WPI 5.01 Failure to Produce Evidence or a Witness

Great caution should be used in the giving of this type of instruction. If a “missing witness” instruction is warranted by the evidence, an instruction based on WPIC 5.20 (Failure to Produce Witness), 11 Washington Practice, Washington Pattern Jury Instructions: Criminal (4th ed.) can be given.

Overview. This type of instruction is sometimes referred to as a missing witness or an adverse inference instruction. This type of instruction should be used sparingly. The Comment to WPIC 5.20 (Failure to Produce Witness), 11 Washington Practice, Washington Pattern Jury Instructions: Criminal (4th ed.) contains a detailed discussion of the circumstances under which such an instruction is appropriate.

“It is the general rule that failure to call a witness under a party's control who could testify to material facts justifies an inference that the witness would have testified adversely to the party.” Cook v. Tarbert Logging, Inc., 190 Wn.App 448, 472, 360 P.3d 855, 868 (2015), review denied 185 Wn.2d 1014 (2016) (case involved improper argument based on inference—not use of instruction). However, no civil case has yet required the use of a missing witness instruction. As discussed below, several cases have found that use of such an instruction was error.

Under some circumstances, argument concerning the inference is appropriate, when the use of an instruction would not be. Krieger v. McLaughlin, 50 Wn.2d 461, 313 P.2d 361 (1957) (defendant rested at conclusion of plaintiff's case without introducing any evidence).

Case law. The Washington Supreme Court has not approved the giving of such an instruction in a civil case and twice has held it to be prejudicial error. McFarland v. Commercial Boiler Works, 10 Wn.2d 81, 116 P.2d 288 (1941); Rosenstrom v. North Bend Stage Line, 154 Wash. 57, 280 P. 932 (1929).

In at least four cases, the court has upheld the refusal of the trial court to give this type of instruction. State v. Nelson, 63 Wn.2d 188, 386 P.2d 142 (1963); State v. Baker, 56 Wn.2d 846, 355 P.2d 806 (1960); Wright v. Safeway Stores, 7 Wn.2d 341, 109 P.2d 542 (1941); Norland v. Peterson, 169 Wash. 380, 13 P.2d 483 (1932).

There are so many collateral reasons why a party may not wish to call a particular witness that the WPI Committee believes the matter is better left to the argument of counsel. In Krieger v. McLaughlin, 50 Wn.2d 461, 313 P.2d 361 (1957), the court held that argument on a failure to testify is not prejudicial misconduct, pointing out that in argument to the jury counsel is permitted a very wide sweep and is not confined to the very precise bounds that limit the court's instructions.

The Court of Appeals cited the Comment to this instruction in holding that a trial court did not abuse its discretion in refusing to instruct the jury about a party's failure to produce evidence. See Henderson v. Tyrrell, 80 Wn.App. 592, 612–13, 910 P.2d 522 (1996) (“the trial court reasonably concluded … that [the defendant] had satisfactorily explained his destruction of [the evidence]”). The court suggested in dicta that the standards for failure to produce evidence may be different than for failure to call a witness, Henderson v. Tyrell, 80 Wn.App. at 613, although the state Supreme Court has applied the missing-witness standards in a case involving failure to produce evidence. See Lynott v. National Union Fire Ins. Co. of Pittsburgh, Pa., 123 Wn.2d 678, 689, 871 P.2d 146 (1994).

In Diaz v. Wash. State Migrant Council, 165 Wn.App 59, 86–87, 265 P.3d 956, 970 (2011), the court concluded while, in a civil case, a request for an “adverse inference” instruction can be made at any time, it may appropriately be ordered as a discovery sanction (defendant's assertion of Fifth Amendment privilege against self-incrimination in discovery deprived plaintiff of opportunity for full information).

Criminal cases compared. See WPIC 5.20 (Failure to Produce Witness), 11 Washington Practice, Washington Pattern Jury Instructions: Criminal (4th ed.).