WITNESS - FAILURE OF THE STATE TO PRODUCE[1] model jury charge
During the course of this trial, reference has been made
to___________(NAME OF PERSON) as a witness in this matter (as having
information relevant to the matter before you) and that the State has failed to
call (him/her) to testify. If you find
that ___________ (NAME OF PERSON) is a person whom you would
naturally expect the State to produce to testify, you have a right to infer
from the non-production of this witness that (his/her) testimony would be
adverse to the interest of the State.
The basis for this rule is that where the
State fails to produce a witness who probably could testify about certain facts
in issue, it raises a natural inference that the non-producing party fears that
the testimony of the witness on that issue would be unfavorable to (him/her).
An inference is a deduction of fact that
may be drawn logically and reasonably from another fact or group of facts
established by the evidence. Whether or
not an inference should be drawn is for you to decide using your own common
sense, knowledge and everyday experience.
Ask yourselves is it probable, logical and reasonable. However, you are never required or compelled
to draw an inference. You alone decide
whether the facts and circumstances shown by the evidence support an inference
and you are always free to draw or not to draw an inference. If you draw an inference, you should weigh it
in connection with all the other evidence in the case keeping in mind that the
burden of proof is upon the State to prove all the elements of the crime beyond
a reasonable doubt.
[1] Before the trial court
can give this charge, euphemistically referred to as a “Clawans” charge, State
v. Clawans, 38 N.J. 162 (1962), or allow a comment in
summation on the missing witness, the party seeking the charge/summation
comment MUST, before the parties rest, notify the trial judge and the opposing
party outside the presence of the jury, state the name of the witness/witnesses
not called, and indicate why this witness/witnesses have superior knowledge of
the relevant facts. State v. Hill,
199 N.J. 545, 560-61 (2009). The
trial court must rule on this issue before a jury instruction OR summation
comment is allowed. Id. at 561.
In making its decision, the trial court must consider various factors, id.
at 561, and place on the record findings as to each of these factors. Ibid.
Note that this charge rarely should be given against a defendant. See Witness
– Failure of the Defendant to Produce charge.