missing witness rule in Tennessee

2022Before a party is permitted to invoke the missing witness rule, the evidence must show that [1] the witness had knowledge or material facts, [2] that a relationship exists between the witness and the party that would naturally incline the witness to favor the party; and [3] that the missing witness was available to process of the [c]ourt for trial.” []Francis, 669 S.W.2d at 88 (quoting Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979)). “[W]hen it can be said ‘with reasonable assurance that it would have been natural for a party to have called the absent witness but for some apprehension about h

2018Before a party is permitted to invoke the missing witness rule, the evidence must show that [1] the witness had knowledge or material facts, [2] that a relationship exists between the witness and the party that would naturally incline the witness to favor the party; and [3] that the missing witness was available to process of the Court for trial.” []Francis, 669 S.W.2d at 88 (quoting Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979)). “[W]hen it can be said ‘with reasonable assurance that it would have been natural for a party to have called the absent witness but for some apprehension about his

2022Before a party is permitted to invoke the missing witness rule, the evidence must show that [1] the witness had knowledge or material facts, [2] that a relationship exists between the witness and the party that would naturally incline the witness to favor the party; and [3] that the missing witness was available to process of the [c]ourt for trial.” []Francis, 669 S.W.2d at 88 (quoting Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979)). “[W]hen it can be said ‘with reasonable assurance that it would have been natural for a party to have called the absent witness but for some apprehension about h

2022Before a party is permitted to invoke the missing witness rule, the evidence must show that [1] the witness had knowledge or material facts, [2] that a relationship exists between the witness and the party that would naturally incline the witness to favor the party; and [3] that the missing witness was available to process of the [c]ourt for trial.” []Francis, 669 S.W.2d at 88 (quoting Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979)). “[W]hen it can be said ‘with reasonable assurance that it would have been natural for a party to have called the absent witness but for some apprehension about h

2021To support a missing witness instruction, the party requesting it must establish “that ‘the witness had knowledge of material facts, that a relationship exists between the witness and the party that would naturally incline the witness to favor the party and that the missing witness was available to the process of the Court for trial.’” State v. Bigbee, 885 S.W.2d 797, 804 (Tenn. 1994) (quoting State v. Middlebrooks, 840 S.W.2d 317, 334-35 (Tenn. 1992)) (internal citation and quotation marks omitted).

2017Generally, the missing witness rule allows a party to argue and have the jury instructed “that if the other party has it peculiarly within his power to produce a witness whose testimony would naturally be favorable to him, the failure to call that witness creates an adverse inference that the testimony would not favor his contentions.” State v. Middlebrooks, 840 S.W.2d 317, 334 (Tenn. 1992).

2021To justify a missing witness instruction, “the witness who was not called must have not been equally available to both parties.” State v. Boyd, 867 S.W.2d 330, 337 (Tenn. Crim.

2016To justify a missing witness instruction, “the witness who was not called must have not been equally available to both parties.” State v. Boyd, 867 S.W.2d 330, 337 (Tenn. Crim.

2021To support a missing witness instruction, the party requesting it must establish “that ‘the witness had knowledge of material facts, that a relationship exists between the witness and the party that would naturally incline the witness to favor the party and that the missing witness was available to the process of the Court for trial.’” State v. Bigbee, 885 S.W.2d 797, 804 (Tenn. 1994) (quoting State v. Middlebrooks, 840 S.W.2d 317, 334-35 (Tenn. 1992)) (internal citation and quotation marks omitted).

2014To support a missing witness instruction, the party requesting it must establish “that ‘the witness had knowledge of material facts, that a relationship exists between the witness and the party that would naturally incline the witness to favor the party and that the missing witness was available to the process of the Court for trial.’” State v. Bigbee, 885 S.W.2d 797, 804 (Tenn. 1994) (quoting State v. Middlebrooks, 840 S.W.2d 317, 334-35 (1992))(internal citation and quotation marks ommitted).

2022Before a party is permitted to invoke the missing witness rule, the evidence must show that [1] the witness had knowledge or material facts, [2] that a relationship exists between the witness and the party that would naturally incline the witness to favor the party; and [3] that the missing witness was available to process of the [c]ourt for trial.” []Francis, 669 S.W.2d at 88 (quoting Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979)). “[W]hen it can be said ‘with reasonable assurance that it would have been natural for a party to have called the absent witness but for some apprehension about h

2018Before a party is permitted to invoke the missing witness rule, the evidence must show that [1] the witness had knowledge or material facts, [2] that a relationship exists between the witness and the party that would naturally incline the witness to favor the party; and [3] that the missing witness was available to process of the Court for trial.” []Francis, 669 S.W.2d at 88 (quoting Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979)). “[W]hen it can be said ‘with reasonable assurance that it would have been natural for a party to have called the absent witness but for some apprehension about his

2020Graves v. United States, 150 U.S. 118, 121 (1893).

2011State v. Francis, 669 S.W .2d 85, 88 (Tenn. 1984) (citing Graves v. United States, 150 U.S. 118, 121 (1893)).

2019In addition, the missing witness instruction is inappropriate “where the only object of calling such witness would be to produce corroborative, cumulative, or possibly unnecessary evidence[.]” Dickey v. McCord, 63 S.W.3d 714, 721 (Tenn. Ct. App. 2001)).

2013“The missing witness rule is premised on the idea that the absent witness, ‘if produced, would have made an intelligent statement about what was observed.’” Dickey v. McCord, 63 S.W.3d 714, 722 (Tenn. Ct. App. 2001) (quoting State v. Francis, 669 S.W.2d 85, 89 (Tenn. 1984)).

2013App. 1992) (citing State v. Overton, 644 S.W.2d 416, 417-18 (Tenn. Crim.

2012App. 1992) (citing State v. Overton, 644 S.W.2d 416, 417-18 (Tenn. Crim.

2006Kohler offers no citation to the record or to any authority in support of this argument. *400 “Under the missing witness rule, a party is entitled to argue, and have the jury instructed, that if the other party has it peculiarly within his power to produce a witness whose testimony would naturally be favorable to him, the failure to call that witness creates an adverse inference that the testimony would not favor his contentions.” State v. Middlebrooks, 840 S.W.2d 317, 334 (Tenn.1992) (citing State v. Francis, 669 S.W.2d 85, 88 (Tenn.1984); State v. Jones, 598 S.W.2d 209, 224 (Tenn.1980)).

1992State v. Francis, 669 S.W.2d 85, 88 (Tenn.1984); State v. Jones, 598 S.W.2d 209, 224 (Tenn.1980).

2004See State v. Thompson, 768 S.W.2d 239, 250 (Tenn. 1989).

2004State v. Thompson, 768 S.W.2d 239, 250 (Tenn. 1989).

2024Co., 944 S.W.2d 372, 379 (Tenn. Ct. App. 1996) (citing Waller v. Skeleton, 31 Tenn. App. 103, 118 , 212 S.W.2d 690, 697 (1948)).

2024Co., 944 S.W.2d 372, 379 (Tenn. Ct. App. 1996) (citing Waller v. Skeleton, 31 Tenn. App. 103, 118 , 212 S.W.2d 690, 697 (1948)).

2011In denying the Defendant’s motion, the trial court stated that there was no evidence that the informant was “within only the power of the state or the defendant.” In order to satisfy the Delk requirements, “the evidence must show that one of the parties has peculiarly available to him a witness with peculiar knowledge of the material facts at issue.” State v. Eldridge, 749 S.W.2d 756, 758 (Tenn. Crim.

2002Before the missing witness rule may be invoked, not only must the missing witness have been peculiarly available to the claiming party, but also the witness must have “peculiar knowledge of material facts.” Boyd, 867 S.W.2d at 337 ; see also State v. Eldridge, 749 S.W.2d 756, 758 (Tenn. Crim.

2024Co., 944 S.W.2d 372, 379 (Tenn. Ct. App. 1996) (citing Waller v. Skeleton, 31 Tenn. App. 103, 118 , 212 S.W.2d 690, 697 (1948)).

2003Co., 944 S.W.2d 372, 379 (Tenn. Ct. App. 1996) (citing Waller v. Skeleton, 212 S.W.2d 690, 697 (Tenn. Ct. App. 1948)).

2014App. 1992); Bolin v. State, 472 S.W.2d 232, 235 (Tenn. Crim.

1993State v. Overton, 644 S.W.2d 416, 417-18 (Tenn.Crim.App.1982); Bolin v. State, 4 Tenn.Cr.App. 387, 472 S.W.2d 232, 235 (1971).

1988State v. Jones, 598 S.W.2d 209, 224 (Tenn.1980); State v. Sanderson, 550 S.W.2d 236, 238 (Tenn.1977); National Life and Accident Ins.

1984State v. Jones, 598 S.W.2d 209, 224 (Tenn.1980); State v. Sanderson, 550 S.W.2d 236, 238 (Tenn.1977); National Life & Accident Ins.

2011Estate of Hamilton, 2011 WL 532296 , at *5 (citing Elchlepp v. Hatfield, 294 S.W.3d 146, 154 (Tenn. Ct. App. 2008)).

2011We recently reviewed the missing witness rule in Elchlepp v. Hatfield, 294 S.W.3d 146 (Tenn. Ct. App. 2008), and we reviewed the missing evidence rule in Richardson v. Miller, 44 S.W.3d 1 (Tenn. Ct. App. 2000).

2022It appears that Mother only recently began to make any progress, despite services being offered for 10 Mother also maintains that this case would be an appropriate application for the missing witness rule, which provides that “the failure of a party to call a witness gives rise to a permissible inference that the missing witness’ testimony would have been unfavorable to the party who failed to call the witness.” In re Estate of Price, 272 S.W.3d 113, 140 (Tenn. Ct. App. 2008) (quoting Gentry v. Gentry, No. E2000- 02714-COA-R3-CV, 2001 WL 839714 , at *4 (Tenn. Ct. App. July 25, 2001)).

2021The Defendant asserts that the prosecutor improperly commented on the Defendant’s invocation of his right to remain silent, improperly relied upon the missing witness rule, and improperly asserted his personal opinion regarding the veracity of the Defendant’s testimony. - 31 - “Closing arguments serve ‘to sharpen and to clarify the issues that must be resolved in a criminal case’” and enable “‘the opposing lawyers to present their theory of the case and to point out the strengths and weaknesses in the evidence to the jury.’” Hawkins, 519 S.W.3d at 47 (quoting State v. Banks, 271 S.W.3d 90, 130

2021Because counsel in criminal cases are “‘expected to be zealous advocates,’” they are afforded “‘great latitude in both the style and the substance of their arguments.’” Id. (quoting Banks, 271 S.W.3d at 130-31 ).

2020Additionally, the missing “witness” was a party.2 Generally, “a defendant in a civil case is not required to testify and has the right to rely upon the duty of the plaintiff to carry the burden of proof and to avail himself of the plaintiff’s failure to make out a case.” Runnells v. Rogers, 596 S.W.2d 87, 90 (Tenn. 1980).

2020Id.

2020Beacon4, LLC v. I & L Invs., LLC, 514 S.W.3d 153, 185 (Tenn. Ct. App. 2016) (“[Party] appears to be asking this Court to apply the missing witness rule to this bench trial, which we determine to be inapplicable.”); see also Nelson v. Justice, No E2017-00895-COA-R3-CV, 2019 WL 337040 , at *19 (Tenn. Ct. App. Jan. 25, 2019) (“Father fails to explain how this rule applies to a bench trial like the one here.”) perm. app. denied, (Tenn. Sept. 18, 2019); In re Estate of Hamilton, No. M2009-01882-COA- R3-CV, 2011 WL 532296 , at *6 (Tenn. Ct. App. Feb. 14, 2011) (“[T]he missing witness and missing evi

2016The missing witness rule provides: "[A] party is entitled to argue, and have the jury- instructed, that if the other party has it peculiarly within his power to produce a witness whose testimony would naturally be favorable to him, the failure to call that witness creates an adverse inference that the testimony would not favor his contentions.” Newcomb v. Kohler, 222 S.W.3d 368, 400 (Tenn. Ct. App. 2006) (quoting State v. Middlebrooks, 840 S.W.2d 317, 334 (Tenn. 1992), superseded by statute on other grounds as explained in State v. Pruitt, 415 S.W.3d 180, 209 (Tenn. 2013)). 12 .

2013Accordingly, trial courts have the duty to give “a complete charge of the law applicable to the facts of the case.” State v. Davenport, 973 S.W.2d 283, 287 (Tenn. Crim.

2013Specifically, he asserts that the court failed to charge all of the lesser-included offenses of aggravated assault; did not give instructions on the missing witness rule, the cancellation rule, the physical facts rule, and duress and necessity; and gave an “unconstitutional flight instruction.” “It is well-settled in Tennessee that a defendant has a right to a correct and complete charge of the law so that each issue of fact raised by the evidence will be submitted to the jury on proper instructions.” State v. Farner, 66 S.W.3d 188, 204 (Tenn. 2001) (citing State v. Garrison, 40 S.W.3d 426, 43

2013Specifically, he asserts that the court failed to charge all of the lesser-included offenses of aggravated assault; did not give instructions on the missing witness rule, the cancellation rule, the physical facts rule, and duress and necessity; and gave an “unconstitutional flight instruction.” “It is well-settled in Tennessee that a defendant has a right to a correct and complete charge of the law so that each issue of fact raised by the evidence will be submitted to the jury on proper instructions.” State v. Farner, 66 S.W.3d 188, 204 (Tenn. 2001) (citing State v. Garrison, 40 S.W.3d 426, 43

2013Specifically, he asserts that the court failed to charge all of the lesser-included offenses of aggravated assault; did not give instructions on the missing witness rule, the cancellation rule, the physical facts rule, and duress and necessity; and gave an “unconstitutional flight instruction.” “It is well-settled in Tennessee that a defendant has a right to a correct and complete charge of the law so that each issue of fact raised by the evidence will be submitted to the jury on proper instructions.” State v. Farner, 66 S.W.3d 188, 204 (Tenn. 2001) (citing State v. Garrison, 40 S.W.3d 426, 43

2012The State contends that because the witnesses were equally available to both parties, the missing witness rule was inapplicable. -18- The prosecution in a criminal case is “under no obligation to produce every possible witness.” Hicks v. State, 539 S.W.2d 58, 59 (Tenn. Crim.

2012The State contends that because the witnesses were equally available to both parties, the missing witness rule was inapplicable. -18- The prosecution in a criminal case is “under no obligation to produce every possible witness.” Hicks v. State, 539 S.W.2d 58, 59 (Tenn. Crim.