This may sound odd. But prosecutors often struggle to get witnesses and victims to appear on the day of trial.
If the prosecutor fails to call one of its witnesses at trial, defense counsel can ask the judge to provide jurors with a “missing witness instruction.”
The applicable case law is found in Commonwealth v. Saletineo. In that ruling, the SJC wrote
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. (Citations and quotations omitted.)
According to the Saletino opinion, a missing witness instruction permits jurors to
infer that the [missing witness], had he been called, would have given testimony unfavorable to [the Commonwealth].
When defense counsel moves for such an instruction, he must meet certain “foundational requisites”: Defense counsel must show that
- the missing witness was in fact available;
- the missing witness’s testimony is important;
- the missing witness’s testimony could not be provided by another source;
- the missing witness was not equally available to defense counsel.
Even when defense counsel meets all of the listed requisites, the trial judge can still refuse to give the requested instruction. According to the SJC in Commonwealth v. Anderson,
the trial judge has discretion to refuse to give the [missing witness] instruction . . . and, conversely, a party who wishes the instruction cannot require it of right. (Citations and quotations omitted.)
For a copy of the “Absent Witness” instruction, click the document below.