Harris v. State

McDonald, J. In a criminal trial, the prosecutor asks the jury to draw various inferences from the evidence adverse to the defendant-the ultimate adverse inference being that the defendant is guilty as charged. In certain limited circumstances, one such adverse inference may be that the defendant's failure to call a witness peculiarly in the control of the defendant indicates that the witness would have testified unfavorably to the defendant. This is sometimes called the "missing witness rule." There is a related pattern jury instruction sometimes used by trial courts in Maryland known as the missing witness instruction. In that instruction, the trial court instructs the jury that, if a witness likely could have given important evidence in the case and it was peculiarly within the power of one party to produce that witness but the witness was not called and the individual's absence was not adequately explained, the jury may infer that the witness would have testified unfavorably to that party.

In a criminal prosecution, the State bears the burden of proof beyond a reasonable doubt on all elements of the crimes charged and a defendant has no obligation to testify, to call witnesses, or to produce evidence. When a trial court gives a missing witness instruction at the behest of the prosecution against the defendant, the court essentially endorses the particular inference that the prosecutor asks the jury to draw against the defendant. In our system of justice, this should rarely-if ever-be done, as it may be at odds with the constitutional principles that govern a criminal case. Even in the limited circumstances in which a prosecutor may legitimately urge the jury to draw an inference adverse to the defendant under the missing witness rule, there is no need for the court to endorse that element of the prosecutor's argument.

In this case, Petitioner Jerry Harris was charged with various offenses arising out a home invasion and robbery at an apartment in Baltimore City. None of the victims of the crime identified Mr. Harris as a participant in the robbery; the only evidence linking him to the crime was a latent fingerprint examination that matched prints found on pill bottles at the apartment to prints on file for his left hand, which had previously been disabled in an industrial accident. Mr. Harris testified that he had been at his mother's home on the night of the robbery, but his mother did not testify. At the suggestion of the trial court, the prosecutor requested a missing witness instruction that advised the jury that it could infer from the mother's absence that she would have testified unfavorably to Mr. Harris.

The trial court gave that instruction and, after a lengthy deliberation, the jury convicted Mr. Harris of some of the charges related to the robbery and acquitted him of others. We hold that it was error to give the missing witness instruction in this case and, for that reason, reverse Mr. Harris' convictions. I Background The Home Invasion and Robbery On the evening of January 16, 2014, Gale Binko and Alease Holmes were playing cards at the kitchen table in Ms. Binko's Baltimore City apartment. Lester Allen, who also lived in the apartment, and a woman known only as "Reds" 1 were also present.

Several pill bottles for Ms. Binko's prescriptions 2 and some cash lay on the table. Around 9:00 p.m., Reds decided to leave the apartment. At Ms. Binko's request, Mr. Allen accompanied Reds to the door. When they opened the front door, they were confronted by two masked men, one of whom had a gun.

Back in the kitchen, Ms. Binko heard some unfamiliar voices interspersed with Mr. Allen's voice. She heard Reds say "[T]hey got a gun." Reds and Mr. Allen then returned to the kitchen accompanied by the two masked men. The man with the gun was holding it to Mr. Allen's head. The second masked man, who was called "Black" by the masked man with the gun, grabbed approximately $350 from the kitchen table in front of Ms. Binko.

Black then opened Ms. Binko's blouse, groped her, and pulled out a bottle of Oxycodone pills that was concealed in her blouse. The masked man holding the gun to Mr. Allen's head then directed Black to check Ms. Binko's socks. Black removed Ms. Binko's shoes, but Ms. Binko began to fight back. At one point during the struggle, Black's mask came off, giving Ms. Binko a glimpse of his face.

She described him as a tall, stout, black man with a dark complexion and a mustache. She was not sure whether he had a beard. Ms. Binko testified that Black used both of his hands when he searched her blouse, pulled off her shoes, and struggled with her. While Ms. Binko was engaged with the two intruders, Ms. Holmes and Reds fled through a back door.

After subduing Ms. Binko, Black picked up and examined each of the three pill bottles on the kitchen table. Then he and the man with the gun left the apartment through the back door. The Investigation After the robbers left, Ms. Binko called 9-1-1. The police responded to the apartment within five minutes.

Ms. Holmes returned to the apartment shortly thereafter, although Reds did not. Detective Franklin Gaskins interviewed Ms. Binko, Ms. Holmes, and Mr. Allen. The police were never able to locate or identify Reds. Ms. Binko was unable to make an identification of the robbers because, she later testified, she was "upset and afraid." Detective Gaskins summoned the crime lab to the apartment.

A crime lab technician lifted two prints from a large prescription bottle and one from a small prescription bottle on the kitchen table. A latent print examiner at the Police Department lab later analyzed the lifted prints. The examiner determined that the three prints matched impressions on file of Mr. Harris' left thumb, index finger, and middle finger. 3 Detective Gaskins then took a photograph of Mr. Harris to Ms. Binko's home to display to Ms. Binko. She told the detective that she did not know Mr. Harris, that he had not been to her home, and that there was no reason for him to have handled her pill bottles.

Neither Ms. Holmes nor Mr. Allen, who also testified at trial, identified Mr. Harris as one of the robbers. Based on the fingerprint identification, Detective Gaskins obtained an arrest warrant for Mr. Harris. Following Mr. Harris' arrest in February 2014, Detective Gaskins attempted to interview him. Police Interview of Mr. Harris At trial, the prosecutor asked Detective Gaskins about his attempt to interview Mr. Harris following his arrest.

The prosecutor asked the detective what occurred during that interview, defense counsel objected, and the following bench conference ensued: Court: There's nothing wrong with the question. I don't know what the answer is going to be. Meaning, if his answer is, he said, then we could get into this. It could be, I observed him crying.

And then that's fine. Do you know what I mean? So I don't know where this is going. Defense Counsel: Well, what actually occurred was that he started to sign a waiver of rights form, and then asked them if he was being charged with armed robbery.

And they said yes. And he says, well, I'm not talking, you know, I want to talk to my lawyer. And he refused to sign the rest of the statement. So I think that he has a fifth amendment privilege not to incriminate himself and that, you know, his refusal to talk to police shouldn't be admissible as proof of guilt.

Court: I don't know if the problem is his refusal to talk to police. I think the problem for him more is the fact that he knew what he was being charged with before they charged him. I mean, if you're an innocent man and you're brought in, how would you have said, are you charging me with armed robbery? I mean, how would you pick that out of the air?

Defense Counsel: I don't know. Maybe they told him or something. Maybe that's what he heard, because they had already executed a search warrant at his estranged wife's house, and they had already executed a search warrant at his mother's house where he lived. Court: Okay.

Defense Counsel: So obviously they had to leave copies of both search warrants there. Court: Okay. Okay. Fair enough.

And why do you think that his refusal to speak to the police is indication of his guilt? Why do you think they would take it that way? Defense Counsel: Because it's been my experience. Court: That?

Defense Counsel: That juries don't like when people refuse to talk to the police. Court: [Prosecutor]? Prosecutor: Innocent people refuse to talk to the police too. The jury has already been given the instruction as far as, you know, (inaudible).

Court: I think it's factual. He didn't want to talk. It's not hearsay. I don't think it's highly prejudicial.

And I think that you could definitely rehabilitate it, you know, into any level of prejudice that you think it might cause. The objection's overruled. After counsel returned to the trial tables, the court advised the detective that he could answer the question and the detective provided the following response: Detective Gaskins: Mr. Harris provided us with a false address, denied any involvement with the robbery, and then I believe he requested an attorney. 4 The prosecutor then moved on to another topic. Defense counsel did not cross-examine the detective concerning the interview.

Mr. Harris' invocation of his right to counsel during the police interview was not mentioned in either testimony or argument during the remainder of the trial. Searches of the Homes of Mr. Harris' Wife and of his Mother Detective Gaskins obtained a search warrant for the address that Mr. Harris provided during his police interview. The address turned out to be not a false address, but rather a former address. The woman who lived there-and whom Mr. Harris later identified as his wife 5 -told the police that Mr. Harris had not stayed there for some time and gave them the address of Mr. Harris' mother, Barbara Fallin, where she believed that Mr. Harris had been staying.

When the police went to Ms. Fallin's address, Ms. Fallin consented to a search of the portion of the house where Mr. Harris kept belongings, but said that she had not seen him for a couple weeks, as she had asked him to leave the house. According to Detective Gaskins, no evidence was recovered in the search of either location. The Defense Case In his opening statement, defense counsel indicated that he was planning to call Ms. Fallin as an alibi witness on Mr. Harris' behalf. Defense counsel told the jury that Ms. Fallin would testify that Mr. Harris was at her house the entire night on the date of the robbery.

After the State rested its case, Mr. Harris, rather than Ms. Fallin, testified in his defense. Mr. Harris testified that his left arm had been amputated "mid-arm" as a result of a work accident in 2004. 6 Doctors were able to re-attach the arm, and he underwent multiple surgeries and physical therapy. Mr. Harris explained that he had regained feeling in his hand, but he was not able to grasp items or use his hand in the same manner as before the accident. Mr. Harris testified that he was right-handed, and that he had adapted to performing daily activities with one hand.

He said that he had to use his right hand to put items in his left hand. Mr. Harris testified that in late 2013 he had separated from his wife and moved in with his mother, where he was still living on January 16, 2014-the day of the robbery at Ms. Binko's apartment. Mr. Harris said that he did not know Ms. Binko, Ms. Holmes, Mr. Allen, or Reds. He denied robbing Ms. Binko or participating in a home invasion of her apartment.

Mr. Harris said that he spent that day at his mother's house, that she was home with him the whole day, and that no one else was with them at the time of the robbery. Mr. Harris denied that he had given Detective Gaskins a false address when he told him the address where he had lived with his wife. Mr. Harris did not call Ms. Fallin to testify at the trial; nor did the State call her as a rebuttal witness. 7 Jury Instruction Conference After the defense rested, the Circuit Court met with counsel to discuss the jury instructions. As had been earlier suggested by the Circuit Court, 8 defense counsel had requested a missing witness instruction related to the State's failure to call Reds as a witness.

The Circuit Court then suggested that the State would also seek its own missing witness instruction with respect to the failure of the defendant to call Ms. Fallin as a witness. The State opposed a missing witness instruction as to Reds, arguing that nobody had been able to locate or identify her and thus she was equally unavailable to both parties. 9 Defense counsel ultimately withdrew his request for that instruction. The State then adopted the Circuit Court's suggestion and requested a missing witness instruction relating to the absence of Ms. Fallin. Defense counsel objected, arguing that the State had never requested a subpoena for Ms. Fallin and that there were reasons for her absence that were not relevant to the trial.

The following colloquy took place: Court: Okay. Okay. If a witness could have given important testimony in issue with this case-and I imagine an alibi would be considered important testimony-and if the witness was peculiarly in the power of the defendant to produce-which she was, it's his mother-but was not called as a witness by the defendant, and the absence of that witness was not sufficiently accounted for or explained-which it was not-then you may decide that-I mean, how is this not applicable? Defense Counsel: Because it's not peculiarly within his power.

He's in jail. He doesn't have the power to do anything. Court: Right. You are acting as his agent, [defense counsel].

Defense Counsel: True. Court: Okay. So you had the ability to either bring her here or subpoena her here as an alibi witness. The objection is overruled. [Criminal Pattern Jury Instruction] 3.29 missing witness instruction is being read.

Defense counsel then argued that the instruction improperly shifted the burden of proof to the defendant to produce evidence. The Circuit Court agreed that the instruction would be improper if Mr. Harris had chosen not to testify himself, but reasoned that, because he had testified, the jury could consider his failure to call Ms. Fallin as a witness in assessing the credibility of his own testimony. Jury Instructions and Closing Argument Consistent with its ruling during the jury instruction conference, when the Circuit Court instructed the jury on the law, it included the following missing witness instruction: You have heard testimony about Barbara Fallin, who was not called as a witness in this case. If a witness could have given important testimony on an issue in this case, and the witness was peculiarly within the power of the defendant to produce but was not called as a witness by the defendant, and the action 10 of that witness was not sufficiently accounted for or explained, then you may decide that the testimony of that witness would have been unfavorable to the defendant.

During the State's closing argument, the prosecutor referred to Ms. Fallin's absence and urged the jury to draw an inference adverse to Mr. Harris. The prosecutor reminded the jury that defense counsel had identified her as an alibi witness in opening statement, but had not called her during the defense case and asked rhetorically "Where is his mother?" The prosecutor returned to that theme later in his argument, asking: "Who can attest to the defendant's whereabouts, other than the defendant?" In response, defense counsel acknowledged Ms. Fallin's absence, but contended that the jury should not draw an adverse inference against Mr. Harris because a "person not testifying is non-evidence." In the State's rebuttal argument, the prosecutor twice returned to the absence of Ms. Fallin. He reiterated his question "Where is his mother?" and also reminded the jurors that "[t]he judge has instructed you ... that ... you can draw a reasonable inference to the fact that her testimony would have possibly been unfavorable to this defendant." Neither the prosecutor nor defense counsel referred in their arguments to Detective Gaskins' testimony that Mr. Harris had invoked his right to an attorney during his police interview. Verdict and Appeal The jury found Mr. Harris guilty of second degree assault against Mr. Allen; and conspiracy to commit robbery with a dangerous weapon, robbery, conspiracy to commit robbery, conspiracy to commit first-degree assault, second-degree assault, conspiracy to commit second-degree assault, theft less than $1,000, and conspiracy to commit theft less than $1,000, all against Ms. Binko.

The jury acquitted him of six assault charges, robbery with a dangerous weapon, and use of a firearm in the commission of a felony or crime of violence. The Circuit Court later sentenced Mr. Harris to an aggregate 10-year sentence. Mr. Harris appealed. In an unreported opinion, the Court of Special Appeals affirmed the convictions. 11 Harris v. State , No. 484, 2017 WL 168446 (Md. Ct. Spec.

App. Jan. 17, 2017) (unreported). The intermediate appellate court held that the Circuit Court erred when it permitted Detective Gaskins to testify that Mr. Harris had requested an attorney. But the court concluded that, in light of the fingerprint evidence linking Mr. Harris to the crime, the error was harmless beyond a reasonable because it was a "brief remark," and there had been no further reference to it in testimony or argument during the remainder of the trial. Id. at ⁵.

The Court of Special Appeals also found that the trial court did not abuse its discretion when it gave the missing witness instruction. It reasoned that there was a sufficient factual basis to support the conclusion that Ms. Fallin's relationship with Mr. Harris rendered her testimony unavailable to the State as a practical matter and peculiarly within Mr. Harris' control. Thus, his failure to call her as a witness would support an inference that her testimony would be unfavorable to him. Id. at ¹¹-12.

Judge Nazarian dissented from that holding. He would have held that the Circuit Court abused its discretion when it gave the missing witness instruction and that, together with the erroneous admission of testimony concerning Mr. Harris' invocation of his right to counsel, that error required reversal of the conviction. Id. at ¹⁵. We granted certiorari to consider the following issues: (1) Whether the Circuit Court abused its discretion when it gave a missing witness instruction advising the jury that it could draw an inference adverse to Mr. Harris based on his failure to call his mother as a witness.

(2) Whether it was a harmless error when the Circuit Court permitted Detective Gaskins to testify that Mr. Harris had invoked his right to counsel during a custodial interview. For the reasons set forth below, we hold that the Circuit Court should not have given the missing witness instruction under the circumstances of this case. Because we reverse Mr. Harris' convictions for that reason, and remand the case for a new trial, we need not address whether the erroneous reference to his invocation of his right to counsel was harmless. II The Missing Witness Rule A. Genesis of the Missing Witness Rule Although technically not a rule, the concept known as the "missing witness rule" 12 refers to the permissible inference that a factfinder may draw from the absence of a potential witness who might have knowledge of facts at issue in the case.

If the factfinder determines that the witness is "peculiarly available" to one party, the absence of the witness is ascribed to that party. The factfinder is then permitted to infer that the party did not call the witness because whatever testimony that individual would have given would be unfavorable to that party. Although there are common law antecedents for the doctrine, the current understanding of the missing witness rule is often traced to a Supreme Court case from the late nineteenth century. Graves v. United States , 150 U.S. 118 , 14 S.Ct. 40 , 37 L.Ed. 1021 (1893). 13 That case concerned the propriety of a prosecutor's closing argument to the jury in a criminal case.

In that argument, the prosecutor suggested that the absence of the defendant's wife from the trial undermined his alibi defense to a murder charge, although other witnesses had testified in support of the alibi. The Court summarized succinctly the missing witness rule: The rule, even in criminal cases, is that, if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable. 150 U.S. at 121 , 14 S.Ct. 40 . 14 While the Supreme Court referred to the missing witness rule as a "presumption" in Graves , most courts have treated it as a permissible inference rather than a presumption. 15 In the years since the Graves decision, developments in constitutional law, changes in the rules of evidence and discovery, and questions concerning the accuracy of the adverse inference promoted by the missing witness rule have seriously weakened its viability-at least in the context of criminal case in which the inference is to be taken against the defendant. In addition, courts have expressed concerns when the missing witness rule appears not only in a party's argument, but is also endorsed in a court's jury instruction. In this case we are primarily concerned with the missing witness rule as it appears in a jury instruction given by the trial court.

B. Missing Witness Instruction in a Criminal Case A trial court's jury instructions in a criminal case serve a number of purposes. They provide the jury with general guidelines on how to carry out its duties as factfinder ( e.g. , burden of proof, presumption of innocence, what is and is not evidence). They outline the law concerning the particular charges in the case and what elements must be proven for the jury to reach a guilty verdict. They may, as appropriate, provide guidance to the jury on how to evaluate particular types of evidence or testimony ( e.g. , expert testimony, impeachment evidence, other crimes evidence).

A missing witness instruction calls the jury's attention to the absence of evidence ( i.e. , the imagined testimony of the missing witness), allows the jury to attribute that absence to one of the parties, and permits the jury to draw a negative inference against that party for failing to produce that evidence. A missing witness instruction adverse to a defendant is a rare instance where the trial court endorses an evidentiary inference promoted by the prosecution-an inference based not on evidence or the conduct of the defendant, but on the failure of the defendant to produce evidence. Of course, the jury has little or no basis for assessing the credibility of the imagined testimony of the absent witness. In that the instruction concerns the weight to be given to potential evidence that the jury did not hear, it is a cousin of the disfavored "anti-CSI effect" instruction, which also concerns evidence that theoretically might have been presented to the jury but was not. 16 1.

Constitutional Considerations In many criminal cases, the ultimate "missing witness" may be the defendant, if the defendant elects not to testify. At the time of the Graves decision, a version of a missing witness instruction could be given in many jurisdictions as to the failure of a defendant to testify. For example, in Griffin v. California , 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965), a California trial court gave the following instruction to the jury in a murder case-an instruction endorsed by the California constitution: As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify ... the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable. 380 U.S. at 610 , 85 S.Ct. 1229 . In closing argument, the prosecutor in Griffin also emphasized the adverse inference to be drawn from the defendant's failure to testify.

As is well known, that case found its way to the Supreme Court where the Court held that the prosecutor's argument and the trial court's instruction violated the self-incrimination clause of the Fifth Amendment-a holding that would apply not only in federal courts, but also in state courts by virtue of the Court's then-recent decision in Malloy v. Hogan , 378 U.S. 1 , 84 S.Ct. 1489 , 12 L.Ed.2d 653 (1964). To the extent that a missing witness instruction appears to require a defendant to produce certain evidence or suffer adverse consequences, it is also in tension with the principle that the prosecution must prove each element of a charged criminal offense beyond a reasonable doubt. See In re Winship, 397 U.S. 358 , 364, 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970). In a jury instruction that most criminal litigators could recite in their sleep, a trial court typically instructs the jury that a defendant is presumed to be innocent, that the State bears the burden of proof beyond a reasonable doubt throughout the trial of a criminal case, and that the defendant has no obligation to call witnesses or to present evidence.

See, e.g., Maryland State Bar Association, Maryland Criminal Pattern Jury Instructions (2d ed. 2012), MPJI-Cr 2:02 (Presumption of Innocence and Reasonable Doubt); see also id., MPJI-Cr 3:17 (Election of Defendant Not to Testify). It has also been noted that, because the missing witness rule concerns an inference about the content of testimony from a witness who does not actually testify at trial, it may also implicate a defendant's right of confrontation under the Sixth Amendment of the United States Constitution. See Hayes v. State , 57 Md. App. 489 , 499-500, 470 A.2d 1301 (Bell, J.) cert. denied , 300 Md. 90 , 475 A.2d 1201 (1984). 2. Changes in Evidentiary and Discovery Rules Various common law doctrines have been associated with the reasoning underlying the missing witness rule.

However, changes in evidentiary and discovery rules have rendered those rationales less compelling. The missing witness rule was once linked to the common law "voucher rule." That was the concept that a party "vouched" for the credibility and veracity of the witnesses that the party called to the stand. See Walker v. State , 373 Md. 360 , 383-84, 818 A.2d 1078 (2003). Under the voucher rule, one might assume that the witnesses called by a party would be favorable to that party's position and that potential witnesses that the party does not call would be unfavorable.

See, e.g., State v. Tahair , 172 Vt. 101 , 772 A.2d 1079 , 1084 (2001) ; State v. Malave , 250 Conn. 722 , 737 A.2d 442 , 448-49 (1999) ; State v. Brewer , 505 A.2d 774 , 776-77 (Me. 1985). However, modern rules of evidence, such as Maryland Rule 5-607, 17 make clear that a party no longer vouches for a witness by calling that individual to the stand. Indeed, under Rule 5-607, a party may attack the credibility of a witness that the party calls to the stand. There is thus no presumption that the witnesses that a party calls will be favorable to it or, conversely, that those the party does not call will be unfavorable.

Similarly, as the Supreme Court opinion in Graves indicated, the missing witness rule was viewed as an incentive for parties to produce as witnesses those individuals who had knowledge of the facts of a case. However, modern criminal discovery rules provide for greater exchange of information by parties, such that each party has more information in advance of trial as to the universe of potential witnesses and their likely testimony. See, e.g. , Tahair , 772 A.2d at 1084 ; Malave , 737 A.2d at 447 ; Brewer , 505 A.2d at 777 n.2 (Me. 1985) ; cf. McGlone v. Superior Trucking Co., Inc. , 178 W.Va. 659 , 363 S.E.2d 736 , 742 (1987). For example, under Maryland Rule 4-263(e)(4), a defendant in a criminal case who intends to present an alibi defense must identify for the State the individuals that the defendant plans to call to support the alibi. 18 3.

Accuracy of the Rationale of the Missing Witness Rule The rationale for the missing witness rule is at best questionable. See Tahair , 772 A.2d at 1084 ; Malave , 737 A.2d at 449 . Most experienced litigators prefer to try a "lean" case-or come to regret it if they do not. 19 Counsel seldom call every witness who may have favorable testimony. There may be many reasons why a potential witness does not make the cut, few of which have anything to do with whether what the witness would say would be favorable to the party.

As one court has noted, "the decision to call a witness often turns on factors which have little to do with the actual content of the [witness'] testimony. Considerations of cumulation and jury fatigue may preclude calling a witness who is entirely helpful; calculations that a witness may help a lot but hurt a little may compel restraint when counsel believes that [a] burden is already met.... [Q]uestions of demeanor and credibility, hostility, and the like may influence" a decision not to call a witness whose testimony would be favorable. United States v. Busic , 587 F.2d 577 , 586 (3d Cir. 1978), rev'd on other grounds , 446 U.S. 398 , 100 S.Ct. 1747 , 64 L.Ed.2d 381 (1980). In light of the potential inaccuracy and unfairness of the missing witness rule, courts have added various qualifications and conditions for its use and "erect[ed] procedural barriers for counsel to surmount before the substantive propriety of the inference will even be considered." R.H. Stier, Jr., Revisiting the Missing Witness Inference-Quieting the Loud Voice from the Empty Chair , 44 Md. L. Rev. 137 , 151 (1985).

An attempt in 1985 to simply restate the missing witness rule with all its accrued qualifications and conditions found that the succinct single sentence of Graves had ballooned into the better part of two pages of a law review article. Id. 4. Abandonment of the Missing Witness Instruction in Other Jurisdictions A growing number of jurisdictions have limited the use of a missing witness instruction in criminal cases, at least to the extent that it would allow an adverse inference based on the failure of a defendant to call a witness. State Jurisdictions Courts in some states have severely limited the use of a missing witness instruction.

For example, in State v. Hill , the New Jersey Supreme Court stated: We now hold that Clawans charges [the New Jersey term for a missing witness instruction] generally should not issue against criminal defendants. The inclusion in a criminal trial of a Clawans charge from the court risks improperly assisting the State in its obligation to prove each and every element of the charged crime beyond a reasonable doubt. 199 N.J. 545 , 974 A.2d 403 , 416 (2009). See also Commonwealth v. Schatvet , 23 Mass.App.Ct. 130 , 499 N.E.2d 1208 , 1211 (1986) ("Circumspection in this matter is especially called for where the inference would run against a defendant in a criminal prosecution, for the inference may come uncomfortably close to involving constitutional rights"). Other states have completely abandoned the use of a missing witness instruction in criminal cases with respect to defendants.

One state supreme court has noted the "growing wariness" about the use of the instruction in criminal cases and opined that the missing witness instruction has "outlived its usefulness in criminal trials and should be abandoned." State v. Tahair , 172 Vt. 101 , 772 A.2d 1079 , 1080, 1083 (2001) ; see also State v. Brewer , 505 A.2d 774 (Me. 1985) ; State v. Malave , 250 Conn. 722 , 737 A.2d 442 (1999). Some state supreme courts still allow a prosecutor to argue a missing witness inference in appropriate circumstances, but hold that endorsement of the inference "has no proper place in the judge's statement of the law" and that a missing witness instruction "even in its limited and restricted uses, brings about more problems than solutions." State v. Hammond , 270 S.C. 347 , 242 S.E.2d 411 , 416 (1978) ; see also Henderson v. State , 367 So.2d 1366 , 1368 (Miss. 1979) (adopting rationale of Hammond ). Finally, some state supreme courts have not only abolished a missing witness instruction with respect to a potential but absent defense witness, but have also forbidden prosecutorial argument based on the "missing witness rule" as impermissibly shifting the burden of proof. See Ross v. State , 106 Nev. 924 , 803 P.2d 1104 , 1105 (1990) ; State v. Caron , 300 Minn. 123 , 218 N.W.2d 197 , 200 (1974) ; State v. Jefferson , 116 R.I. 124 , 353 A.2d 190 , 199 (1976) (adopting rationale of Caron ), overruled on other grounds , State v. Caruolo , 524 A.2d 575 (R.I. 1987).

Federal Jurisdictions In the federal courts, the vast majority of cases concerning missing witness instructions deal with whether a trial court should have given such an instruction involving an inference against the government rather than against the defendant. Indeed, the pattern instructions in a number of circuits advise trial courts not to give such an instruction with respect to a defendant. K. F. O'Malley, et al. , 1A Federal Jury Practice and Instructions (6th ed. & Feb. 2018 update) § 14.15. For example, the missing witness instruction in the First Circuit refers only to a missing government witness.

Although the commentary allows for the possibility it could be revised to apply a potential defense witness, it states that a trial court should "exercise extreme caution" in doing so and should reiterate, as part of any such instruction, the principle that there is no obligation on the defendant to call any witnesses or produce any evidence. Id. In the Seventh Circuit, "[i]t is the view of the Committee that a missing witness instruction should not be given." Id. (adding that any such instruction should reiterate the principle that a defendant has no duty to call witnesses or produce evidence).

The Eighth Circuit does not have a model missing witness instruction because of the "limited circumstances" in which it would be appropriate and provides that such an instruction should never be given in a case where a defendant has offered no evidence. Id. C. The Evolution of the Missing Witness Rule in Maryland Maryland appellate courts have also treated the missing witness rule with some skepticism-at least insofar as it involves a jury instruction that authorizes a jury to draw an inference adverse to a defendant in a criminal case. 1. Christensen -a Preferred Procedure; Requiring a No-Inference Instruction This Court first grappled with the appropriateness of a missing witness inference in the modern era in Christensen v. State , 274 Md. 133 , 333 A.2d 45 (1975). 20 The Christensen decision is significant for (1) its holding that the use of the missing witness inference against a defendant is constrained by the constitutional principles that govern criminal trials and (2) dicta concerning the procedure to be followed when a party seeks a missing witness instruction.

That case concerned an alleged rape. At trial, neither the prosecution nor the defense called an alleged accomplice to the crime as a witness. In closing argument, the prosecutor suggested that the jury should draw an inference adverse to the defendant from the absence of that potential witness. The defense requested that the trial court instruct the jury to the contrary-that the defendant had no duty to produce the alleged accomplice and that no inference could be taken against the defendant for not doing so.

The requested instruction was precisely the opposite of a missing witness instruction-what might be called an "anti-missing witness" or "no-inference" instruction. The trial court declined to give a no-inference instruction. Following the defendant's conviction, he challenged the constitutionality of the use of the missing witness rule in criminal cases. In a unanimous decision authored by Judge Marvin Smith, the Court did not reach the constitutional issue 21 because it held that the missing witness inference did not apply in a situation, like the case before it, involving a defendant-accomplice relationship. 274 Md. at 134 -35 , 333 A.2d 45 (quoting 1 Underhill, Criminal Evidence § 45 (rev. 6th ed. 1973) and citing 1 Wharton, Criminal Evidence § 148 (13th ed. 1972) ).

The Court noted that an alleged accomplice might well assert his Fifth Amendment privilege not to testify and thus prove unavailable, even if his testimony would exculpate the defendant on trial. 274 Md. at 140 , 333 A.2d 45 . Thus, Judge Smith wrote, "the defendant would be faced with a Hobson's choice incompatible with our concept that a defendant is innocent until proven guilty beyond all reasonable doubt and that the burden of proof never shifts from the State." Id. The Court also held that the trial court should have given the defendant's requested no-inference instruction-that no inference could be drawn against the defendant with respect to the absence of the alleged accomplice-and remanded the case for a new trial. Id.

In holding that the trial court should have instructed the jury that it could not draw an inference adverse to the defendant, the Court implicitly also found the prosecutor's argument that the jury should draw an adverse inference to be improper. The Christensen case thus did not concern whether a trial court should give-or decline to give-a missing witness instruction. Rather, it held that the missing witness rule, whether in argument or instruction, had no place in the case before it. Accordingly, a defendant in a criminal case may actually be entitled to what amounts to an "anti-missing witness instruction" in certain circumstances 22 - i.e. , the jury may not draw an adverse inference against the defendant-in light of the constitutional principles that govern criminal trials.

However, the Court did not rule out the possibility that a missing witness instruction might be appropriate in some circumstances. In a footnote, the Court indicated the "preferred procedure" that a trial court should follow when a missing witness instruction is requested and quoted at length from a decision of the New Jersey Supreme Court describing that procedure. Id. at 135 n. 1, 333 A.2d 45 ( quoting State v. Clawans , 38 N.J. 162 , 183 A.2d 77 (1962) ). 23 Under the "preferred procedure," the party seeking a missing witness instruction concerning the opposing party's failure to call a witness is to advise the trial court and opposing party of its intention out of the presence of the jury at the close of the opposing party's case. The opposing party should then be given an opportunity to call the missing witness or to demonstrate to the court "by argument or proof the reason for the failure to call" the witness. 274 Md. at 135 n.1, 333 A.2d 45 .

The trial court would then determine whether a missing witness inference is appropriate or not. Id. 2. Robinson -Missing Witness Argument versus Jury Instruction While the Christensen decision constrained the use of a missing witness instruction in a criminal case both substantively and procedurally, the Court's next treatment of the missing witness rule appeared to accept a broader use of a missing witness instruction in a criminal case, although the Court was closely divided on the propriety of that instruction. In Robinson v. State , 315 Md. 309 , 554 A.2d 395 (1989), the defendant was convicted of an offense related to his use of a stolen car.

At trial, the defendant testified that he had received the car from a friend named "Alvin Johnson" whom, he said, he had pointed out to the police. "Alvin Johnson" was not called as a witness, and the trial court gave a missing witness instruction that permitted the jury to draw an inference adverse to the defendant. Following his conviction, the defendant appealed on the ground that the trial court should not have given the missing witness instruction. In a 4-3 decision, this Court held that the missing witness instruction was appropriately given.

It observed that Alvin Johnson's existence and involvement were established only by the defendant's own testimony and that it was not uncommon for a person found in possession of stolen property to fabricate a story that another person had provided the stolen property. 315 Md. at 316 -17 , 554 A.2d 395 . The majority opinion conceded that Alvin Johnson, if he existed, would have a Fifth Amendment right not to testify, but noted that he could have been called and questioned outside the presence of the jury to determine whether he would invoke his privilege not to testify. The majority opinion also equated the circumstances under which a prosecutor could argue a missing witness instruction with those under which a trial court could give such an instruction: If the argument fairly may be made, then it stands to reason that a sufficient foundation of facts exists upon which the inference may be drawn. Where the inference may be drawn, it will ordinarily be within the discretion of the trial judge to grant or refuse a missing witness instruction.

Id. at 318-19 , 554 A.2d 395 (footnotes omitted). However, in a footnote, the majority opinion emphasized that a trial court is not required to give the instruction. Id. at 319 n. 7, 554 A.2d 395 . In a dissenting opinion joined by Judge Eldridge and Judge Cole, Judge William H. Adkins II observed that "courts have reacted to the [missing witness] rule's potential inaccuracy and unfairness by decreasing the number of situations in which the adverse inference might be applied" and cited, as an example, the "prudent limitation" set forth in the Christensen decision. 315 Md. at 323 , 554 A.2d 395 (quoting Stier, 44 Md. L. Rev. at 151 ).

Judge Adkins also observed that the "inference is at best a weak one" and that it raises constitutional issues in the criminal context. Id. at 323 n.1, 554 A.2d 395 . He argued that the Christensen decision, properly applied, precluded a missing witness instruction in the case before the Court. In contrast to the majority opinion, Judge Adkins suggested that there should be a higher bar for a jury instruction endorsing a missing witness inference, even if the prosecutor in argument might legitimately ask the jury to draw that inference: The issue in this case ... is not what inferences the jury might have drawn or what arguments might be proper....

The issue is whether it was proper for the judge to give the instruction he gave. That instruction ... added a judicial imprimatur to the adverse inference that might be drawn from [Johnson's] absence. Id. at 327 n. 2, 554 A.2d 395 . 3. Davis -Cautioning Against an Instruction Even if Argument is Proper By the next time the Court addressed the missing witness rule at length, Judge Adkins had left the Court, but his distinction between what is permissible in argument and what may be the subject of a jury instruction became the centerpiece of a unanimous portion of the Court's opinion. 24 Davis v. State , 333 Md. 27 , 633 A.2d 867 (1993), overruled on other grounds , Pearson v. State , 437 Md. 350 , 86 A.3d 1232 (2014).

In that case, the defendant was charged with various drug offenses as a result of his presence with cash at a drug deal. The defendant testified that he was present at the scene of the drug deal because he was on his way to buy food for his family; another defense witness testified that the defendant had received $10 from his wife for that purpose; the wife, though present in the courtroom, was not called to testify. 333 Md. at 47 , 633 A.2d 867 . During the State's closing argument, the prosecutor posed the question of why the wife had not been called to testify if she would have corroborated the defense. Id. at 47-48 , 633 A.2d 867 .

While the trial court overruled a defense objection to that argument, it did not give a missing witness instruction itself. On appeal, the defendant contended that the trial court had erred in permitting the prosecutor to make an argument that the jury could draw an inference adverse to him from the failure of his wife to testify. The Court rejected that contention, holding that the marital relationship was sufficiently close as to render the wife peculiarly available to the defendant. 333 Md. at 50 -51 , 633 A.2d 867 . The Court went on to emphasize that the missing witness inference was raised in the State's closing argument rather than in a jury instruction by the trial court.

Stating that the prerequisites of the missing witness rule must be "more rigidly applied" for a jury instruction to be given, the Court drew a contrast between the two ways in which the adverse inference could be suggested to the jury: Where a party raises the missing witness rule during closing argument, its use is just that-an argument. Trial judges typically instruct the jury, as in this case, that the parties' arguments do not constitute evidence .... In contrast to the argument context is the trial judge's instruction to the jury. In [that] case, the inference is communicated to the jury as part of the judge's binding jury instructions, creating the danger that the jury may give the inference undue weight. [A] trial court should be especially cautious and closely abide by the requirements set out in Christensen .

Id. at 52 , 633 A.2d 867 . See also Patterson v. State, 356 Md. 677 , 741 A.2d 1119 (1999) (trial court properly allowed counsel to make "missing evidence" argument while declining to give "missing evidence" jury instruction); Lowry v. State , 363 Md. 357 , 371-75, 768 A.2d 688 (2001) (same); Bruce v. State , 318 Md. 706 , 569 A.2d 1254 (1990) (there was a sufficient basis for prosecutor to make missing witness argument with respect to defendant's girlfriend, when defendant testified he was with the girlfriend on the day of the murder). 4. Bereano -The Need for Adequate Notice This Court's most recent consideration of the missing witness rule occurred 10 years ago in the context of a case arising out of a civil administrative proceeding in which the State Ethics Commission decided that a lobbyist had violated the Public Ethics Law. Bereano v. State Ethics Commission , 403 Md. 716 , 944 A.2d 538 (2008).

In a 5-2 decision, the Court held that the Commission had erred in relying on the missing witness rule as part of its reasoning in its written decision. As the issue arose in a civil context and involved neither a closing argument to a jury nor a jury instruction, the circumstances are readily distinguishable from those of this case. Nonetheless, Judge Harrell's careful consideration of the underpinnings and operation of the missing witness rule in the court's majority opinion is instructive. After surveying a number of authorities and cases in Maryland and elsewhere, the majority opinion concluded that the justification for the inference was "limited," that many courts had accordingly curtailed its use, and that it should be invoked "prudently." 403 Md. at 751 -55 , 944 A.2d 538 .

The majority opinion noted that, "(b)ecause of the limited justification for the rule and the chance of an erroneous inference being drawn, courts often require early notice from a party intending to make a missing witness argument or intending to request such an instruction." Id. at 752 , 944 A.2d 538 (internal quotation marks and citation omitted). The majority opinion was troubled by the fact that no notice had been given that the agency would rely on a missing witness rule before it drew an adverse inference based on that doctrine in its written decision and that no findings had been made as to the prerequisites for application of the missing witness rule- e.g. , the peculiar availability of the witness to one side. 5. Summary The following principles concerning the missing witness rule can be derived from this Court's decisions described above: • Basic prerequisites: (1) There is a witness (2) Who is peculiarly available to one side because of a relationship of interest or affection (3) Whose testimony is important and non-cumulative (4) Who is not called to testify 25 • Whether a Witness is Peculiarly Available: An accomplice-defendant relationship does not necessarily mean that the accomplice is "peculiarly available" to the defendant given the possibility that the accomplice would assert the privilege against self-incrimination. A witness who will assert the privilege against self-incrimination is not "available" and cannot be the subject of a missing witness instruction.

If a "missing" witness claims his or her privilege against self-incrimination, that claim may be tested outside the jury's presence. Christensen , Robinson . • Missing Witness Argument versus Missing Witness Instruction: In cases in which it may be appropriate for the prosecutor to ask the jury to draw a missing witness inference adverse to the defendant, the trial court should not necessarily give a missing witness instruction. A trial court should be "especially cautious" in considering whether to give a missing witness instruction adverse to a defendant in a criminal case. Davis . • Procedure: When a party intends to ask the trial court to give a missing witness instruction, the party should give advance notice to the opposing party and raise the issue at a time when the opposing party has an opportunity to call the allegedly missing witness or provide proof that the witness is not peculiarly available to that party.

Christensen , Bereano . • No-Inference Instruction: In some circumstances in which a defendant has not called a witness that might be thought to be favorable to the defendant, the trial court may not give a missing witness instruction and, indeed, could be required to give, at the defendant's request, an instruction that no adverse inference should be drawn by the jury against the defendant. Christensen . III Discussion A. Standard of Review In a criminal jury trial, the trial court "may, and at the request of a party