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2.4-6 Failure to Produce Witness
Revised to December 1, 2007
Note: This instruction has been deleted.
Commentary
In State v. Malave, 250
Conn. 722, 738 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed.
2d 1099 (2000), the Connecticut Supreme Court revisited the missing witness rule
of Secondino v. New Haven Gas Company, 147 Conn. 672 (1960), which
allowed a jury to draw an adverse inference from the failure of a party to call
a particular witness, and concluded that "the time has come to abandon the
missing witness rule." Our Appellate Court "has decided that Malave
applies retroactively." State v. Saez, 60 Conn. App. 264, 265 n.1, cert.
denied, 255 Conn. 905 (2000); see also State v. Mitchell, 59 Conn. App.
523, 526 (2000), cert. denied, 256 Conn. 901 (2001); State v. Quinones,
56 Conn. App. 529, 533 (2000).