missing witness instruction in Massachusetts

2026"A missing witness instruction is appropriate when a party 'has knowledge of a person who can be located and brought forward, who is friendly to, or at least not hostilely disposed toward, the party, and who can be expected to give testimony of distinct importance to the case,' and the party, without explanation, fails to call the person as a witness." Commonwealth v. Saletino, 449 Mass. 657, 667 (2007), quoting Commonwealth v. Anderson, 411 Mass. 279 , 280 n.1 (1991).

2026Thus, the trial judge properly denied the defendant's request for a missing witness instruction before closing arguments. 4 Because the foundational requirements for a missing witness instruction were not met, it was error for the trial judge to allow defense counsel to make the missing witness argument to the jury.2 See Saletino, 449 Mass. at 670 .

2013First, he argues that the trial judge abused his discretion by not giving a “missing witness” instruction. “[Wjhether to give a missing witness instruction is a decision that must be made on a case-by-case basis, in the discretion of the trial judge” and overturned “only if it was ‘manifestly unreasonable.’ ” Commonwealth v. Ivy, 55 Mass. App. Ct. 851, 860 (2002), quoting from Commonwealth v. Thomas, 429 Mass. 146, 151 (1999).

2004The general principles concerning a missing witness instruction are set forth in Commonwealth v. Thomas, 429 Mass. 146, 150-151 (1999): “Where a defendant has knowledge of an available witness whose general disposition toward the defendant is friendly, or at least not hostile, and who could be expected to give testimony of distinct importance to the defendant’s case, but the defendant, without explanation, fails to call that witness, the jury may permissibly infer that that witness would have given testimony detrimental to the defendant’s case. . . .

2018Moreover, there is no reason to believe that White would have provided unique testimony adverse to the Commonwealth's case; instead, the defendant offers only speculation that White might have been able to identify the shooter's face. 6 "Because the inference [from a missing witness instruction], when it is made, can have a seriously adverse effect on the noncalling party -- suggesting, as it does, that the party has wilfully attempted to withhold or conceal significant evidence -- it should be invited only in clear cases, and with caution." Commonwealth v. Schatvet , 23 Mass. App. Ct. 130 , 1

2007Therefore, a missing witness instruction should be provided “only in clear cases, and with caution.” Commonwealth v. Figueroa, 413 Mass. 193, 199 (1992), S.C., 422 Mass. 72 (1996), quoting Commonwealth v. Schatvet, supra. See Commonwealth v. Franklin, 366 Mass 284, 294 (1974) (“The effect of the [missing witness] comment may be substantial in the jury’s deliberations.

2014Here, the jury’s question, and the judge’s response, took on significance because at trial the judge declined to give the defendant’s missing witness instruction regarding Hayes given that the Commonwealth had legitimate tactical reasons for not calling him and he had been equally available to both sides, but neither *224 side wished to call him. 21 See Commonwealth v. Salentino, 449 Mass. 657, 668 (2007); Commonwealth v. Figueroa, 413 Mass. 193, 199 (1992), S.C., 422 Mass. 72 (1996).

2014Here, the jury's question, and the judge's response, took on significance because at trial the judge declined to give the defendant's missing witness instruction regarding Hayes because the Commonwealth had legitimate tactical reasons for not calling him and he had been equally available to both sides, but neither 40 side wished to call him.21 See Commonwealth v. Salentino, 449 Mass. 657, 668 (2007); Commonwealth v. Figueroa, 413 Mass. 193, 199 (1992), S.C., 422 Mass. 72 (1996).

2006Based upon the above discussed considerations, we conclude that the judge did not err in determining that the defendant would not have been entitled to a missing witness instruction, even had he so requested, because of his inability to satisfy the requisite foundational requirements set out in Graves, supra at 82-84 . (b) Ineffective assistance of trial counsel.

2002The applicable general principle remains, “whether to give a missing witness instruction is a decision that must be made on a case-by-case basis, in the discretion of the trial judge . . . [whose] decision will be overturned on appeal only if it was ‘manifestly unreasonable.’ ” Commonwealth v. Thomas, 429 Mass. 146, 151 (1999), quoting from Commonwealth v. Graves, 35 Mass. App. Ct. 76, 86 (1993).

2019Mitchell also argues, citing Commonwealth v. Smith , 49 Mass. App. Ct. 827 , 733 N.E.2d 159 (2000), that, by permitting defense counsel to make a missing witness argument in closing, "the judge implicitly concluded that the foundational requisites [for the missing witness instruction] had been met." Id . at 830, 733 N.E.2d 159 .

2019Mitchell also argues, citing Commonwealth v. Smith , 49 Mass. App. Ct. 827 , 733 N.E.2d 159 (2000), that, by permitting defense counsel to make a missing witness argument in closing, "the judge implicitly concluded that the foundational requisites [for the missing witness instruction] had been met." Id . at 830, 733 N.E.2d 159 .

2008“Whether an inference can be drawn from the failure to call witnesses necessarily depends, as with inferences generally, upon the posture of the particular case and the state of the evidence.” Commonwealth v. O’Rourke, 311 Mass. 213, 222 (1942).

1986Mentioned in this connection have been the privilege against self-incrimination, the defendant’s right without inference against him to decline to testify, and the Commonwealth’s fixed burden to prove guilt beyond a reasonable doubt. 11 “As in instances of other sought-after inferences, it is the court’s function to determine whether a jury could appropriately deduce from the underlying circumstances the adverse fact sought to be inferred, leaving it for the jury to say whether the inference actually ought to be drawn in the particular case. [Footnote omitted.] The noncalling party’s explanati

2006Defense counsel’s initial error, combined with the missing witness instruction, was “decisive.” Commonwealth v. Franklin, 366 Mass. 284, 294 (1974).

2005The purport of the testimony challenged here was not such that the defendant’s failure to produce an innocent explanation (to counteract the Commonwealth’s evidence) “may be deemed by the judge to be a fair matter for comment,” Commonwealth v. Franklin, 366 Mass. 284, 293-294 (1974), to which principles of the missing witness doctrine would apply.

2026"A missing witness instruction is appropriate when a party 'has knowledge of a person who can be located and brought forward, who is friendly to, or at least not hostilely disposed toward, the party, and who can be expected to give testimony of distinct importance to the case,' and the party, without explanation, fails to call the person as a witness." Commonwealth v. Saletino, 449 Mass. 657, 667 (2007), quoting Commonwealth v. Anderson, 411 Mass. 279 , 280 n.1 (1991).

2019"A missing witness instruction is appropriate when a party 'has knowledge of a person who can be located and brought forward, who is friendly to, or at least not hostilely disposed toward, the party, and who can be expected to give testimony of distinct importance to the case,' and the party, without explanation, fails to call the person as a witness." Commonwealth v. Saletino , 449 Mass. 657 , 667, 871 N.E.2d 455 (2007), quoting Commonwealth v. Anderson , 411 Mass. 279 , 280 n.1, 581 N.E.2d 1296 (1991).

2024On appeal, the defendant submits he was prejudiced by his counsel not requesting a missing witness instruction because the Commonwealth failed to call the witnesses who had allegedly received the mail from the defendant. 5 "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 ju

2017"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.' "

2006In 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.” Co

2004“In determining whether a sufficient foundation exists, the judge is to consider four factors: (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.” Commonwealth v. Alves,

2023Even assuming that none of these factors supported the judge's decision to deny the requested instruction, however, we conclude that on the strength of the evidence of the victim's intoxication alone, the judge was within her discretion in concluding that a missing witness instruction was not required. 2 See Williams, 450 Mass. at 901 .

2018"We review a judge's decision to give or not give a missing witness instruction under the abuse of discretion standard." Commonwealth v. Williams , 450 Mass. 894 , 901 (2008).

2001“The defendant may always relieve himself from any unfavorable inference [based upon his failure to call an important witness on his behalf] by showing that by reason of sickness or absence of the desired witness or from any other cause he has been unable to produce him; but he is to be held to reasonable effort to produce the witness, and in the absence of any evidence of such effort the rule [allowing unfavorable comment or a missing witness instruction] applies.” Commonwealth v. Graves, 35 Mass. App. Ct. at 85 , quoting from Commonwealth v. Spencer, 212 Mass. 438, 452 (1912).

1998“He is to be held to reasonable effort to produce the witness, and in the absence of any evidence of such effort the rule [allowing unfavorable comment or a missing witness instruction] applies.” Commonwealth v. Graves, 35 Mass. App. Ct. at 85 , quoting from Commonwealth v. Spencer, 212 Mass. 438, 452 (1912).

2024On appeal, the defendant submits he was prejudiced by his counsel not requesting a missing witness instruction because the Commonwealth failed to call the witnesses who had allegedly received the mail from the defendant. 5 "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 ju

2017"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.' "

2025The defendant contends that the judge abused his discretion by declining to give a missing witness instruction with respect to the Commonwealth's failure to call a witness from any of the banks. 6 "Because such an instruction can be a powerful influence on the jury, a missing witness instruction should be provided 'only in clear cases, and with caution.'" Commonwealth v. Wilkerson, 486 Mass. 159 , 177 (2020), quoting Commonwealth v. Williams, 475 Mass. 705, 721 (2016).

2018See, e.g., Commonwealth v. Williams , 475 Mass. 705 , 721 (2016).

2024"The decision to provide a missing witness instruction to the jury is 'within the discretion of the trial judge, and will not be reversed unless the decision was manifestly unreasonable.'" Commonwealth v. Figueroa, 79 Mass. App. Ct. 389, 400 (2011), quoting Commonwealth v. Saletino, 449 Mass. 657, 667 (2007).

2023"The decision to provide a missing witness instruction to the jury is 'within the discretion of the trial judge, and will not be reversed unless the decision was manifestly unreasonable.'" Commonwealth v. Figueroa, 79 Mass. App. Ct. 389, 400 (2011), quoting Commonwealth v. Saletino, 449 Mass. 657, 667 (2007).

2017See Commonwealth v. Vasquez , 27 Mass. App. Ct. 655 , 658 (1989) ("[I]f counsel plans to argue to the jury that an inference may be drawn against the opposing party for failure to call a witness, the proper practice is first to obtain the permission of the trial judge to do so").

1993See Commonwealth v. Vasquez, 27 Mass. App. Ct. at 658-659 .

2015See Commonwealth v. Rollins, 441 Mass. 114, 117-118 (2004).

2006“Where a defendant has knowledge of an available witness whose general disposition toward the defendant is friendly, or at least not hostile, and who could be expected to give testimony of distinct importance to the defendant’s case, but the defendant, without explanation, fails to call that witness, the jury may permissibly infer that that witness would have given testimony detrimental to the defendant’s case.” Commonwealth v. Rollins, 441 Mass. 114, 118 (2004), quoting from Commonwealth v. Thomas, 429 Mass. 146, 150-151 (1999).

2006See Commonwealth v. Zagranski, 408 Mass. 278, 287 (1990) (jury can only draw negative inference from failure to call witness if, among other things, “the witness’s absence [is] not explained in the circumstances of the case”); Commonwealth v. Gagliardi, 29 Mass. App. Ct. 225, 244 (1990) (judge should decline to give missing witness instruction if given plausible reason for nonproduction of witness).

2001See Commonwealth v. Gagliardi, 29 Mass. App. Ct. 225, 243-244 (1990), S.C., 418 Mass. 562 (1994), cert. denied, 513 U.S. 1091 (1995); Commonwealth v. Spencer, 49 Mass. App. Ct. 383, 386 (2000).

1990Burgess v. United States, 440 F.2d 226, 237 (D.C.

1987The explanation is sufficient, and “the missing witness rule is properly rejected, where the trial judge is ‘satisfied that the circumstances thus offered would, in ordinary logic and experience, furnish a plausible reason for nonproduction. ’ [Quoting from 2 Wigmore, Evidence § 290 (1979).]” Schatvet, supra at 135 n.11, quoting from Burgess v. United States, 440 F.2d 226, 237 (D.C.

2000Commonwealth v. Bryer, 398 Mass. at 12 .

1986Co., 341 Mass. at 509 ; Commonwealth v. Bryer, 398 Mass. 9, 11 (1986); Commonwealth v. Happnie, 3 Mass. App. Ct. 193, 194-195, 197-198 (1975).

2024See Commonwealth v. Conceicao, 388 Mass. 255, 264-265 (1983) (failure by defense counsel to request judicial action cannot amount to ineffective assistance where doing so would have been futile).

2023See Commonwealth v. Caruso, 476 Mass. 275, 284-285 (2017). 13 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.'" Commonwealth v. Broomhead, 67 Mass. App. Ct. 547, 552 (2006), quoting Commonwealth v. Ortiz, 61 Mass. App. Ct. 468, 471 (2004).

2017If Hepburn does not testify, the Commonwealth could request a missing witness instruction, which would permit the jury to draw a negative inference against the defendant on the assumption that her testimony would not be favorable to him.8 See Commonwealth v. Beltrandi, 89 Mass. App. Ct. 196, 203 (2016).

2013First, he argues that the trial judge abused his discretion by not giving a “missing witness” instruction. “[Wjhether to give a missing witness instruction is a decision that must be made on a case-by-case basis, in the discretion of the trial judge” and overturned “only if it was ‘manifestly unreasonable.’ ” Commonwealth v. Ivy, 55 Mass. App. Ct. 851, 860 (2002), quoting from Commonwealth v. Thomas, 429 Mass. 146, 151 (1999).

2007We decline to rest our conclusion that there was no error in the judge’s refusal to provide a missing witness instruction on the argument asserted by the Commonwealth that the informant was present in the court room, and where a witness is “equally available to parties on both sides of a dispute, no inference should be drawn against either side for failing to call the witness.” Commonwealth v. Hoilett, 430 Mass. 369, 376 (1999), quoting Commonwealth v. Cobb, 397 Mass. 105, 108 (1986), and cases cited.