Instruction 3.500, Criminal Model Jury Instructions for Use in the District Court

ABSENT WITNESS

The judge may not give such an instruction, nor permit counsel to comment on the potential inference,

unless the judge has first ruled, as a matter of law, that there is a sufficient foundation for such an

inference in the record. See notes 1 and 2, below.

In this case, you have heard some reference to a potential witness

who did not testify.

I. WHERE DEFENSE DOES NOT CALL WITNESS

If the defendant in this case did not call a potential witness to testify,

and four conditions are met, you may infer that the witness’s testimony

would not be favorable to the defendant. The four conditions are:

First: that the Commonwealth’s case against the defendant is strong;

Second: that the absent witness would be expected to offer important

testimony that would support the defendant’s innocence;

Third: that the absent witness is available to testify for the defendant;

and

Fourth: that the witness’s absence is not explained by any of the

other circumstances in the case.

If any of these four conditions has not been met, then you may not

draw any inference from the witness’s absence. If all four conditions have

been met, you may infer that the testimony would not be favorable to the

defendant if such an inference is reasonable in this case, and you are

persuaded beyond a reasonable doubt that the inference is true.

This rule is based on common sense. First, you may not draw such

an inference unless the Commonwealth presented a case strongly

supporting guilt because under those circumstances it would be natural for

an accused person to call an available witness to testify in his (her) favor.

However, keep in mind that a defendant never has any burden to prove

himself (herself) innocent and the Commonwealth bears the entire burden

of proving his (her) guilt.

Second, you may not draw such an inference unless the absent

witness’s testimony would be relevant to the defendant’s guilt or innocence

in some significant way. Normally an accused person would have no

reason to bring in a witness who would only testify about minor details, or

who would only repeat what has already been said by other witnesses.

Third, you may not draw such an inference unless there is evidence

that the accused was able to bring the absent witness into court.

And fourth, you may not draw such an inference if the evidence

suggests another reasonable explanation for the witness’s absence.

A version of this instruction was affirmed in Commonwealth v. Rollins, 441 Mass. 114, 120, 803

N.E.2d 1256, 1261 (2004), and in Commonwealth v. Graves, 35 Mass. App. Ct. 76, 80 n.6, 616

N.E.2d 817, 820 n.6 (1993). In the case of a defense failure to call a witness, the jury should be

instructed that they “should not draw an adverse inference from the defendant’s failure to call a certain

witness unless they were persuaded of the truth of the inference beyond a reasonable doubt.”

Commonwealth v. Olszewski, 416 Mass. 707, 724 n.18, 625 N.E.2d 529, 540 n.18 (1993), cert.

denied, 513 U.S. 835 (1994).

II. WHERE COMMONWEALTH DOES NOT CALL WITNESS

If the Commonwealth did not call a potential witness to testify, and

four conditions are met, you may infer that the witness’s testimony would

not be favorable to the Commonwealth. The four conditions are:

First: that the Commonwealth’s case against the defendant is

sufficiently weak that it would normally be expected to call that witness to

testify;

Second: that the absent witness would be expected to offer important

testimony that would support the Commonwealth’s case;

Third: that the absent witness is available to testify for the

Commonwealth; and

Fourth: that the witness’s absence is not explained by any of the

other circumstances in the case.

If any of these four conditions has not been met, then you may not

draw any inference from the witness’s absence. If all four conditions have

been met, you may infer that the witness’s testimony would not be

favorable to the Commonwealth if that is a reasonable conclusion in the

circumstances of this case.

This rule is based on common sense. First, you may not draw such

an inference unless the Commonwealth’s case was sufficiently weak that it

would be expected to bring in the absent witness.

Second, you may not draw such an inference unless the absent

witness’s testimony would be relevant to the defendant’s guilt or innocence

in some significant way. Normally the Commonwealth would have no

reason to bring in a witness who would only testify about minor details, or

who would only repeat what has already been said by other witnesses.

Third, you may not draw such an inference unless there is evidence

that the Commonwealth was able to bring the absent witness into court.

And fourth, you may not draw such an inference if the evidence

suggests another reasonable explanation for the witness’s absence.

SUPPLEMENTAL INSTRUCTION

Neutralizing instruction where negative inference not allowed. There has

been mention in this case about a witness named [absent witness] .

As a result of a hearing that I held when you were not in the

courtroom, I have determined that [absent witness] is not

available to be called as a witness by either side in this case.

You may not draw any inference from the fact that [absent witness]

did not appear as a witness.

This supplemental instruction may be used when the judge does not instruct on, or

permit argument about, an absent witness, and the judge wishes to neutralize the

effect of a prior reference to that witness before the jury. It is drawn from

Commonwealth v. Gagnon, 408 Mass. 185, 198 n.9, 557 N.E.2d 728, 737 n.9

(1990).