United States v. William Caccia

JON O. NEWMAN, Circuit Judge.

This appeal concerns a “missing witness” instruction, several versions of which have been approved, with varying degrees of enthusiasm, in this and other circuits. In this Circuit, one generally acceptable version of a “missing witness” instruction informs the jury that when a material witness is equally available to both parties but is not called to testify by either party, the jury may infer that the testimony of that witness would have been unfavorable to either or both parties. This appeal raises the narrow question of whether this version of the “missing…