holding that a prosecutor’s comments that police officers' testimony was corroborated while defendant’s testimony was not did not shift the burden of proof to the defense, but “merely conveyed to the jury that when 'evaluating the credibility of a witness, corroboration or a lack thereof of the testimony should be considered."
How later courts described this case
- holding that a prosecutor’s comments that police officers' testimony was corroborated while defendant’s testimony was not did not shift the burden of proof to the defense, but “merely conveyed to the jury that when 'evaluating the credibility of a witness, corroboration or a lack thereof of the testimony should be considered."
- explaining that such an adverse inference from a party’s failure to call a witness is permissible only when it is demonstrated both that the witness was "peculiarly available” to the party and that the witness’s testimony would "elucidate the ■ transaction”
- stating that prosecution may respond to defense counsel’s closing suggestion that police were lying
- prosecutor may respond in rebuttal to issues raised by defense counsel's closing arguments
Written by the judges who cited it.
The opinion
WAGNER, Associate Judge,
concurring in part and dissenting in part:
I concur in the result reached by the court, and I agree with much of its reasoning. My disagreement goes only to the *166 court’s determination that error occurred when the prosecutor failed to obtain an advance ruling from the trial court before cross-examining appellant about the existence and availability of claimed witnesses. In my opinion, neither the missing witness rule nor reasons of fairness requires a preview and prior ruling on proper foundational questions propounded to support a missing witness argument or instruction.
The Gass rule, which forms the underpinnings of the court’s finding of error, established that advance permission must be obtained from the court before counsel for either side argues to the jury that an adverse inference may be drawn from the witness’ absence. Gass v. United States, 135 U.S.App.D.C. 11, 19 , 416 F.2d 767, 775 (1969). In Gass , the prosecutor argued the adverse inference from the failure of Gass to call eight witnesses who allegedly had information crucial to his defense. Id. However, the availability of the witnesses had not been explored during testimony. Id. Therefore, one of the two essential requirements for making the missing witness argument or obtaining the missing witness instruction (i.e., peculiar availability to the party against whom made) had not been established. See Graves v. United States, 150 U.S. 118, 121 , 14 S.Ct. 40, 41 , 37 L.Ed. 1021 (1893); Lemon v. United States, 564 A.2d 1368, 1375 (D.C.1989). The rationale for a preliminary ruling before argument is to guard against the improper use of an adverse inference where the evidentiary foundation is lacking. See Gass, 135 U.S.App.D.C. at 19 , 416 F.2d at 775 . However, nothing in the Gass decision suggests that a preliminary ruling would be required before cross-examining a party in an effort to establish a basis for a missing witness argument or instruction about claimed witnesses disclosed during trial.
Subsequently, the holding in Gass evolved here into the rule that it is error for the prosecutor to suggest to the jury through cross-examination that the testimony of a missing witness would have been adverse. Chappell v. United States, 519 A.2d 1257, 1259 (D.C.1987); Sherrod v. United States, 478 A.2d 644, 654 (D.C. 1984). This rule prevents counsel from suggesting through questioning what he or she is precluded from arguing without laying the proper foundation and obtaining an advance ruling from the court on the adequacy of the evidentiary predicate. Cross-examination which simply explores the existence and peculiar availability of a witness to the adverse party, essentially foundation questioning which is not phrased in a manner suggesting that the absent witness’ testimony would have been unfavorable, is not precluded under Chappell and Sherrod . In my view, the challenged cross-examination here did not exceed these bounds.
Of course, this court has also held that it is error, without prior court approval, to make an incomplete missing witness argument to the jury, i.e. one which notes the absence of the witness without urging the adverse inference. Arnold v. United States, 511 A.2d 399, 416 (D.C.1986). The rationale for the holding is said to be that essentially such an argument ordinarily is one which suggests that the jury may conclude that the testimony would have been adverse to the party who fails to call the witness. Id. Again, the prohibition is against only arguments having the effect of suggesting the adverse inference. Prior court approval under these circumstances is deemed to assure that the foundational requirements are met and the propriety of the argument ruled upon before adverse inferences are suggested to the jury through argument. Id. It is for the court to determine in the first instance whether the jury can appropriately deduce the adverse fact from the evidence, 1 retaining the discretion to permit the argument or instruction on the adverse inference even if the two preconditions for it are met. Price *167 v. United States, 531 A.2d 984 , 993 n. 16 (D.C.1987); German v. United States, 525 A.2d 596, 611 (D.C.1987), cert. denied, 484 U.S. 944 , 108 S.Ct. 331 , 98 L.Ed.2d 358 (1987). Cross-examination which simply probes the existence and availability of witnesses suggested by a defendant does not create a presumption or unfairly suggest an adverse inference to the jury. Thus, the rationale underlying Arnold does not command a preliminary ruling under those circumstances.
Although we took the Gass and Arnold rules a step further in Price, supra, 531 A.2d 984 , one step too far in my opinion, the Price decision again found error only in cross-examination which suggests “that the missing witnesses would have provided unfavorable testimony.” Id. at 994 . In Price , the questioning went beyond typical foundation questions. In questioning and final argument, the prosecutor suggested that the absent witnesses, who could provide the only corroboration for Price’s alibi, were available and, in the court’s view, suggested an adverse inference. Id. at 993 . 2 The prosecutor did not go so far in this case. Rather, he sought to ascertain whether appellant knew the name, address or how to locate the claimed witness, and whether he made an effort to get them to court.
In my opinion, the potential harm associated with an incomplete missing witness argument is not present when proper foundation questions regarding the existence and availability of witnesses are posed during cross-examination. 3 On the other hand, a defendant, prosecutor or other party who interjects in testimony a previously undisclosed witness opens the door to inquiry about the claimed witness’ existence and availability. To leave such disclosures immune from the test of cross-examination, absent exceptional circumstances, will more likely leave the impression with the jury that claimed witnesses exist who corroborate the events as portrayed by the testifying party, thereby unfairly prejudicing the other side. Since such questioning is within the permissible limits of cross-examination, special permission should not be required to conduct it. The requirement that such foundational questions be previewed unnecessarily undermines the means by which the witness’ credibility is tested during cross-examination. See In re W.A.F., 407 A.2d 1062, 1067 (D.C.1979); see also Letsinger v. United States, 402 A.2d 411, 415 (D.C.1979). Such preliminary reviews unduly restrict the spontaneity of answers elicited during cross-examination and, therefore, should be required only when necessary to avoid placing excludable evidence before the jury.
Evidence bearing on the existence and availability of potential witnesses mentioned by a party during cross-examination is not generally excludable on evidentiary grounds. In requiring a prior ruling on such questioning, we have come a long way from the Gass rule and the sound reasoning supporting it. See Gass, supra, 135 U.S.App.D.C. at 19 , 416 F.2d at 775 . It is a distance the federal circuits have not gone. 4 In characterizing such questions as even harmless error, the grounds are laid for *168 repetitive revisitation of the issue in future cases. In my opinion, the preview required before foundational questioning goes far beyond what is necessary to meet the potential harm sought to be averted in Chap-pell and Sherrod or to assure a fair trial to both sides. Therefore, I respectfully dissent from that portion of the opinion which holds that an advance ruling must be obtained from the court before cross-examining a witness to lay a foundation for a missing witness argument or instruction where that questioning does not suggest that an adverse inference may be drawn from failure to produce the witness. 5
. If the missing witness instruction is given, the jury determines ultimately whether a witness who could have elucidated the transaction was peculiarly available to a party and whether his absence was sufficiently accounted for before deciding whether to infer that the testimony of the witness would have been unfavorable. See Criminal Jury Instructions for the District of Columbia, No. 2.41 (3d ed. 1978).
. In Price , the trial court ultimately denied the missing witness instruction because the three missing witnesses were equally available to both sides. Price, supra, 531 A.2d at 992 .
. That is not to say that there will not be circumstances under which a prior ruling might be required to avoid undue prejudice (e.g., missing witnesses having potential privilege). Under such circumstances, a preliminary examination and ruling can be obtained as in the case of other potentially excludable, prejudicial evidence.
. A search for cases in the federal circuits which extend the Gass rule to advance rulings on foundation questions was unavailing. In the federal circuits, comments on a defendant’s failure to call witnesses are analyzed in terms of whether the comments implicate the defendant’s right to remain silent or constitute an effort to shift the burden of proof. See United States v. Johnson, 713 F.2d 633, 651 (11th Cir.1983), cert. denied, 465 U.S. 1081 , 104 S.Ct. 1447 , 79 L.Ed.2d 766 (1984); United States v. Hager, 505 F.2d 737, 740 (8th Cir.1974); United States v. Gotchis, 803 F.2d 74, 81 (2nd Cir.1986). The prosecutor is free to comment upon the defense’s failure to call any witnesses so long as the comments are not subject to interpretation as a comment on the defendant’s failure to testify. Gotchis, 803 F.2d 74 ; see also United States v. White, 794 F.2d 367, 370 (8th Cir.1986).
. To the extent that Price, supra, 531 A.2d 984 is subject to an interpretation to the contrary, in my opinion, the en banc court should overrule it.