stating “the courts have established these requirements to eliminate the risk that a missing witness argument may add a fictitious weight to one side 18 or another of the case because in a sense it creates evidence from the absence of evidence”
How later courts described this case
- stating “the courts have established these requirements to eliminate the risk that a missing witness argument may add a fictitious weight to one side 18 or another of the case because in a sense it creates evidence from the absence of evidence”
- noting that “the government was careful to keep the evidence of the two crimes separate” and “argued the case to the jury as two separate and distinct occurrences, first reviewing the evidence relating to one and then the evidence relating to the other”
- trial judge did not abuse discretion in denying defendant's request for individual poll of each juror on each count of an indictment where trial judge received note from a juror the day before the jury returned its verdict stating that the juror did not agree with fellow jurors
- no prejudice resulting from joinder of offenses where colloquy between court and jury forewoman showed that jury reached its verdict on two separate counts of armed robbery on two different days during course of deliberations
Written by the judges who cited it.
The opinion
NEBEKER, Associate Judge,
concurring:
I concur in the result reached by my colleagues but not in the harsh character *418 izations of the prosecutor’s conduct. See Powell v. United States, 458 A.2d 412 (D.C.1983), my separate statement. In addition, I cannot agree with the holding of predicate error on the so-called “incomplete missing witness argument” of the prosecutor in Part IV. Given our holding that the “error” was harmless, I see no more reason that “we must decide it” here than there was occasion to “decide it” in our earlier cases. It would seem that my colleagues simply want to decide that the prosecutor must play the child’s game of “Mother, May I” before making the observation that the defense has not presented all of the witnesses. My colleagues assume that something is “wrong” with a mention of the obvious fact that someone is missing. I doubt that assumption, 1 but- in any event, they fail to give any guidance on what the trial judge should consider in granting or denying a request to make the argument. That much they owe the trial judges. I would leave it to counsel to argue whether the jury should infer anything from the unexplained absence of a knowledgeable witness.
. Certainly, inferences can be drawn from absence of evidence. Graves v. United States, 150 U.S. 118 , 14 S.Ct. 40 , 37 L.Ed. 1021 (1893). And in my view the contrary observation is not very well thought out. Burgess v. United States, 142 U.S.App.D.C. 198 , 440 F.2d 226 (1970).