Witnesses and victims often fail to appear on the day of trial.
If this happens in your case, you can ask the judge to give the missing witness instruction to the jury.
The instruction “permits the jury…to inter that the uncalled witness would have given testimony unfavorable to the party that could have, but did not, call that witness.” See Commonwealth v. Wilkerson, 486 Mass. 159, 177 (2020).
The missing witness instruction may be used
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 that person as a witness. (Citations and quotations omitted.) Wilkerson, 486 Mass. at 177.
If you seek to have the instruction read to jurors, you must first convince the trial judge that it is appropriate.
According to the Appeals Court,
In order to determine whether there has been a sufficient foundation for a missing witness instruction, we look at (1) whether the case against the defendant is [so strong that,] faced with the evidence, the defendant would be likely to call the missing witness if innocent; (2) whether the evidence to be given by the missing witness is important, central to the case, or just collateral or cumulative; (3) whether the party who fails to call the witness has superior knowledge of the whereabouts of the witness; and (4) whether the party has a “plausible reason” for not producing the witness. Commonwealth v. Barrett, 97 Mass. App. Ct. 437, 445 (2020).
If the trial judge refuses to give the instruction, his decision will not be reversed on appeal unless it is “manifestly unreasonable. Wilkerson, 486 Mass. at 177.