Section 25.10 Defendant’s Failure to Call a Favorable Witness

• Library: Criminal Practice 2012 Supp

4. (§25.10) Defendant’s Failure to Call a Favorable Witness

The state may comment on the defendant’s failure to call a particular witness if:

· the defendant had “superior ability to know or identify the witness”;

· the defendant had superior ability to know the “nature of the testimony”; and

· the relationship between the defendant and the witness indicates that the witness, under ordinary circumstances, would likely favor the defendant.

State v. Dudley, 809 S.W.2d 40 (Mo. App. W.D. 1991); State v. Gillis, 807 S.W.2d 513 (Mo. App. W.D. 1991); State v. Bostic, 789 S.W.2d 804 (Mo. App. W.D. 1990).

But when a witness is equally available or equally unavailable to both parties, the trial court will not permit counsel to argue to the jury that an adverse inference...