Banks v. Harris

I agree that the trial court erred in granting the “missing witness” instruction. The opinion of the Court sets forth a sound rationale for the inapplicability of the instruction under the facts of this case, but I would avoid the necessity of such an analysis.

In my view, the “missing witness” instruction has outlived its usefulness. A case-by-case approach, whereby the applicability of the instruction depends upon the facts of each case, is certain to prove as fruitful a source of errors, appeals, and reversals in the future as it has in the past. For the reasons stated in the concurring…