Testimony from a key witness can often make or break a tort case at trial. But sometimes the witness testimony that the jury never hears can be even more critical in shaping the outcome. This leads to frequent battles over absentee witnesses.
In this post, we will take a look at the so-called “missing witness rule” under Maryland law and how it may come up in the context of a personal injury trial.
Hypothetical Scenario for Missing Witness Rule
Like any good law school lecture, our discussion of Maryland’s version of the missing witness doctrine will start with a fact hypothetical. Let’s say you are representing Tina as the plaintiff in an auto accident case. Tina is seeking damages for her back injuries, but the defense is arguing that the injuries were pre-existing and not caused by the accident.
One of the doctors who treated Tina for her injuries after the accident is Dr. Smith. Dr. Smith had been treating Tina for her prior back problems for several years. You talked to Dr. Smith on several occasions and you are not a big fan of his opinion on whether Tina’s pre-existing back condition was aggravated by the accident. You have a much more favorable opinion from a different doctor that you retained as an expert witness, so you have no intention of calling Dr. Smith as a witness at trial.
During the course of discovery, you identify Dr. Smith and produce all of his treatment records. Based on Dr. Smith’s records, defense counsel is well aware that his opinion is not going to be helpful to your case. The case proceeds to trial and Dr. Smith is not on your list of witnesses and defense counsel makes no effort to subpoena him as their own witness.
Instead, the defense argues that Dr. Smith is a “missing witness” and, therefore, the jury should be instructed to draw a negative inference from the fact that you elected not to call him. In other words, they want to tell the jury that you’re not calling Dr. Smith because he would contradict your claims.
Maryland Law on Missing Witness Rule Inferences
The missing witness rule is not actually a rule of evidence, but rather a well-established case law doctrine regarding the permissible inference a factfinder may draw from the absence of potential witness in the case. The missing witness rule (sometimes called the “empty-chair doctrine”) permits an adverse inference to be drawn from a party’s failure to call a witness if that witness was “peculiarly available” to only that party:
if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate a transaction, the fact that he does not do it creates a presumption that the testimony, if produced, would be unfavorable.
Bereano v. State Ethics Comm’n, 403 Md. 716, 722 (2008).
The Maryland Court of Appeals has explained that missing witness inferences fall into two categories:
(1) an adverse inference may be drawn against a party if they fail to call a witness reasonably assumed to be favorably disposed to the party,
(2) a negative inference may be drawn against a party who has exclusive control over a witness but fails to produce him, regardless of whether that witness is reasonably assumed to be favorable to the party.
Id. (citing Mccormick on Evidence § 264 (6th ed.2006))
For cases in the first category, it doesn’t matter whether the party has exclusive control or access to the witness. In other words, if you don’t call a witness that should clearly be favorable to your case, the court can assume it is because they were not going to be favorable.
If the witness is NOT someone assumed to be favorable to a party’s case, you need to show that the party had exclusive control or access to them. In practice, this tends to be the much more common scenario because there are few witnesses that are assumed to be favorable. Examples seem to be limited to a spouse (outside of a divorce case — obviously) who has a vested interest in the outcome of the case.
When is Missing Witness “Peculiarly Available” to a Party?
The appellate courts in Maryland have repeatedly made it clear that the missing witness rule (and its negative inference) do NOT apply when the witness is someone equally available to both sides. E.g. Dansbury v. State, 193 Md. App. 718, 742 (2010). The Court of Appeals recently offered the following explanation of what “equally available” means in this context:[w]hat is meant by ‘equal availability’ in this context is not merely that a witness is subject to compulsory process, and thus available in a descriptive sense, but that he is of equal avail to both parties in the sense that he is not presumptively interested in the outcome.
Berano at 725.
A brief review of the case law makes it very clear that it is very difficult to show that a witness was NOT “equally available” to both parties. For example, in Bing Fa Yuen v. State, 43 Md.App. 109 (1979) the missing witness refused to talk to defense counsel, was in federal witness protection and was openly against the defendant, yet he was still considered “equally available” to both sides.
Also, in Hayes v. State, 57 Md. App. 489 (1984) the defendant’s brother-in-law was held to be “equally available” despite a family connection. Social friends and former attorneys have similarly been held to be equally available to both sides. See, e.g., Repecki v. Home Depot USA, 942 F.Supp. 126, 129 (E.D.N.Y.1996) (shopping friend); In re Williams, 190 B.R. 728, 734 (D.R.I.1996) (former attorney).
Application to Our Hypothetical Scenario
If we apply this case law to the hypothetical fact situation described above, it seems pretty clear that the missing witness rule would not apply because Dr. Smith was “equally available” to both sides.
Dr. Smith was certainly not within Tina’s exclusive control and his status as Tina’s former doctor does not make him “presumptively interested in the outcome.” As a former doctor of the plaintiff, Dr. Smith is analogous to the former attorney for the debtor in In re Williams.