’). 9 Montgomery, 163 Wn.2d at 598 . 10 State v. Cheatam, 150 Wn.2d 626, 652-53 , 81 P.3d 830 (2003) (The missing witness doctrine applies only if (1) the absent witness is particularly within the defense’s ability to produce, (2) the missing testimony is not merely cumulative, (3) the witness’s absence is not satisfactorily explained, (4) the witness is not incompetent o

2015Therefore, relying on all the Cheatam factors, the trial court misapplied the missing witness doctrine and erred by instructing the jury using the missing witness instruction. 150 Wn.2d at 652 -53. 3 The parties both argue that the trial court based its ruling in part on a mistaken belief that Conner' s counsel stated in opening that Duckworth would testify.

2026The missing witness rule provides that “ʻwhere evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and, without satisfactory explanation, he fails to do so,—the jury may draw an inference that it would be unfavorable to him.’” State v. Abdulle, 174 Wn.2d 411, 417 , 275 P.3d 1113 (2012) (internal quotation marks omitted) (quoting State v. Davis, 73 Wn.2d 271, 276 , 438 P.2d 185 (1968)).

2026The missing witness rule provides that “ʻwhere evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and, without satisfactory explanation, he fails to do so,—the jury may draw an inference that it would be unfavorable to him.’” State v. Abdulle, 174 Wn.2d 411, 417 , 275 P.3d 1113 (2012) (internal quotation marks omitted) (quoting State v. Davis, 73 Wn.2d 271, 276 , 438 P.2d 185 (1968)).

2025App. 553, 572-73 , 278 P.3d 203 (2012). 14 No. 59335-1-II Unique or “peculiar” control arises when a defendant asserts a defense that involves a witness of which the State had no prior knowledge or the name of whom is “ ‘known to the defendant alone.’ ” Id. at 572 (quoting Blair, 117 Wn.2d at 490 ); See also State v. Sundberg, 185 Wn.2d 147, 148-50 , 370 P.3d 1 (2016) (missing witness instruction appropriate when defendant asserted affirmative defense of unwitting possession of controlled substances and testified a man not previously mentioned to the State lent him overalls that contained the

2025App. 553, 572-73 , 278 P.3d 203 (2012). 14 No. 59335-1-II Unique or “peculiar” control arises when a defendant asserts a defense that involves a witness of which the State had no prior knowledge or the name of whom is “ ‘known to the defendant alone.’ ” Id. at 572 (quoting Blair, 117 Wn.2d at 490 ); See also State v. Sundberg, 185 Wn.2d 147, 148-50 , 370 P.3d 1 (2016) (missing witness instruction appropriate when defendant asserted affirmative defense of unwitting possession of controlled substances and testified a man not previously mentioned to the State lent him overalls that contained the

2016Tegland, Washington Practice: Evidence Law and Practice § 402.8, at 291 (6th ed. 2016) (The missing witness “requirements are sufficiently rigorous to make the rule rarely applicable in practice, especially in criminal cases.’’). 9 Montgomery, 163 Wn.2d at 598 . 10 State v. Cheatam, 150 Wn.2d 626, 652-53 , 81 P.3d 830 (2003) (The missing witness doctrine applies only if (1) the absent witness is particularly within the defense’s ability to produce, (2) the missing testimony is not merely cumulative, (3) the witness’s absence is not satisfactorily explained, (4) the witness is not incompetent o

2014The defendant is able to produce a witness if " the witness is peculiarly available to the parry, i. e., peculiarly within the [ defendant' s] power to produce." State v. Cheatam, 150 Wn.2d 626, 652 , 81 P. 3d 830 ( 2003). 3 As argued by counsel at oral argument, the missing witness doctrine is not directly at issue here because it must have been " raised early enough in the [ trial] proceedings to provide an opportunity for rebuttal or explanation" of why the witness was not called.

2018II Mason argues that the trial court erred in declining to give the missing evidence instruction. "[A] trial court's refusal to give an instruction [to the jury] based upon a ruling of law is reviewed de novo." State v. Walker, 136 Wn.2d 767, 772 , 966 P.2d 883 (1998).2 A missing evidence instruction derives from the missing witness doctrine.

2018II Mason argues that the trial court erred in declining to give the missing evidence instruction. "[A] trial court's refusal to give an instruction [to the jury] based upon a ruling of law is reviewed de novo." State v. Walker, 136 Wn.2d 767, 772 , 966 P.2d 883 (1998).2 A missing evidence instruction derives from the missing witness doctrine.

2019State v. Flora, 160 Wn.

2014State v. Flora. 160 Wn.

2012A trial court abuses its discretion only where its decision is "manifestly unreasonable or based upon untenable grounds or reasons." State v. Powell, 126 Wash.2d 244, 258 , 893 P.2d 615 (1995). ¶ 33 A missing witness instruction informs the jury that it may infer from a witness's absence at trial that his or her testimony would have been unfavorable to the party who would logically have called that witness.

2012A trial court abuses its discretion only where its decision is "manifestly unreasonable or based upon untenable grounds or reasons." State v. Powell, 126 Wash.2d 244, 258 , 893 P.2d 615 (1995). ¶ 33 A missing witness instruction informs the jury that it may infer from a witness's absence at trial that his or her testimony would have been unfavorable to the party who would logically have called that witness.

2012The missing witness rule *1116 had been defined in an earlier opinion as follows: "[I]t has become a well established rule that where evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and, without satisfactory explanation, he fails to do so,—the jury may draw an inference that it would be unfavorable to him." Id. at 276 , 438 P.2d 185 (internal quotation marks omitted) (quoting Wright v. Safeway Stores, Inc., 7 Wash.2d 341, 346 , 109 P.2d 542 (1941)).

2012The missing witness rule *1116 had been defined in an earlier opinion as follows: "[I]t has become a well established rule that where evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and, without satisfactory explanation, he fails to do so,—the jury may draw an inference that it would be unfavorable to him." Id. at 276 , 438 P.2d 185 (internal quotation marks omitted) (quoting Wright v. Safeway Stores, Inc., 7 Wash.2d 341, 346 , 109 P.2d 542 (1941)).

2012Blair, 117 Wash.2d at 489 , 816 P.2d 718 (citing State v. Lopez, 29 Wash.App. 836, 841 , 631 P.2d 420 (1981)). ¶ 34 Here, the trial court did not abuse its discretion by refusing to give a missing witness instruction.

2012Blair, 117 Wash.2d at 489 , 816 P.2d 718 (citing State v. Lopez, 29 Wash.App. 836, 841 , 631 P.2d 420 (1981)). ¶ 34 Here, the trial court did not abuse its discretion by refusing to give a missing witness instruction.

2025State v. Houser, 196 Wn.

2020“The missing witness doctrine permits the jury to infer that evidence or testimony would be unfavorable to a party if that ‘evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it’ and that party fails to do so.” State v. Houser, 196 Wn.

2018II Mason argues that the trial court erred in declining to give the missing evidence instruction. "[A] trial court's refusal to give an instruction [to the jury] based upon a ruling of law is reviewed de novo." State v. Walker, 136 Wn.2d 767, 772 , 966 P.2d 883 (1998).2 A missing evidence instruction derives from the missing witness doctrine.

2018II Mason argues that the trial court erred in declining to give the missing evidence instruction. "[A] trial court's refusal to give an instruction [to the jury] based upon a ruling of law is reviewed de novo." State v. Walker, 136 Wn.2d 767, 772 , 966 P.2d 883 (1998).2 A missing evidence instruction derives from the missing witness doctrine.

2016State v. Sundberg, noted at 185 Wn.

2016State v. Sundberg, noted at 185 Wn.

1968We are therefore of the opinion that the inference arising under the missing witness rule, as a result of the prosecution's failure to call the undersheriff, is well founded in the instant case. [6, 7] Finally, the state argues that Belknap failed to make any showing or contention that the testimony of any witness, who could testify as to any material facts, was being willfully withheld, relying on State v. Baker, 56 Wn.2d 846, 859 , 355 P.2d 806 (1960), in which we held that The inference that witnesses available to a party and not called would have testified adversely to such party arises on

1968We are therefore of the opinion that the inference arising under the missing witness rule, as a result of the prosecution's failure to call the undersheriff, is well founded in the instant case. [6, 7] Finally, the state argues that Belknap failed to make any showing or contention that the testimony of any witness, who could testify as to any material facts, was being willfully withheld, relying on State v. Baker, 56 Wn.2d 846, 859 , 355 P.2d 806 (1960), in which we held that The inference that witnesses available to a party and not called would have testified adversely to such party arises on

2025“The missing evidence instruction derives from the missing witness doctrine.” State v. Derri, 17 Wn.

2023“The missing evidence instruction derives from the missing witness doctrine.” State v. Derri, 17 Wn.

2009The Comments Were Not Invited or Provoked ¶ 23 "[E]ven if improper, a prosecutor's remarks that are in direct response to a defense argument are not grounds for reversal as long as the remarks do not `go beyond what is necessary to respond to the defense and must not bring before the jury matters not in the record, or be so prejudicial that an instruction cannot cure them.'" State v. Francisco, 148 Wash.App. 168, 178-79 , 199 P.3d 478 (2009) (quoting State v. Dykstra, 127 Wash.App. 1, 8 , 110 P.3d 758 (2005)). ¶ 24 During closing arguments, Dixon's counsel addressed Dixon's dominion and contro

2009The Comments Were Not Invited or Provoked ¶23 “[E]ven if improper, a prosecutor’s remarks that are in direct response to a defense argument are not grounds for reversal as long as the remarks do not ‘go beyond what is necessary to respond to the defense and [they] must not bring before the jury matters not in the record, or be so prejudicial that an instruction cannot cure them.’ ” State v. Francisco, 148 Wn.

2005In these cases, the juror affidavits or declarations related to (1) whether the jury properly followed the court's instructions in reaching its verdict, Ayers, 117 Wash.2d at 769 , 818 P.2d 1337 ; (2) what evidence the jury considered and its reasoning behind a specific damages award, Cox v. Charles Wright Acad., Inc., 70 Wash.2d 173, 179-80 , 422 P.2d 515 (1967); (3) the subjective effect of juror misconduct on the jury's decision, Gardner, 60 Wash.2d at 842-43 , 376 P.2d 651 , 379 P.2d 918 ; (4) the potential misapplication of a missing witness instruction during deliberations, State v. Mark

2005In these cases, the juror affidavits or declarations related to (1) whether the jury properly followed the court's instructions in reaching its verdict, Ayers, 117 Wash.2d at 769 , 818 P.2d 1337 ; (2) what evidence the jury considered and its reasoning behind a specific damages award, Cox v. Charles Wright Acad., Inc., 70 Wash.2d 173, 179-80 , 422 P.2d 515 (1967); (3) the subjective effect of juror misconduct on the jury's decision, Gardner, 60 Wash.2d at 842-43 , 376 P.2d 651 , 379 P.2d 918 ; (4) the potential misapplication of a missing witness instruction during deliberations, State v. Mark

2005In these cases, the juror affidavits or declarations related to (1) whether the jury properly followed the court’s instructions in reaching its verdict, Ayers, 117 Wn.2d at 769 ; (2) what evidence the jury considered and its reasoning behind a specific damages award, Cox v. Charles Wright Acad., Inc., 70 Wn.2d 173, 179-80 , 422 P.2d 515 (1967); (3) the subjective effect of juror misconduct on the jury’s decision, Gardner, 60 Wn.2d at 842-43 ; (4) the potential misapplication of a missing witness instruction during deliberations, State v. Marks, 90 Wn.

2005In these cases, the juror affidavits or declarations related to (1) whether the jury properly followed the court's instructions in reaching its verdict, Ayers, 117 Wash.2d at 769 , 818 P.2d 1337 ; (2) what evidence the jury considered and its reasoning behind a specific damages award, Cox v. Charles Wright Acad., Inc., 70 Wash.2d 173, 179-80 , 422 P.2d 515 (1967); (3) the subjective effect of juror misconduct on the jury's decision, Gardner, 60 Wash.2d at 842-43 , 376 P.2d 651 , 379 P.2d 918 ; (4) the potential misapplication of a missing witness instruction during deliberations, State v. Mark

2005In these cases, the juror affidavits or declarations related to (1) whether the jury properly followed the court’s instructions in reaching its verdict, Ayers, 117 Wn.2d at 769 ; (2) what evidence the jury considered and its reasoning behind a specific damages award, Cox v. Charles Wright Acad., Inc., 70 Wn.2d 173, 179-80 , 422 P.2d 515 (1967); (3) the subjective effect of juror misconduct on the jury’s decision, Gardner, 60 Wn.2d at 842-43 ; (4) the potential misapplication of a missing witness instruction during deliberations, State v. Marks, 90 Wn.

2005In these cases, the juror affidavits or declarations related to (1) whether the jury properly followed the court's instructions in reaching its verdict, Ayers, 117 Wash.2d at 769 , 818 P.2d 1337 ; (2) what evidence the jury considered and its reasoning behind a specific damages award, Cox v. Charles Wright Acad., Inc., 70 Wash.2d 173, 179-80 , 422 P.2d 515 (1967); (3) the subjective effect of juror misconduct on the jury's decision, Gardner, 60 Wash.2d at 842-43 , 376 P.2d 651 , 379 P.2d 918 ; (4) the potential misapplication of a missing witness instruction during deliberations, State v. Mark

2005State v. Davis, 116 Wn.

2005State v. Davis, 116 Wash.App. 81 , 64 P.3d 661 (2003). ¶ 11 This court granted review and initially consolidated the case with State v. Mills, 154 Wash.2d 1 , 109 P.3d 415 (2005), No. 73894-7 (Wash. Apr. 28, 2003), because the primary issue in each case was the propriety of the "to convict" jury instruction.