State v. Tahair

Defendant appeals from a conviction, based on a jury verdict, of driving under the influence of intoxicating liquor, in violation of 23 Y.S.A. § 1201(a)(2). He contends the trial court committed plain error in instructing the jury that it could infer from defendant’s failure to call certain witnesses that their testimony would have been harmful to defendant. We conclude that the so-called “missing witness” instruction has outlived its usefulness in criminal trials, and should be abandoned. We also conclude, however, that its application in this case did not deprive defendant of any…