An issue that often arises at trial is what, if any, are the applicable rules where a party fails to call a witness with material knowledge of the case. In such a scenario, two issues arise: (1) whether counsel can obtain a jury charge regarding the failure to call a witness; and (2) whether counsel can comment in summation regarding the nonproduction.
The missing-witness inference, as recently addressed by the Appellate Division in Washington v. Perez, 430 N.J. Super. 121, 128 (App. Div. 2013), provides a mechanism by which an adverse party may obtain a jury instruction or adverse inference where a party fails to call a witness who would “elucidate relevant and critical facts in issue[.]”
The New Jersey Supreme Court first addressed the inference that may arise under such circumstances in State v. Clawans, 38 N.J. 162, 170 (1962). In Clawans, the defendant requested that the court instruct the jury that it could infer from the state’s failure to call two allegedly corroborating witnesses that the witnesses’ testimony would have been against the state’s interest. The trial court denied the defendant’s request, and the Supreme Court considered whether any inference might be drawn from the nonproduction. The Clawans court concluded that the failure to call a witness may give rise to a “natural inference that the party so failing fears exposure of those facts [that] would be unfavorable[.]” In order for such inference to be drawn, however, “it must appear that the person was within the power of the party to produce and that [the witness’s] testimony would have been superior to that already utilized in respect to the fact to be proved.”