missing witness instruction in District of Columbia

2006Thomas v. United States, 447 A.2d 52, 58 (D.C.1982). “[I]t seldom will constitute error to deny the missing witness instruction or to prohibit argument of the missing witness inference.” Stager v. Schneider, 494 A.2d 1307, 1313 (D.C.1985).

1995E.g., Ray v. United States, 616 A.2d 333 (D.C.1992); Miles, supra; Thomas, supra. While the trial judge was engaging in a bit of loose language in the colloquy, he then went on to apply requirements of this court’s opinions to defense requests for a missing witness instruction, stating “You have the permission 'you need under the Court of Appeals decision to make that argument [to the jury].” (Emphasis added.) The trial judge then made a crucial finding that “it’s not peculiarly within the power of the government to have produced this witness.” This constituted another application of this cour

2003“In evaluating a request for a missing witness instruction, the trial court should consider — from the viewpoint of trial preparation — whether a particular witness would provide testimony which would be superior to that which counsel anticipates from other witnesses as well as testimony which would be noncumulative and nonduplicative.” Cooper, 415 A.2d at 534 .

2003“Unless it can be established that the witness in question would provide new or additional evidence or would be manifestly more credible [than other witnesses who testified], we risk considerable unfairness by using the missing witness instruction to create adverse evidence from a party’s decision not to call that witness.” Id.

1987The Supreme Court first articulated the missing witness rule in Graves v. United States, 150 U.S. 118, 121 , 14 S.Ct. 40, 41 , 37 L.Ed. 1021 (1893), when it declared that “if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.” Recently in Lawson v. United States, 514 A.2d 787, 789 (D.C.1986), we reiterated the “requirements that must be met by a party seeking to employ a missing witness argument under the prerequisites set

1987The Supreme Court first articulated the missing witness rule in Graves v. United States, 150 U.S. 118, 121 , 14 S.Ct. 40, 41 , 37 L.Ed. 1021 (1893), when it declared that “if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.” Recently in Lawson v. United States, 514 A.2d 787, 789 (D.C.1986), we reiterated the “requirements that must be met by a party seeking to employ a missing witness argument under the prerequisites set

1992For example, in Burgess v. United States, 142 U.S.App.D.C. 198, 207 , 440 F.2d 226, 235 (1970), the court drew a distinction between a missing witness argument and a missing witness instruction: Argument of counsel is on quite a different legal level from an instruction of the court granting to the jury the right to draw the inference of unfavorable testimony.

1992For example, in Burgess v. United States, 142 U.S.App.D.C. 198, 207 , 440 F.2d 226, 235 (1970), the court drew a distinction between a missing witness argument and a missing witness instruction: Argument of counsel is on quite a different legal level from an instruction of the court granting to the jury the right to draw the inference of unfavorable testimony.

1986Dent v. United States, supra, 404 A.2d at 170 ; Conyers v. United States, 309 A.2d 309, 312-313 (D.C.1973).

1980For these reasons, we conclude that, despite the missing witness instruction, the jury’s “judgment was not substantially swayed by the error” and we are not “left in grave doubt” about “whether the error itself had substantial influence” on the final verdict, Conyers v. United States, D.C.App., 309 A.2d 309, 313-14 (1973) quoting Kotteakos .

1981To curtail this and other potentially prejudicial ramifications of the missing witness doctrine, 2 courts carefully restrict application of the doctrine “to situations where it is ‘peculiarly within’ the party’s ‘power to produce’ the witness and where, as well, the witness’ testimony ‘would elucidate the transaction.’ ” Wynn v. United States, 130 U.S.App.D.C. 60, 64 , 397 F.2d 621, 625 (1967) (footnotes omitted); accord, Cooper v. United States, supra at 533; Dent v. United States, supra at 169-70.

1981To curtail this and other potentially prejudicial ramifications of the missing witness doctrine, [2] courts carefully restrict application of the doctrine "to situations where it is `peculiarly within' the party's `power to produce' the witness and where, as well, the witness' testimony `would elucidate the transaction.'" Wynn v. United States, 130 U.S.App.D.C. 60, 64 , 397 F.2d 621, 625 (1967) (footnotes omitted); accord, Cooper v. United States, supra at 533; Dent v. United States, supra at 169-70.

1995E.g., Ray v. United States, 616 A.2d 333 (D.C.1992); Miles, supra; Thomas, supra. While the trial judge was engaging in a bit of loose language in the colloquy, he then went on to apply requirements of this court’s opinions to defense requests for a missing witness instruction, stating “You have the permission 'you need under the Court of Appeals decision to make that argument [to the jury].” (Emphasis added.) The trial judge then made a crucial finding that “it’s not peculiarly within the power of the government to have produced this witness.” This constituted another application of this cour

1995E.g., Ray v. United States, 616 A.2d 333 (D.C.1992); Miles, supra; Thomas, supra. While the trial judge was engaging in a bit of loose language in the colloquy, he then went on to apply requirements of this court’s opinions to defense requests for a missing witness instruction, stating “You have the permission 'you need under the Court of Appeals decision to make that argument [to the jury].” (Emphasis added.) The trial judge then made a crucial finding that “it’s not peculiarly within the power of the government to have produced this witness.” This constituted another application of this cour

1982Coombs v. United States, supra at 1318; Haynes v. United States, D.C.App., 318 A.2d 901, 903 (1974).

1976The instructional issues raised do not constitute error: (1) the court did not err in refusing to give the missing witness instruction where the evidence showed that the witness was a friend of appellant and equally available to both sides, Haynes v. United States, D.C.App., 318 A.2d 901 (1974); Smith v. United States, D.C.App., 315 A.2d 163 (1974); and (2) the court did not err in denying the instruction in the defense of intoxication as the inability to form intent is not a defense to possession of narcotics implements, McKoy v. United States, D.C.App., 263 A.2d 645 (1970).

2006Thomas v. United States, 447 A.2d 52, 58 (D.C.1982). “[I]t seldom will constitute error to deny the missing witness instruction or to prohibit argument of the missing witness inference.” Stager v. Schneider, 494 A.2d 1307, 1313 (D.C.1985).

2003Seeking to discourage excessive invocation of the inference, we have said that "it seldom will constitute error to deny the missing witness instruction or to prohibit argument of the missing witness inference." Stager v. Schneider, 494 A.2d 1307, 1313 (D.C.1985). "[I]t is less likely that we will find an abuse of discretion where the trial court refuses to give a missing witness instruction and permit a missing witness argument, than where its ruling is to the contra." Lawson v. United States, 514 A.2d 787, 790 (D.C.1986). 5 .

2003Seeking to discourage excessive invocation of the inference, we have said that "it seldom will constitute error to deny the missing witness instruction or to prohibit argument of the missing witness inference." Stager v. Schneider, 494 A.2d 1307, 1313 (D.C.1985). "[I]t is less likely that we will find an abuse of discretion where the trial court refuses to give a missing witness instruction and permit a missing witness argument, than where its ruling is to the contra." Lawson v. United States, 514 A.2d 787, 790 (D.C.1986). 5 .

1995Before a court may allow a missing witness instruction or “inference “the court must determine (1) that the witness in question is peculiarly available to the party against whom the inference is sought, and (2) that the witness’ testimony would have elucidated the transaction at issue.” Lawson v. United States, 514 A.2d 787, 789 (D.C.1986).

1992See Jones v. United States, 343 A.2d 346, 352 (D.C.1975), suggesting “a variant of the so-called missing witness instruction,” and citing United States v. Bundy, 153 U.S.App.D.C. 191, 194 , 472 F.2d 1266, 1269 (1972) (Leventhal, J., concurring).

1992See Jones v. United States, 343 A.2d 346, 352 (D.C.1975), suggesting “a variant of the so-called missing witness instruction,” and citing United States v. Bundy, 153 U.S.App.D.C. 191, 194 , 472 F.2d 1266, 1269 (1972) (Leventhal, J., concurring).

1992See Jones v. United States, 343 A.2d 346, 352 (D.C.1975), suggesting “a variant of the so-called missing witness instruction,” and citing United States v. Bundy, 153 U.S.App.D.C. 191, 194 , 472 F.2d 1266, 1269 (1972) (Leventhal, J., concurring).

1978As to the logic of Judge Leventhal's suggestion in Bundy , [2] it was accepted by this court in Jones v. United States, D.C.App., 343 A.2d 346, 352 (1975), where we said: Consequently, we think that in a proper case arising in the future the trial judge may in lieu of any other sanction charge the jury with a variant of the so-called missing witness instruction.

1979It was therefore error to give the missing witness instruction. 9 See Brown v. United States, supra, 134 U.S.App.D.C. at 271-72 , 414 F.2d at 1167-68 ; Wynn v. United States, 130 U.S.App.D.C. 60 , 64-65 & n. 23, 397 F.2d 621 , 625-26 & n. 23 (1967).

1979It was therefore error to give the missing witness instruction. 9 See Brown v. United States, supra, 134 U.S.App.D.C. at 271-72 , 414 F.2d at 1167-68 ; Wynn v. United States, 130 U.S.App.D.C. 60 , 64-65 & n. 23, 397 F.2d 621 , 625-26 & n. 23 (1967).

1989Appellant cites numerous cases dealing with the missing witness instruction, e.g., Coombs v. United States, 399 A.2d 1313, 1316 (D.C.1979), as well as arguments concerning missing witnesses, e.g., Arnold v. United States, 511 A.2d 399, 415-16 (D.C.1986); Parks v. United States, 451 A.2d 591, 614 (D.C.1982); Thomas v. United States, 447 A.2d 52, 58 (D.C.1982).

1980To give the missing witness instruction in such a situation, and allow the jury to draw the inference that Ms. Jackson’s testimony would have been adverse to appellant, “would place an intolerable burden on a defendant,” Coombs v. United States, D.C.App., 399 A.2d 1313, 1318 (1979), by “in effect creatpng] evidence from nonevi-dence,” and “addpng] a fictitious weight to one side of the case.” Dent v. United States, supra at 170-171.

1981On these facts the “inference of unfavorable testimony [was found] a natural and reasonable one,” id. (quoting United States v. Young, supra at 107, 463 F.2d at 943 ), and the giving of the missing witness instruction was not error.

1981On these facts the "inference of unfavorable testimony [was found] a natural and reasonable one," id. (quoting United States v. Young, supra at 107, 463 F.2d at 943 ), and the giving of the missing witness instruction was not error.

2003A. “It has been recognized for almost a century that ‘if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.’ ” Harris v. United States, 602 A.2d 154, 160 (D.C.1992) (en banc) (quoting Graves v. United States, 150 U.S. 118, 121 , 14 S.Ct. 40 , 37 L.Ed. 1021 (1893)).

1995E.g., Harris, supra, 602 A.2d at 162-63 ; Lemon v. United States, 564 A.2d 1368, 1375 (D.C.1989); Miles, supra, 483 A.2d at 658 .

2000App. 194 , 676 A.2d 992, 1005 (1996) (State’s unrelenting questioning of witness in presence of jury prejudiced defendant even though witness asserted invalid claim of spousal immunity); United States v. MacCloskey, 682 F.2d 468 , 478 n. 19 (4th Cir.1982) (“We think that the best procedure to follow after a witness has improperly invoked the Fifth Amendment or any privilege in such a situation, is to issue an order, outside of the jury’s presence, directing him to testify and admonishing him that his continued refusal to testify would be punishable by contempt.”) (citations omitted); cf. Morri

1978After appellant’s counsel sought unsuccessfully to convince the government (or the trial court sua sponte) to extend immunity to Burton, he finally asked the court to give a missing witness instruc *314 tion. 10 The same argument which appellant makes here was rejected in Morrison v. United States, 124 U.S.App.D.C. 330 , 333, 365 F.2d 521, 524 (1966), in which the court stated: Where a Fifth Amendment testimonial claim has been invoked by a witness and granted, the Government’s refusal to grant him immunity in order to permit him to testify does not give rise to a missing witness instruction.

1995See, e.g., Brown v. United States, 555 A.2d 1034, 1036 (D.C.1989).

1989As this court recently stated in Brown v. United States, 555 A.2d 1034, 1037 (D.C.1989), in reiterating that the missing witness doctrine should be applied with caution: if a lawyer in preparation for trial discovers that a possible witness, because of a prior criminal record or unpleasant personal characteristics, would be an embarrassment, his failure to call him should not result in a prejudicial ruling against his client.

1982Having concluded that it was error for the trial court to give the missing witness instruction, we must determine whether it was harmless error under Kotteakos v. United States, 328 U.S. 750, 765 , 66 S.Ct. 1239, 1248 , 90 L.Ed. 1557 (1946). 4 We have previously held that where the missing witness instruction was erroneously given or the doctrine erroneously argued by the prosecution, and the credibility of the defendant was crucial to his case, the error was prejudicial and mandated reversal.

1982Having concluded that it was error for the trial court to give the missing witness instruction, we must determine whether it was harmless error under Kotteakos v. United States, 328 U.S. 750, 765 , 66 S.Ct. 1239, 1248 , 90 L.Ed. 1557 (1946). 4 We have previously held that where the missing witness instruction was erroneously given or the doctrine erroneously argued by the prosecution, and the credibility of the defendant was crucial to his case, the error was prejudicial and mandated reversal.

2003Id. at 171 .

1992See Dent v. United States, 404 A.2d 165, 169-70 (D.C.1979).

1987We have held that it is error to give a missing witness instruction “absent articulated consideration by the trial judge.” Simmons v. United States, supra, 444 A.2d at 964-65 .

1985In Simmons , which treated the propriety of the missing witness instruction given rather than prosecutorial commentary, contrary to appellant’s reading, defense counsel did object to the missing witness instruction given, supra, 444 A.2d at 963 , therefore warranting the harmless error standard of review. .

1980Cf. Anderson v. United States, D.C.App., 352 A.2d 392, 394 (1976) (trial court properly denied defense-requested instruction; testimony of missing government witness would be merely cumulative).

1978Anderson v. United States, D.C.App., 352 A.2d 392 , 394 n.4 (1976), citing Brown v. United States, 134 U.S.App.D.C. 269 , 270-71 n.2, 414 F.2d 1165 , 1166-67 n.2 (1969); Morton v. United States, 79 U.S.App.D.C. 329, 332 , 147 F.2d 28, 31 , cert. denied, 324 *13 U.S. 875, 65 S.Ct. 1015 , 89 L.Ed. 1428 (1945); 2 Wigmore, Evidence § 287 (3d ed. 1940).

2001We are satisfied that the trial court correctly concluded that "the peculiar availability of Miles to the government ... was not shown.” See Ray v. United States, 616 A.2d 333, 334 (D.C.1992) (detailing the legal principles governing the decision whether to give a missing witness instruction).

2001We are satisfied that the trial court correctly concluded that "the peculiar availability of Miles to the government ... was not shown." See Ray v. United States, 616 A.2d 333, 334 (D.C.1992) (detailing the legal principles governing the decision whether to give a missing witness instruction).

1995That relationship alone cannot justify the missing witness instruction, at least without further exploration.” Carr, supra, 531 A.2d at 1014 .

1995That relationship alone cannot justify the missing witness instruction, at least without further exploration.” Carr, supra, 531 A.2d at 1014 .