# Arnold v. United States

> District of Columbia Court of Appeals · June 18, 1986 · 511 A.2d 399

URL: https://www.frixlaw.com/law-library/cases/9646549

## Case

- **Full name:** James E. ARNOLD, Appellant, v. UNITED STATES, Appellee
- **Court:** District of Columbia Court of Appeals
- **Decided:** June 18, 1986
- **Citations:** 511 A.2d 399; 1986 D.C. App. LEXIS 357
- **Precedential status:** Published
- **Opinion:** Concurrence by Nebeker
- **Judges:** Nebeker, Terry, Rogers
- **Cited by:** 57 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9646549

## How later opinions describe it (automated extraction)

- 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”
- declining to rule on question of mutual admissibility where trial court based denial of severance on “separate and distinct” rationale, but ultimately finding no prejudice

## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9646549. Public record. Not legal advice.