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Testimony from a critical witness can often make or break a tort case at trial. But sometimes, the witness testimony the jury never hears can be even more critical in shaping the outcome. This leads to frequent battles over absentee witnesses.

The “missing witness” rule in Maryland, also known as the “failure to call a witness” rule, is a legal principle that allows a party to make an argument or inference in a trial based on the failure of the opposing party to call a witness who might know essential facts relevant to the case. This rule – although technically not a rule – is designed to address situations where a party possesses evidence that could be helpful to their case but does not present that evidence at trial.

The origins of the missing witness rule can be traced back to early English common law, where courts inferred that the absence of a witness implied the testimony would be unfavorable to the party failing to present the witness. This rule was rooted in the principle of fairness and the adversarial nature of legal proceedings, aiming to prevent parties from withholding evidence that could potentially alter the outcome of a trial.