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.
In this post, we will look at the so-called “missing witness rule” under Maryland law and how it may come up in 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 pattern hypothetical. Let’s say you represent 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.
Dr. Smith is one of the doctors who treated Tina for her injuries after the accident. Dr. Smith treated Tina for her prior back problems for several years. You talked to Dr. Smith several times, and you are not a big fan of his opinion on whether the accident aggravated Tina’s pre-existing back condition. 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 a witness at trial.
During discovery, you identify Dr. Smith and produce his treatment records. Based on Dr. Smith’s records, the defense counsel knows his opinion will not 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 an adverse 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 a 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 must show that the party had exclusive control or access to them. In practice, this tends to be the much more common scenario because few witnesses are assumed to be favorable. Examples seem limited to a spouse (outside of a divorce case, obviously) with a vested interest in the case’s outcome.
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) does NOT apply when the witness is 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 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.
Keep in mind the decision to apply the missing witness rule is at the discretion of the judge overseeing the trial. The judge will consider whether the conditions for invoking the rule have been met and whether it is appropriate to allow an inference to be made based on the absence of the witness’s testimony.