holding that a party may always comment on the fact that an opponent failed to call an available witness, or argue a witness was not called because testimony would be unfavorable
How later courts described this case
- holding that a party may always comment on the fact that an opponent failed to call an available witness, or argue a witness was not called because testimony would be unfavorable
- stating party may always comment on fact that opponent failed to call available witness and argue witness was not called because testimony would be unfavorable
- discussing when an expert is a "testifying" expert rather than a "consulting" expert and holding that the parties to a criminal proceeding may seek information about the opposing side's testifying experts and their opinions
- noting “party may always comment on the fact that the opponent failed to call an available witness and then argue ‘Don’t you know, if Mr. X had anything favorable to say, my opponent would have called him.’”
Written by the judges who cited it.
The opinion
JOHNSON, J.,
filed a concurring opinion.
I concur' in the judgment of this Court, but not its reasoning. It is permissible to argue to the jury that the defendant did not present witnesses to contradict testimony offered by the state. It is not permissible to select a potential, but uncalled, witness such as Dr. Benjamin, tout his knowledge, experience, and standing among his colleagues and then argue, solely because the defendant did not call him as a witness (a circumstance that could have many causes), that even that eminent scholar did not dispute the state’s evidence. Such tactics constitute bolstering of the testimony of the state’s witnesses. The trial court erred in admitting such testimony and in failing to curtail the state’s argument about it. The court of appeals was correct in finding error and that the error was statutory and harmless. Tex.R.App. P. 44.2(b). I would affirm the judgment of the court of appeals and its reasoning.