Adverse Inferences From the Failure to Call Witnesses

Adverse Inference A permissive inference (may, not must be drawn) A permissive inference (may, not must be drawn) A presumption of fact, operating at the level of the TOF A presumption of fact, operating at the level of the TOF Based on proof of a basic fact (e.g. witness in control of party, not called) Based on proof of a basic fact (e.g. witness in control of party, not called)

General Rule An adverse inference may be drawn where a party fails to call a witness which one reasonably might expect should be called in support of an allegation or position. An adverse inference may be drawn where a party fails to call a witness which one reasonably might expect should be called in support of an allegation or position. Where that party does not call such a witness, one may infer that if that witness had been called, he or she might not have supported the position taken. Where that party does not call such a witness, one may infer that if that witness had been called, he or she might not have supported the position taken.

In general, a judge will not interfere with counsel’s conduct of a case, such as which witnesses he calls. In general, a judge will not interfere with counsel’s conduct of a case, such as which witnesses he calls. But there are circumstances where, absent an appropriate explanation, a TOL will comment to a TOF about the failure to call an important witness. But there are circumstances where, absent an appropriate explanation, a TOL will comment to a TOF about the failure to call an important witness.

Civil Case from 1774 “It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.” “It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.”

This principle is applicable to criminal cases. This principle is applicable to criminal cases.

The application of this maxim has led to a well- recognized rule that the failure of a party or a witness to give evidence, which it was in the power of the party or witness to give and by which the facts might have been elucidated, justifies the Court in making the inference that the evidence of the party or witness would have been unfavourable to the party to whom the failure was attributed. The application of this maxim has led to a well- recognized rule that the failure of a party or a witness to give evidence, which it was in the power of the party or witness to give and by which the facts might have been elucidated, justifies the Court in making the inference that the evidence of the party or witness would have been unfavourable to the party to whom the failure was attributed.

Note Where the inference is drawn it is with respect to the particular matter upon which the witness would testify – not in general. Where the inference is drawn it is with respect to the particular matter upon which the witness would testify – not in general. That is, where appropriate, an adverse inference applies to the specific issue on which the missing witness could have testified, not to credibility at large. That is, where appropriate, an adverse inference applies to the specific issue on which the missing witness could have testified, not to credibility at large.

Note The Rule is subject to many exceptions and may be negated where the party against whom the adverse inference is sought provides a satisfactory explanation for the failure to call the witness – ie. cannot find, otherwise unavailable, has no memory etc. The Rule is subject to many exceptions and may be negated where the party against whom the adverse inference is sought provides a satisfactory explanation for the failure to call the witness – ie. cannot find, otherwise unavailable, has no memory etc.

Note The Court must be alive to the many circumstances in which trial counsel decide not to call particular witnesses. For example, sometimes a witness is not called because the point has been adequately covered, or because an otherwise honest witness has a poor demeanour, or other factors not related to the truth of the testimony. The Court must be alive to the many circumstances in which trial counsel decide not to call particular witnesses. For example, sometimes a witness is not called because the point has been adequately covered, or because an otherwise honest witness has a poor demeanour, or other factors not related to the truth of the testimony.

Note On the other side of the coin, the Crown is not required to call all available witnesses: Cook (SCC), even if the witness is the complainant. On the other side of the coin, the Crown is not required to call all available witnesses: Cook (SCC), even if the witness is the complainant. Cook allows for an adverse inference for failure to call the complainant, where there is no apparent explanation. This is not so where the complainant is unavailable or not called for other legitimate reasons. Cook allows for an adverse inference for failure to call the complainant, where there is no apparent explanation. This is not so where the complainant is unavailable or not called for other legitimate reasons.

Note Explanations for not calling a witness can include concerns over their veracity. Explanations for not calling a witness can include concerns over their veracity. Tactical considerations can include the elicitation of evidence to provide an explanation when the decision is made not to call a witness of some importance. Tactical considerations can include the elicitation of evidence to provide an explanation when the decision is made not to call a witness of some importance.

Note Where a witness is under subpoena and fails to appear at trial, there can be no adverse inference Where a witness is under subpoena and fails to appear at trial, there can be no adverse inference

Note It may be appropriate to draw an adverse inference against the defence where the uncalled witness is one to whom the accused can reasonably be said to have had greater access than the Crown and where no explanation is offered. It may be appropriate to draw an adverse inference against the defence where the uncalled witness is one to whom the accused can reasonably be said to have had greater access than the Crown and where no explanation is offered. An adverse inference will only be available where the person appears to be in a position to corroborate the defence case on an issue. An adverse inference will only be available where the person appears to be in a position to corroborate the defence case on an issue.

Note An adverse inference should only be considered where the missing witness is of some importance to the case. An adverse inference should only be considered where the missing witness is of some importance to the case.

Alibi Classic example of a circumstance where the failure to call a defence witness may raise the adverse inference. Classic example of a circumstance where the failure to call a defence witness may raise the adverse inference.

Charrette Assault witnessed by two men and one woman. One of the men and the woman called by Crown. Other man called by defence. Assault witnessed by two men and one woman. One of the men and the woman called by Crown. Other man called by defence. Accused testified that the female Crown witness approached him and offered to change her testimony for a bribe. The female Crown witness testified it was the other way around. There was a third person, friend to the accused, who could have spoke to this issue as she was there for the “bribe” conversation. She was not called by the defence. Held: trial judge entitled to draw an adverse inference. Accused testified that the female Crown witness approached him and offered to change her testimony for a bribe. The female Crown witness testified it was the other way around. There was a third person, friend to the accused, who could have spoke to this issue as she was there for the “bribe” conversation. She was not called by the defence. Held: trial judge entitled to draw an adverse inference.

Note There is a stronger basis for an adverse inference where the missing proof lies in the peculiar power of the party against whom the adverse inference is sought to be drawn. There is a stronger basis for an adverse inference where the missing proof lies in the peculiar power of the party against whom the adverse inference is sought to be drawn. Even where appropriate for the TOL to comment on the failure of an accused to call a particular witness, it is incumbent on a TOL to instruct the jury that there is no obligation on the defence to call a particular witness and that there may have been a perfectly valid reason for not calling the witness. Even where appropriate for the TOL to comment on the failure of an accused to call a particular witness, it is incumbent on a TOL to instruct the jury that there is no obligation on the defence to call a particular witness and that there may have been a perfectly valid reason for not calling the witness.

Note The TOF should be told that the decision to call a witness us generally that of counsel and that the case must be decided on the basis of the evidence called. They should not speculate as to the content of the evidence not called. The TOF should be told that the decision to call a witness us generally that of counsel and that the case must be decided on the basis of the evidence called. They should not speculate as to the content of the evidence not called.

Note It is essential to explain the nature of the adverse inference which may be drawn – the jury may only infer that if the witness were called, his testimony would be unfavourable on the point at issue. It does not determine the case one way or another. It is essential to explain the nature of the adverse inference which may be drawn – the jury may only infer that if the witness were called, his testimony would be unfavourable on the point at issue. It does not determine the case one way or another.