The ‘Missing Witness’ Jury Instruction and the Role it Can Play in Your Maryland Criminal Trial

As a defendant in a criminal trial, you have the right to testify or to forego testifying. You also have the right to call the witnesses whom you want and refrain from calling witnesses whom you don’t want on the stand. All of these decisions are made based upon carefully considering the overall strategic “pluses” and “minuses” of each choice. However, what happens when someone who seems like a key witness for the defense is never called to the stand? In some situations, a judge can instruct the jury to infer that the non-testifying non-witness would have given testimony harmful to the defense had she taken the stand. The set of circumstances in which a judge can give this jury instruction is extremely narrow, though, and improperly giving such an instruction can result in a reversal of any conviction. When it comes to all of these strategic trial choices, it pays to have a knowledgeable Maryland criminal defense attorney representing you.

In one recent case from Baltimore, the judge did give that instruction, and the giving of the instruction allowed the defendant to obtain a reversal of his conviction. The man on trial was Jerry, who stood accused of several crimes related to a home break-in and robbery. There was actually very little evidence tying Jerry to the crimes. The only thing the state had was latent fingerprint evidence on pill bottles found at the home that matched fingerprints on file for Jerry.

Jerry testified in the trial. He asserted that he wasn’t involved and had not been at the scene of the crimes. Jerry asserted that, at the time that the crimes took place, he was at home with his mother. In the defense opening statement, Jerry’s attorney stated that the mother would testify and would state that Jerry was at home with her. Jerry’s mom, however, did not testify for the defense.

At the end of the trial, the judge gave the jury its instructions. Among other things, the judge told the jury that it could infer from the fact that Jerry’s mother didn’t testify that, if she had testified, her testimony would have been harmful to Jerry’s defense. After a long deliberation, the jury returned a split verdict that convicted the defendant on some but not all of the charges.

Jerry appealed and successfully got his convictions overturned by Maryland’s highest court. The reason that the verdict against Jerry could not stand related back to the jury instruction the judge gave regarding Jerry’s mother. In order for the type of instruction that the judge gave the jury in this case (called a “missing witness” instruction) to be used, there must be evidence that the missing witness was “peculiarly available” to the defendant. Additionally, Maryland law has certain preferred procedures for the inclusion of a missing witness instruction in a set of jury instructions.

In Jerry’s case, there was no proof that the mother was “peculiarly available” to him, other than the fact that she was his mother. In the past, other Maryland courts have ruled that a close familial relationship isn’t enough to meet this peculiar availability standard. Additionally, the judge in Jerry’s trial did not follow the preferred procedural steps.

The Court of Appeals also cautioned that a missing witness instruction in favor of the state should rarely be given by trial judges. Doing so allows juries to make inferences in favor of the prosecution, which can run counter to the fundamental notion that the state must prove each element of its case beyond a reasonable doubt before a defendant can be convicted.

Whether it is advice about witness selection or advocacy regarding jury instructions, skilled counsel can help you protect your rights and put together a strong defense. Experienced Maryland criminal defense attorney Anthony A. Fatemi has been providing effective defense representation for the accused in Maryland for many years. To learn more, contact us at 301-519-2801 or via our online form.

More blog posts:

How Erroneous Jury Instructions on a Maryland Murder Charge Can Taint an Entire Case and Lead to a Reversal of All Convictions, Maryland Criminal Lawyer Blog, Feb. 9, 2018

How a Flaw in Jury Instructions Allowed a Maryland Murder Defendant to Secure a New Trial, Maryland Criminal Lawyer Blog, Sept. 7, 2017


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