Hines v. Saint Vincent's Medical Center

Palmer, J.,

concurring. I fully agree with the majority opinion and with the concurring opinion of Justice Borden. I write separately only to express my doubts about the continuing vitality of the “missing witness” rule, first announced by this court in Secondino v. New Haven Gas Co., 147 Conn. 672 , 165 A.2d 598 (1960). As Professor Tait has stated, “[n]ot only does [the rule] consume an undue proportion of the attention of [Connecticut’s] appellate courts, its underlying premise has been substantially undermined. The rule originated at a time when parties ‘vouched’ for the veracity of their witnesses so that an opponent dared not call an adverse witness. Since a partial witness would be called only by the favored party, that party’s failure to call the witness, if available, warranted a negative inference. The voucher rule no longer applies in Connecticut. Under Connecticut’s modern rules a party may call an adverse witness, including the opposing party. If an adverse witness is called, the party calling that witness may use leading questions to interrogate the witness and, if necessary, to impeach the witness. In addition, Connecticut permits widespread discovery so that all parties know, and may depose, all relevant witnesses before trial. Thus, each party should in fact know which witnesses are favorable to which side. That being so, why should a party not be required to call any witness favorable to his cause? If a witness is available, he is equally available to both sides. If a witness has information favorable to one side, why shouldn’t that side call that witness and bring out that information instead of relying on a negative inference based on ignorance that such a *645 witness might have some unspecified information that might be unfavorable to the other party? See Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044, 1046-1048 (5th Cir. 1990). Moreover, the Secondino rule is costly. It consumes the time of both the court and the parties, and it incurs expense even for parties who do not wish to call a witness, since they must nevertheless pay to have witnesses available to preclude the assertion of an adverse inference.” C. Tait & J. LaPlante, Connecticut Evidence (Sup. 1994) § 11.5.4, pp. 150-51.

Although there may be some reason to retain the “missing witness” rule, the issues raised by Professor Tait indicate that the rule may very well have outlived its usefulness. While I agree that we need not, and should not, decide in this case whether Secondino should be overruled, that question warrants the careful consideration of this court in the appropriate case.