Legal Definitions - missing-witness rule

The missing-witness rule is a legal principle that allows a jury or judge to draw a negative conclusion when a party in a lawsuit fails to call a particular witness to testify. This rule applies when a witness is uniquely available to one side, and their testimony would be relevant and admissible in court. If that party chooses not to present such a witness, the jury may infer that the witness's testimony would have been unfavorable or damaging to that party's case. Essentially, it suggests that if the witness's testimony were helpful, the party would have presented it.

Here are some examples to illustrate the missing-witness rule:

• Personal Injury Lawsuit: Imagine a car accident case where the defendant claims their brakes suddenly failed, causing the collision. The defendant had their car serviced by a specific mechanic just two days before the accident. This mechanic is still in business and is known to the defendant, making them uniquely available to testify for the defense. However, the defendant's lawyer chooses not to call the mechanic as a witness.

  How it illustrates the rule: The jury might apply the missing-witness rule. They could infer that if the mechanic's testimony truly supported the claim of sudden brake failure, the defendant would have called them. The failure to call the mechanic could lead the jury to believe that the mechanic's testimony would have revealed the brakes were in good working order, or that the defendant had neglected maintenance, which would weaken the defendant's defense.

• Criminal Trial (Alibi Defense): A defendant is on trial for a robbery that occurred at 9 PM. The defendant claims they were at home with their roommate watching a movie at that exact time. The roommate is available and willing to testify, but the defense attorney decides not to call the roommate to corroborate the alibi.

  How it illustrates the rule: The prosecution could ask the jury to consider the missing-witness rule. If the roommate's testimony would genuinely confirm the defendant's alibi, it would be a crucial piece of evidence for the defense. The fact that the defense did not call the roommate might lead the jury to infer that the roommate's testimony would not have supported the alibi, or might even have contradicted it, thereby making the defendant's alibi less credible.

• Employment Discrimination Case: An employee sues their former employer for wrongful termination, alleging age discrimination. The employer claims the termination was solely due to the employee's poor performance. The employee's direct supervisor, who was responsible for all performance reviews and the ultimate termination decision, is still employed by the company and has direct knowledge of the situation. The employer's legal team, however, does not call the supervisor to testify.

  How it illustrates the rule: The jury could apply the missing-witness rule. Since the supervisor is a key figure with firsthand knowledge and is still employed by the defendant company, they are uniquely available to the employer. If the supervisor's testimony would strongly support the employer's claim of performance-based termination, the employer would likely present it. The failure to call the supervisor could lead the jury to infer that the supervisor's testimony might have revealed discriminatory motives or contradicted the employer's stated reasons, thus harming the employer's defense against the discrimination claim.