Missing Witness Instruction: Boilerplate Rules in Federal Criminal Cases
When federal prosecutors fail to call an important witness at trial, the defense may want the jury to infer that the witness’s testimony would have hurt the government’s case.
That is the purpose of a missing witness instruction.
But the government’s failure to call a witness does not automatically entitle a defendant to the instruction. Federal courts impose significant requirements before allowing the jury to draw an adverse inference from a witness’s absence.
The issue arises frequently when the missing witness is a confidential informant who participated in or witnessed the alleged crime.
What Is a Missing Witness Instruction?
A missing witness instruction permits the jury, in appropriate circumstances, to infer that an absent witness would have provided testimony unfavorable to the party that had the ability to produce the witness.
In federal criminal cases, however, courts generally treat the instruction cautiously.
The defendant ordinarily must establish that the missing witness could provide relevant, noncumulative testimony and that the witness was peculiarly within the government’s power to produce.
The defense cannot obtain the instruction merely by pointing out that prosecutors chose not to call someone.
The Missing Witness Must Have Relevant, Noncumulative Testimony
The first question is whether the missing witness actually has something important to say.
A witness who personally observed the alleged crime may satisfy this requirement because they possess firsthand knowledge of the disputed issue.
But testimony that merely repeats evidence already before the jury may not justify a missing witness instruction.
This issue becomes particularly important with confidential informants.
An informant may be the only person other than the defendant who participated in a controlled drug transaction, recorded conversation, undercover meeting, or other critical event.
In those circumstances, the informant’s testimony may be highly relevant.
The Witness Must Be Within the Government’s Power to Produce
Relevance alone is not enough.
The defense also must address whether the witness was peculiarly within the government’s power to produce.
A witness may satisfy this requirement when the witness is physically available only to the government or has a relationship with the government that effectively makes the witness unavailable to the defense.
But simply labeling someone a government informant does not automatically establish that the witness is exclusively available to prosecutors.
The witness’s actual relationship and availability matter.
United States v. Tavarez: The Missing Confidential Informant
In United States v. Tavarez, 626 F.3d 902 (7th Cir. 2010), a confidential informant participated in two controlled purchases of methamphetamine from the defendant.
The informant was the only person who directly observed what occurred during the transactions.
Before trial, however, the informant disappeared.
Both the prosecution and defense attempted unsuccessfully to locate her.
The defendant requested a missing witness instruction permitting the jury to infer that the informant’s testimony would have been unfavorable to the government.
The Seventh Circuit upheld the trial court’s refusal to give the instruction.
Although the informant possessed relevant firsthand information, she was unavailable to both sides.
Her previous status as a confidential informant did not, by itself, establish that she remained within the government’s exclusive control.
The case demonstrates an important rule:
A missing confidential informant does not automatically justify a missing witness instruction.
United States v. Wright: Favorable Testimony Cannot Be Speculation
The Seventh Circuit revisited the issue in United States v. Wright, 722 F.3d 1064 (7th Cir. 2013).
Michael Wright was convicted of distributing cocaine and sentenced to 150 months in federal prison.
A confidential informant had participated in the investigation but did not testify at trial.
Wright requested a missing witness instruction, arguing that the jury should be permitted to draw an adverse inference from the government’s failure to call the informant.
The district court refused.
The Seventh Circuit affirmed.
The Defendant Must Show the Missing Testimony Would Actually Help
Wright illustrates an additional limitation of the missing-witness instruction.
It is not enough to establish that an absent witness knows something about the case.
The defense must make a nonspeculative showing that the missing testimony would actually be favorable to the defendant.
Wright could not do that.
Although the informant had witnessed an important transaction, Wright could not identify favorable testimony that the informant was expected to provide.
Without such a showing, allowing an adverse inference against the government would amount to speculation.
The missing witness instruction exists to address situations where a defendant has been unfairly deprived of favorable testimony. If there is no reason to believe favorable testimony exists, the justification for the instruction disappears.
Government Control Over a Witness Matters
Another important question is whether the government has a practical advantage in producing the witness.
The fact that someone previously cooperated with prosecutors does not necessarily establish government control.
The Seventh Circuit has recognized that a witness may be unavailable in a practical sense because of the witness’s relationship with one side. But that determination requires examination of the actual circumstances.
Important questions include:
- Is the witness physically available?
- Does the government know where the witness is?
- Can the defense subpoena the witness?
- Is the witness cooperating with prosecutors?
- Does the witness have an ongoing agreement with the government?
- Does the witness have a reason to favor the prosecution?
- Has the government made the witness effectively inaccessible to the defense?
The label confidential informant does not answer those questions by itself.
The Government’s Failure to Call Its Informant Is Not Enough
Defense attorneys should be careful not to assume that the government’s decision not to call its own informant automatically creates an adverse inference.
Sometimes prosecutors decide that an informant is unnecessary.
Other times the informant may have credibility problems, criminal exposure, drug use, inconsistent statements, cooperation agreements, or other impeachment material.
Those circumstances may be extremely valuable to the defense.
But they do not automatically satisfy the requirements for a missing witness instruction.
The defense must establish the factual and legal foundation for the requested instruction.
The Missing Witness May Create Other Defense Issues
Even when the judge refuses to give a missing-witness instruction, the absence of an important government witness may still create other significant defense issues.
The defense should investigate:
- Whether the government disclosed the informant’s identity
- Whether the informant can be located
- Whether the defense can subpoena the informant
- Whether the government possesses favorable or impeachment evidence concerning the informant
- Whether recordings document the informant’s interactions with the defendant
- Whether law enforcement officers personally observed the alleged transaction
- Whether the remaining evidence is sufficient to prove the offense beyond a reasonable doubt
- Whether the government’s explanation for not calling the witness can be challenged
A missing witness instruction is therefore only one part of the defense analysis.
Missing Informants Can Be Critical in Federal Drug Cases
Confidential informants play an enormous role in federal criminal investigations, particularly drug prosecutions.
They may introduce undercover agents, conduct controlled purchases, record conversations, provide information for search warrants, and become the government’s primary source of information about the defendant.
Yet informants may also have powerful reasons to cooperate.
Some are paid. Some are facing their own criminal charges. Others hope to receive reduced sentences or other benefits.
When an informant disappears or the government decides not to call that person at trial, the defense should determine why.
The answer may affect the missing witness instruction, cross-examination of government agents, disclosure obligations, sufficiency of the evidence, or the defense theory at trial.
Federal Criminal Defense Attorney Michael J. Petro
The government should not be permitted to build a federal criminal prosecution around a confidential informant and then automatically receive the benefit of every favorable inference when that informant does not appear at trial.
But obtaining a missing witness instruction requires more than pointing to an empty witness chair.
The defense must establish why the witness matters, what favorable evidence the witness could provide, and why the government had a superior ability to produce that witness.
If the government’s case depends on a confidential informant or another critical witness who suddenly does not appear at trial, call federal criminal defense attorney Michael J. Petro to challenge the government’s evidence and protect your right to a fair trial.