Henderson v. State

On September 16,1980, the Court of Appeals decided Eley v. State, 288 Md. 548, 419 A.2d 384 (1980).1

Eley mandates that if the State does not produce possible other relevant evidence or explain its failure to produce that evidence, the defendant is permitted to comment to the fact finder on the State’s shortcoming. The clear purpose of comment by the defense is to create an inference that had the State introduced the non-produced or non-explained missing evidence, the introduction would be beneficial to the defendant. Ergo, the defense would probably assert that the State, put to the choice of…