abandoning missing witness rule set forth in Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 [1960], but concluding that trial court’s *88 missing witness instruction was harmless error on facts of case
How later courts described this case
- abandoning missing witness rule set forth in Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 [1960], but concluding that trial court’s *88 missing witness instruction was harmless error on facts of case
- abandoning missing witness charge in criminal cases for fear that it would “tip the scales against the party,” but continuing to allow counsel to argue for inference in summation
- concluding that “the rule should be abandoned in criminal cases”
- abandoning missing witness rule in criminal cases but concluding that application of rule in that case constituted harmless error
Written by the judges who cited it.
Distinguished
Distinguished by State v. Colon, 272 Conn. 106 (2004)
” Id., 739. Malave is inapposite to the facts of the present case, however, inasmuch as defense counsel sought to comment on the failure of the state to call a witness in rebuttal of the defense.
The opinion
CALLAHAN, C. J.,
concurring. I concur with the result reached in the majority opinion. I write separately, however, because I do not think it is either necessary or desirable to require a party who intends to mention during closing argument the failure of an adversary to call a witness to notify the court and the opposing party in advance. It seems to me that it is always a proper argument to point out a lack of evidence and, as long as the jury is not asked to draw an inference, it is fair comment to bring to the jury’s attention the absence of a witness to support the opposition’s theory of the case.