ARTICLE: REVISITING THE MISSING WITNESS INFERENCE -- QUIETING THE LOUD VOICE FROM THE EMPTY CHAIR Skip over navigation
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Copyright (c) 1985 University of Maryland School of Law
Maryland Law Review

ARTICLE: REVISITING THE MISSING WITNESS INFERENCE -- QUIETING THE LOUD VOICE FROM THE EMPTY CHAIR

Fall, 1985

44 Md. L. Rev. 137

Author

ROBERT H. STIER, JR. *

Excerpt

The situation is one of the oldest and most common in trial practice: One party fails to call a witness whose testimony evidently could help illuminate a material issue for the jury. How should the trial court control argument about the missing witness, and how should it instruct the jury about the significance of the witness' absence? Typically, courts invoke a venerable but confusing doctrine that has been subject to little critical scrutiny, despite its frequent appearance in both civil and criminal cases. In this Article, I hope to supply a fresh perspective on the traditional missing witness inference.

The doctrine that has evolved over time to handle the missing witness problem is sometimes called the "empty chair doctrine," because it holds that "a litigant's failure to produce an available witness who might be expected to testify in support of the litigant's case, permits the factfinder to draw the inference that had the witness chair been occupied, the witness would have testified adversely to the litigant." 1

The empty chair doctrine is easier to state than to apply. Evidentiary puzzles arise from the many circumstances in which the doctrine might be invoked. What argument should the court permit when one of the parties to a traffic accident fails to call a relative who was a passenger in a car or truck at the time of the collision? Does it make a difference if the "missing witness" was in the courtroom throughout the trial? Must the court allow ...
 
 
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