Section Review

The missing witness standard

This article appeared in the July 1999 issue of theSection Review.
© 1999 Massachusetts Bar Association
Dean Mazzone is an assistant district attorney in the Suffolk County district attorney's appellate division. "The more precedents there are, the less occasion is there for law; that is to say, the less occasion is there for investigating principles."
—J. Boswell,
Life of Samuel Johnson (1906) If the Massachusetts Supreme Judicial Court says something, it must be so. But what if it isn't? And what if the SJC inconspicuously inserts a new rule of law into a footnote, completely unsupported by any analysis, and with citation to an authority that can not reasonably be read to even imply what the court says it implies? And what if other appellate courts, and practitioners generally, rely on that footnote as standing for a particularly important evidentiary proposition that has no basisin either logic or prior precedent.

This has happened in the commonwealth in the case ofmissing witness inferences drawn against criminal defendants. Because of adisingenuous citation in a single footnote of an SJC case, accompanied by noanalysis, an ill-conceived evidentiary rule has successfully subsumed logic,reason and prior precedent.
Comment on a party's failure to call witnesses,either in closing argument or in jury instructions, may be permitted whenjustified. The rule of law was set forth in Commonwealth v. Schatvet, 23 Mass.App. Ct. 130 (1986):

Where a party has knowledge of a person who can be locatedand brought forward, who is friendly to, or at least not hostilely disposedtoward, the party, and who can be expected to give testimony of distinctimportance to the case, the party would naturally offer that person as awitness. If, then, without explanation, he does not do so, the jury may, ifthey think reasonable in the circumstances, infer that that person, had he beencalled, would have given testimony unfavorable to the party.
Id. at 134.
The party arguing the inference should establish anadequate foundation in order to make such a comment. It is for the trial judgeto rule as a matter of law whether there is a sufficient foundation for amissing witness comment. Commonwealth v. Graves, 35 Mass. App. Ct. 76, 81, rev,denied, 416 Mass. 1103 (1993); Commonwealth v. Vasquez, 27 Mass. App. Ct. 655,658 (1989). Evidence of physical availability and the likelihood that thewitness can be produced by summons or otherwise is central to the inference.Commonwealth v. Franklin, 366 Mass. 284, 293 (1974).
According to the criteria set forth in Schatvet, then, amissing witness inference, like inferences drawn from any other evidence, needonly be reasonable and warranted by the evidence, and need not be proved beyonda reasonable doubt. However, a close reading of the case law reveals that afundamental misconception has evolved regarding inferences drawn from thefailure of a criminal defendant to produce witnesses. It has now becomecustomary in Massachusetts courts to instruct juries that the missing witnessinference, when drawn adverse to the criminal defendant, can, unlike ordinaryinferences, only be made if the jury finds the truth of the inference beyond areasonable doubt. This erroneous elucidation of the law arose out of the SJCcase, Commonwealth v. Niziolek, 380 Mass. 513 (1980), which appears to, butdoes not, hold that the truth of such an inference, when it is merely asubsidiary inference and not a fact necessary to constitute the crime charged,must be proved beyond a reasonable doubt.
The standard for drawing an "inference" insupport of the commonwealth's meeting its burden of proof has beenexplained as follows: "A jury may find an ultimate fact to be true uponproof of another fact if upon consideration of all the circumstances revealedby the evidence they are satisfied that in logic and common experience theultimate fact is more likely than not to flow from the fact proved."DeJoinville v. Commonwealth, 381 Mass. 246, 253 n.13 (1980), quoting McInerneyv. Berman, 473 F. Supp. 187, 188 (D.Mass. 1979). An inference drawn from factsor circumstances need not be necessary but only reasonable. Commonwealth v.Corriveau, 396 Mass 319 340 (1985); Commonwealth v. Best, 381 Mass. 472, 483(1980) Further, the defendant is not entitled to an instruction that the jurymay draw an inference only if the commonwealth has proven beyond a reasonabledoubt the subsidiary facts on which it rests. Commonwealth v. Lawrence, 404Mass. 378, 394 (1989). Nor is there a requirement that every inference beproved beyond a reasonable doubt. Commonwealth v. Ruggerio, 32 Mass. App. Ct.964, 966 (1992); Commonwealth v. Azar, 32 Mass. App. Ct. 290, 309 (1992). Themissing witness inference is simply an inference to which the above rulesshould apply. Only a misreading of Commonwealth v. Niziolek, or a consciousdecision to depart from the rule and propound an entirely new one withoutexplanation, would suggest otherwise.
In Commonwealth v. Niziolek the SJC held that the missingwitness inference, when adverse to the defendant in a criminal case, does notshift to the defendant the commonwealth's traditional burden of provingeach and every element of the crime beyond a reasonable doubt. Niziolek, 380Mass. at 521-522. The court in Niziolek, proceeded to explain the reasoning ofits holding by quoting from Gilbert v. State, 36 Md. App. 196, 208 (1977):
The possibility of such an inference being drawn does notimpose an unconstitutional burden upon the defendant. The State still bears theburden of persuasion beyond a reasonable doubt. The fact finder need not drawthe permitted factual inference. In a jury case, the defendant is entitled toan appropriate instruction telling the jury that they should not so inferunless they are persuaded of the truth of the inference beyond a reasonabledoubt. The only ‘burden' upon a defendant is the purely tacticaldecision of choosing to controvert the state's proof so as to help insurea reasonable doubt. (This is not a burden in the constitutional sense in whichMullaney v. Wilbur [421 U.S. 684 (1975)] and In re Winship [397 U.S. 358(1970)] speak.) To the extent to which the fact finder believes the defensivetestimony, it is unlikely that he will draw the permitted inference beyond areasonable doubt. To the extent to which the defensive testimony isdisbelieved, the likelihood that the inference will be drawn becomesproportionately greater. The interplay of these possibilities is handled by theappropriate allocation of the heavy burden of persuasion to the State. This isthe sum total of the constitutional protection in this regard to which adefendant is entitled.
Niziolek, 380 Mass. at 521-522.
The defendant in Gilbert v. State was convicted offirst-degree murder. Gilbert at 197-198. The issue in Gilbert was how the statemay prove a negative element of the crime and what type of evidence is legallysufficient in terms of negating self-defense and negating mitigation throughprovocation. Id. at 198. The Gilbert court explained that a homicide ispresumed to be unjustified until the defendant produces some evidence of eitherself-defense or mitigation, at which point the state assumes the burden ofdisproving, beyond a reasonable doubt, the defensive issue which has beengenerated. Id. at 200.
This same burden-shifting analysis is applied in thiscommonwealth, Commonwealth v. Greene, 372 Mass. 517, 519 (1977); Commonwealthv. Rodriquez, 370 Mass. 684, 687-688 and n.5 (1976), and is required by the DueProcess Clause of the U.S. Constitution: "[t]he Due Process Clauserequires the prosecution to prove beyond a reasonable doubt the absence of theheat of passion on sudden provocation when the issue is properly presented in ahomicide case." Mullaney v. Wilbur, 421 U.S. 684, 704 (1975). When readin the context of the entire opinion, it is clear that the words, "thetruth of the inference beyond a reasonable doubt," refer solely andexclusively to a specific inference that the defendant did not act withreasonable provocation, an element of the crime charged which it is thecommonwealth's burden to disprove beyond a reasonable doubt. See Commonwealthv. Acevedo, 427 Mass. 714, 717 (1998).
The Gilbert court never considered any type of"missing witness" inference and was concerned only with the type ofburden placed upon the prosecution in proving a negative inference which is anelement of the crime. Gilbert at 208. The Gilbert court explained that adefendant is not required to prove anything in a constitutional sense after hehas produced mitigating evidence. Id. at 208. The burden of persuasion isinstead properly placed on the state to disprove the existence of mitigation.Id. at 208 Inferences of facts that are not elements of the crime were neverconsidered in Gilbert. A fair reading of Niziolek, also shows that the SJC neverintended the quote from Gilbert to stand for the proposition that, in this commonwealth,a jury must be instructed that it should not draw an adverse inference from thedefendant's failure to call a certain witness unless it was persuaded ofthe truth of the inference beyond a reasonable doubt.
The court in Niziolek, sought to refute thedefendant's contention that by asking the jury to draw an adverseinference from the defendant's failure to call a witness, thecommonwealth was effectively shifting the burden of proof to the defendant. Byquoting Gilbert, the SJC in Niziolek, was setting forth the analysis of howplacing the burden on the state to "prove a negative" does notnecessarily compel the defendant to affirmatively prove the opposite, andthereby impermissibly shift the burden of proof to him. In all cases, the commonwealthbears the burden of proving each and every element of the crime beyond areasonable doubt. In re Winship, 397 U.S. 358, 364 (1970); Mullaney v. Wilbur,421 U.S. 684 (1975). So long as the commonwealth bears this burden, inferencesadverse to the defendant are permitted under the same standard as otherreasonable inferences. The late SJC Chief Justice Paul J. Liacos, in hisHandbook of Massachusetts Evidence, acknowledged as much when he quotedProposed Mass. R. Evid. 302(c):
Whenever the existence of a presumed fact against theaccused is submitted to the jury, the court shall instruct the jury that it mayregard the basic facts as sufficient evidence of the presumed fact but is notrequired to do so. In addition, if the presumed fact establishes guilt or is anelement of the offense or negatives a defense, the court shall instruct thejury that its existence, on all the evidence, must be proved beyond areasonable doubt.
Paul J. Liacos, Handbook of Massachusetts Evidence §5.9 at 246-247 (6th ed. 1994) (emphasis added)
The "reasonable doubt" language in the Gilbertquote need not have misled, as Niziolek, goes on to approvingly quote the trialjudge's instruction to the jury regarding the missing witness. Niziolek,,380 Mass. at 524-525. That instruction does not advise the jury that theinference may only be drawn if they are persuaded of either the truth of theinference, or the underlying facts, beyond a reasonable doubt. Id. This courtshould make clear the true holding of Niziolek, in regard to inferences drawn fromthe failure of a defendant to call a witness, and dispel any misunderstandingof the burden of proof on inferences.
In sum, Niziolek, did not hold that the commonwealth couldonly make the missing witness inference after a showing of proof beyond a reasonabledoubt. Statements to this effect in subsequent opinions are likely erroneous,or simply disingenuous. The source of the confusion lies in Commonwealth v.Olszewski, 416 Mass. 707, 724 n.18 (1993), which cites Niziolek, as authorityfor the proposition that the commonwealth must prove the truth of the inferencebeyond a reasonable doubt. Although Olszewski, offered no analysis in support ofits presumed holding and new rule of law, other courts soon followed suit.Johnson, 39 Mass. App. Ct. at 413; Commonwealth v. McQuaide, No. 96-P-1478(Mass. App. Ct. May 25, 1999). (Both Johnson and McQuaide cite Olszewski,, 416Mass. at n. 18, as authority for the proposition that the commonwealth mustprove the truth of the missing witness inference beyond a reasonable doubt.)
In fact, before Olszewski,'s citation to Niziolek, in1993, no Massachusetts case dealing with the missing witness inferencediscusses the inference in terms of reasonable doubt. See, e. g., Commonwealthv. Finnerty, 148 Mass. 162 (1989); Commonwealth v. O'Rourke, 311 Mass.213 (1942); Commonwealth v. DiCaro, 359 Mass. 388 (1970); Commonwealth v.Franklin, 366 Mass. 284 (1974); Commonwealth v. Bryer, 398 Mass. 9 (1986).
Upon a careful reading of the opinion in its entirety, itcan fairly be said that Niziolek, neither explicitly states, nor implicitlyholds, that a fact finder may only draw the inference if persuaded of its truthand the truth of the underlying facts beyond a reasonable doubt. The missingwitness inference is an ordinary evidentiary inference which need only bereasonable and warranted by the evidence. See Commonwealth v. Thomas, 429 Mass.146, 154 (1999) (stating Niziolek,'s citation to Gilbert v. State asstanding for the proposition that prosecution's comment regarding thedefendant's failure to call a certain witness does not unconstitutionallyshift the burden of proof to the defendant, and holding that prosecutor'scomments and judge's instruction regarding the missing witness"only provided the jury with the option of drawing a certain factualinference if they found that the evidence warranted it"). This was theholding, properly understood, of Commonwealth v. Niziolek, and that holdingshould be so recognized as the law of the commonwealth, or the SJC should givea reason as to why it should not be.
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