Under the missing witness doctrine, if a person who could have been called to testify is not, the jury may infer that person’s testimony would have been unfavorable to the party who naturally would have called him or her. This doctrine and the associated jury instruction can be highly detrimental to a case, and are therefore to be used sparingly, particularly in the case of a criminal defendant. There are therefore requirements and limitations to when they apply.
The Washington Court of Appeals recently considered the application of the missing witness jury instruction in State v. Houser . A woman called 911 after the defendant knocked on her door at about 9 p.m. with a swollen lip and bloody nose. He told the woman’s husband that his car was in a ditch about a mile away. The defendant later told the state trooper he had some beers that night and drove off the road and struck a pole. After a field sobriety test indicated impairment and he was arrested, the defendant said he was not driving and that his “buddy” had been the driver.
The defendant was charged with felony DUI. The defendant testified he was waiting in his truck outside his friends’ house when he saw an old friend he had not seen in many years. The two decided to get some marijuana, with the friend driving the defendant’s truck because the defendant had been drinking. Afterward, they were on their way to another friend’s house when the accident occurred. The defendant testified his friend was driving at the time of the accident. He said he could not remember exiting the truck. He knew his friend did not stay in the truck, but did not know how he got out or where he went. He had not contacted the friend since the accident, had not tried to reach him, and did not know how to do so.
The State requested a missing witness jury instruction. The defendant objected. The trial court gave the instruction and let the State mention the missing witness in closing argument. The defendant was convicted and he appealed, arguing the instruction was improper.
There are a number of requirements that must be met before the missing witness instruction may be used. The instruction is inappropriate where the testimony of the witness would be self-incriminating. Washington law requires a driver of a vehicle involved in an accident to remain at the scene until he or she provides his name and address and renders reasonable assistance to any injured person. By corroborating the defendant’s testimony, the friend would be incriminating himself for failing to stay at the scene of the accident.
When the defendant objected, the trial court was obligated to make a careful inquiry into the applicability of the instruction. The trial court did not make such an inquiry. The appeals court noted that the instruction is premised upon a lack of reasonable explanation for the party’s failure to produce a reasonable witness, but that premise does not stand when the testimony would be self-incriminating. The incriminating nature of the testimony is a reasonable explanation for why the witness did not appear.
The State argued any error was harmless. In some circumstances, an erroneous jury instruction can be harmless error if the jury was instructed properly on the State’s burden and the error did not contribute to the verdict. The appeals court found that the defendant’s claim he was not driving the vehicle was the basis of his defense, and letting the prosecutor to mention the witness’s absence “substantially undercut” that defense. The appeals court found that there was sufficient evidence to support conviction, but not so much evidence of guilt that it could conclude that the missing witness instruction and references to the friend’s absence were harmless. The appeals court reversed and remanded the case.
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