TITLE ELEVEN — MISCELLANEOUS RULES
Rule 1106. Missing Witness
Argument by Counsel. Counsel is not permitted to make a missing-witness argument without first obtaining judicial approval; if approval is granted, the court must give a missing witness instruction.
Jury Instruction. The court may instruct the jury that an adverse inference may be drawn from a party’s failure to call a witness when:
the witness is shown to be available;
the witness is friendly, or at least not hostile, to the party;
the witness is expected to give noncumulative testimony of distinct importance to the case; and
there is no logical or tactical explanation for the failure to call the witness.
Procedure for Seeking Approval. A party seeking to make a missing-witness argument shall apply to the court before argument begins and outside the hearing of a jury, if one is impanelled. The application shall identify the witness by username, shall state the evidence establishing each condition of Rule 1106(2), and shall state the inference to be argued. The court shall rule before argument and shall state its findings upon the record.
Availability. A witness is available within Rule 1106(2)(a) where the party could have procured the witness’s attendance, considering whether the witness’s username is known; whether the witness is reachable by direct message or in the proceeding communications; whether the witness could have been summoned by subpoena under Rid. R. Civ. P. 32 or Rid. R. Crim. P. 17; and whether the witness has appeared in the proceeding. A witness is not available where the witness is unavailable within the meaning of Rule 804(1), where the witness is beyond the reach of the court’s process, or where the witness has been summoned and has not appeared and the party has sought the court’s aid.
Peculiar Availability. In determining whether a witness is friendly or not hostile within Rule 1106(2)(b), the court shall consider the witness’s relationship to the party, whether the witness is an employee, agent, family member, or associate of the party, and whether the witness is peculiarly within the party’s power to produce. A witness equally available to both parties ordinarily supports no inference against either.
Explanation. A party against whom the argument is sought may state, outside the hearing of a jury, the logical or tactical explanation for not calling the witness. The court shall consider the explanation in ruling and shall not require the party to disclose privileged matter in giving it. Where a satisfactory explanation is given, the court shall refuse the application.
Limits in a Criminal Case. Counsel shall not argue, and the court shall not instruct, that an inference may be drawn from:
the defendant’s failure to testify;
the defendant’s failure to call any witness, where the argument would shift or appear to shift the burden of proof;
the invocation of a privilege by any person; or
the defendant’s failure to produce evidence which the State bears the burden to produce.
The State may seek an instruction under this rule only where the witness is peculiarly available to the defendant and the instruction can be given without impairing the presumption of innocence or the State’s burden.
Bench Trial. In a bench trial, no instruction is given. A party seeking to argue a missing-witness inference shall obtain the court’s approval under Rule 1106(3), and the court shall state in its findings whether it draws the inference and upon what basis. The limits stated in Rule 1106(7) apply.
Scope of Argument. Where approval is granted, the argument shall be confined to the inference the court has permitted and shall not assert what the absent witness would have said.