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4.13 Missing Witness

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4.13 MISSING WITNESS

Comment

"A missing witness instruction is proper only if from all the circumstances an inference of unfavorable testimony from an absent witness is a natural and reasonable one." United States v. Bramble, 680 F.2d 590, 592 (9th Cir.1982). The court has the discretion to give a missing witness instruction or to leave the matter to the argument of counsel. See United States v. Kojayan, 8 F.3d 1315, 1317 n.2, 1320-21 (9th Cir.1993).

"A missing witness instruction is appropriate if two requirements are met: (1) ‘[t]he party seeking the instruction must show that the witness is peculiarly within the power of the other party’ and (2) ‘under the circumstances, an inference of unfavorable testimony [against the non-moving party] from an absent witness is a natural and reasonable one.’" United States v. Ramirez, 714 F.3d 1134, 1137 (9th Cir.2013) (quoting United States v. Leal-Del Carmen, 697 F.3d 964, 974-75 (9th Cir.2013)). It was reversible error to deny a missing witness instruction when an alien witness was deported to Mexico by the government, knowing that the witness would testify favorably for the defense. Leal-Del Carmen, 697 F.3d at 975. See generally United States v. Tisor, 96 F.3d 370, 377 n.3 (9th Cir.1996) (quoting, without approving, a missing witness instruction).

Even when a missing witness instruction is not given, a judge may not forbid a jury from drawing a negative inference from a party’s failure to call a witness. Ramirez, 714 F.3d at 1139 ("By instructing the jurors to disregard any uncertainty about why the prosecution didn’t call a witness—who might have been the key witness—the court improperly inserted itself into the jury room and interfered with the jury’s role as a factfinder.").

Approved 7/2013