WPIC 5.20 Failure to Produce Witness

This instruction should be used sparingly. It should be given only when the circumstances meet the requirements outlined in the Comment to this instruction. Use bracketed material as applicable.

Requirements generally. This instruction should be used sparingly. It is error for the trial court to give this instruction unless the evidence meets all of the following requirements: (1) the witness must be peculiarly available to the party; (2) the testimony must relate to an issue of fundamental importance as contrasted to a trivial or unimportant issue; and (3) the circumstances must establish, as a matter of reasonable probability, that the party would not knowingly fail to call the witness in question unless the witness's testimony would be damaging. State v. Montgomery, 163 Wn.2d 577, 183 P.3d 267 (2008).

Assuming the requirements are satisfied, the instruction is available to either the prosecution or the defense. State v. Blair, 117 Wn.2d 479, 816 P.2d 718 (1991).

If the trial court gives the instruction, the party benefitting from the inference stated in the instruction is entitled to re-emphasize the inference during closing argument. When it is the prosecution arguing the point to the jury, however, the prosecution must take particular care to avoid any suggestion that the inference shifts any burden of proof to the defendant. State v. Gregory, 158 Wn.2d 759, 147 P.3d 1201 (2006), overruled on other grounds by State v. W.R., Jr., 181 Wn.2d 757, 336 P.3d 1134 (2014).

Practical implications. As suggested by the requirements summarized above, the instruction should not be given at the request of the defense if the prosecution's missing witness was equally available to the defense to call as a witness. State v. Reed, 168 Wn.App. 553, 278 P.3d 203 (2012).

Similarly, the instruction should not be given at the request of the prosecution if the defendant's missing witness was equally available to the prosecution to call as a witness. State v. Dixon, 150 Wn.App. 46, 207 P.3d 459 (2009).

The requirement of “equally available” is a fact-based determination, made on a case-by-case basis. See, e.g., State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017) (defendant not entitled to missing witness instruction where witness was subject of a material witness warrant and neither State nor defense was aware of the whereabouts of witness); State v. Carter, 74 Wn.App. 320, 875 P.2d 1 (1994), affirmed 127 Wn.2d 836, 904 P.2d 290 (1995) (prosecutor not permitted to argue to jury that defendant did not call witness because she would testify unfavorably to defendant, where defendant unsuccessfully tried to produce witness for trial and, thus, satisfactorily explained witness's absence).

The instruction should not be given if the missing witness would have given testimony that would be relatively insignificant. State v. Montgomery, 163 Wn.2d 577, 183 P.3d 267 (2008) (prosecution not entitled to instruction because defendant's missing witnesses would have given testimony that was relatively insignificant); State v. Dickamore, 22 Wn.App. 851, 592 P.2d 681 (1979) (defendant not entitled to instruction because testimony by State's missing witness would have only been cumulative).

The instruction should not be given if the absence of the witness is due to unforeseen circumstances beyond the control of the parties. State v. Montgomery, 163 Wn.2d 577, 183 P.3d 267 (2008) (witness suffered stroke before trial; no inference arose).