NOTE: In most cases it will be the Judge who determines whether an adverse inference may or may not be drawn from a party's failure to call a witness. Wild v. Roman, 91 N.J. Super. 410, 416 (App. Div. 1966). If the Judge determines that the adverse inference may or may not be drawn, (he/she) may use alternative charges B, C, or D. In making (his/her) determination whether an adverse inference may or may not be drawn, the judge may consider the non-exhaustive list of criteria (1-5) in alternative charge A.
If there are any factual disputes concerning whether the adverse interest may or may not be drawn, the determination must be left to the jury and alternative charge A should be used.
(A) WHERE COURT DETERMINES THAT THERE IS AN ISSUE OF FACT AS TO ONE OR MORE OF THE CRITERIA
During the course of this trial, reference has been made to as a witness in this matter (as having information relevant to the matter before you) and that the state/defendant has failed to call (him/her) to testify. If you find that is a person whom you would naturally expect that state/defendant 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/defendant.
The basis for this rule is that where a party fails to produce a witness who probably could elucidate 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).
However, an adverse inference should not be drawn:
(1) If is not a witness whom the state/defendant would naturally be expected to produce, such as a person who is, by (his/her) position, likely to be so prejudiced against that party that the party could not be expected to obtain the unbiased truth from (him/her).1
1 State v. Clawans, 38 N.J. 162, 171 (1962)
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(2) If there has been a satisfactory explanation for (his/her) non-production; or
(3) If (he/she) is equally available to both parties; or
(4) If (his/her) testimony would be comparatively unimportant, cumulative in nature or inferior to that which you already have before you,
(5) [Note: When the witness is an expert witness] If it would be too expensive to call the witness, or too great an imposition upon the witness' time and profession as compared with the importance of (his/her) testimony and the value of the litigation.2
Whether or not an adverse inference should be drawn is for your determination based upon the principles I have just set forth.
COMMENTS
The appropriate criteria may be selected by the Judge and molded to fit (his/her) particular case.
Judge Gaulkin in Wild v. Roman, Supra. discussed the following principles in determining whether or not the absent witness charge should be given (91 N.J. Super. at p. 414):
"In Clawans the Court stressed the 'peculiar facts' before it. Therefore we doubt that Clawans always compels the giving of such a charge when a possible witness does not appear, even upon request and even if the rules laid down in Clawans and hereafter discussed are complied with.
1. State v. Clawans, 38 N.J. 162, 171 (1962)
2. Wild v. Roman, 91 N.J. Super. 410, 416 (App. Div. 1966)
Be that as it may, Clawans did not hold that the charge was to be given merely because a person who apparently knew something about some facet of the case did not appear and testify. We think Clawans made it abundantly clear that (1) the charge is not to be given unless the judge is first satisfied that giving it is clearly justified as to a particular witness
2 Wild v. Roman, 91 N.J. Super. 410, 416 (App. Div. 1966)
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or a particular class of witnesses, and (2) the charge, if given, must identify the witness or class of witnesses in question and the issues upon which their testimony might have been helpful. See Clawans, at p. 173, and Justice Frances's dissenting opinion therein, at pp. 175-176.
"Clawans restated the conditions precedent for such a charge. It must appear that it was within the power of the party to produce the witness. The inference is `based not on the bare fact that a particular person is not produced as a witness * * * but on his non-production when it would be natural for the party to produce the witness.' (citation omitted.) It must appear reasonably probable that the witness "could testify to specifically identifiable facts.' (citation omitted.), and, even then, that his evidence would not be merely cumulative, but `superior to that already utilized in respect to the fact to be proved.' (citation omitted.) The inference is not proper if the witness is available to both parties or 'by his position would be likely to be so prejudiced against the party that the latter would not be expected to obtain the unbiased truth from him * * *.'"
NOTES:
(1) Specify Witnesses Involved
Since the absent witness charge should not be given as to all absent witnesses, to avoid confusion the charge should be related specifically to those witnesses to whom it applied. Biruk v. Wilson, 50 N.J. 253, 261 (1967).
As stated above a different charge may be required with respect to the absence of different witnesses. As to some absent witnesses an adverse inference may be drawn, but as to others the only inference that may be drawn is that witness' testimony would not have specifically contradicted the evidence offered by an adversary and would not have materially aided a given party's case. In some cases no adverse or other inference can be drawn.
(2) Procedure Before Giving Charge
A party desiring an adverse inference charge should advise the trial judge and counsel out of the jury's presence at the close of (his/her) adversary's case of (his/her) intention to request the adverse inference charge as to particular persons not called and the reasons why the charge should be given. The adversary should then be given the opportunity to either call the designated witness or demonstrate to the court "by argument or proof" the reason for the failure to call.
Depending upon the circumstances disclosed, the trial court may decide the failure to call the witness raises no inference, or an unfavorable one, and whether reference in the summation or charge is warranted. State v. Clawans, 38 N.J. 162, 172 (1962).
(3) Construction of "Equally Available" to both parties.
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An adverse inference does not arise as to the ordinary witness whose testimony would likely be as favorable to one party as to the other. Whether a witness is "equally available" is not to be determined from mere physical presence, but the court should consider the relationship of the witness to a party and other factors related thereto. Hickman v. Pace, 82 N.J. Super. 483, 492 (App Div. 1964). Defendant testified that the witnesses were out of state, that he had asked them to come in and testify as witnesses for him, but they had refused. See also, Michaels v. Brookchester, Inc. 26 N.J. 379, 391 (1958).
(4) Failure to Take Dispositions of Unavailable Witnesses
See, O'Neil v. Bilotta, 18 N.J. Super. 82, 87 (App. Div. 1952) aff'd 10 N.J. 308 (1952) as to the effect of not taking the deposition of an out-of-state witness.
(B) WHEN COURT HAS DETERMINED THAT THE ADVERSE INFERENCE MAY BE DRAWN
Reference has been made to (as a person who has information relevant to the matter before you) and that the state/defendant has failed to call (him/her) to testify.
The rule is that where a party (state/defendant) fails to produce as a witness a person who that party would naturally be expected to call to testify, you have a right to infer that had the witness been produced (he/she) would have testified adversely to the interests of that party (state/defendant).
The reason for this rule is that where you would normally expect a party to call a person as a witness and that party, without reasonable explanation, fails to do so, it leaves a natural inference that the non-producing party fears exposure of facts which would be unfavorable to (him/her).
See, State v. Clawans, 38 N.J. 162 (1962); Michaels v. Brookchester, Inc., 26 N.J. 379 (1958); O'Neil v. Bilotta, 18 N.J. Super. 82 (App. Div. 1952); aff'd 10 N.J. 308 (1952); Hickman v. Pace, 82 N.J. Super. 483, 490 (App. Div. 1964).
(C) WHERE COURT HAS DETERMINED TO CHARGE NO ADVERSE INFERENCE
CAN BE DRAWN
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During the course of this trial, reference has been made to . The Court has determined that the nonproduction of as a witness is excusable as a matter of law. Therefore, you should not speculate as to what (his/her) testimony would be had (he/she) been called to testify. Nor may you draw any inferences against or in favor of either party from (his/her) failure to testify.
(D) WHERE TESTIMONY IS NOT OF A MATERIAL AID
From the testimony it would appear that (Dr. ) is a person who has information relative to the (medical) issues involved, and that the state/defendant has failed to call (him/her) as a witness. The failure of a party to produce as a witness a person whom that party would naturally be expected to call does not necessarily permit the inference that the testimony of that witness would have been unfavorable to that party.
In the circumstance of this case, however, you may infer that this witness would not have specifically contradicted the testimony of witnesses (Dr. ) called by the state/defendant and that the evidence of the absent witness would not have materially aided state's/defendant's case.
COMMENTS:
In Parentini v. S. Klein Dept. Stores, 94 N.J. Super. 452 (App. Div. 1967), a false imprisonment case, plaintiff produced two doctors who testified as to the causal relation between the episode and the psychiatric condition of plaintiff and as to permanency. A neurologist examined plaintiff for defendant but was not called. Defendant offered no medical testimony. The court held that the usual adverse inference charge was error. The court noted that medical experts are often not called because their testimony would not be helpful enough to warrant the expense or intrusion on professional time, or the opinion offered may not be helpful to that party even though it is not adverse to that party. In the circumstances it was held that the trial court in its discretion could have charged that the jury could infer from the non-production of defendant's medical expert that his testimony "would not have specifically contradicted that of plaintiff's experts and it would not have materially aided defendant's case." (at p.457)
