N.J. Supreme Court Rejects Missing Witness Jury Charge Against Criminal Defendant

For years, the decision in State v. Clawans permitted judges, in appropriate circumstances, to charge juries that a party's failure to call a witness who naturally would have been called may give rise to an inference that the witness's testimony would have been unfavorable to the party who likely would have called the witness.

Today the N.J. Supreme Court overruled that decision, insofar as it had previously permitted a Clawans charge to be given against a criminal defendant. In State v. Hill, which decision can be found here, a unanimous Court rightly recognized that such a jury charge could have the effect of reversing the burden of proof.

Hill was charged with first degree armed robbery. He was charged as an accomplice, driving codefendants to the scene and serving as the getaway driver. The main issue in the trial was his prior knowledge of the planned robbery. He testified and denied any prior knowledge. He did not call as a witness, however, his cousin who was a codefendant. The cousin had pled guilty as a juvenile and, as part of his testimony before the juvenile court, asserted that Hill did have advance knowledge of the robbery.

Neither side called the cousin as a witness in Hill's trial. The State sought and obtained, over defense objection, a Clawans charge. The jurors were therefore advised that they could find an adverse inference against Hill due to his failure to call the cousin to testify. The adverse inference would be that the cousin's testimony would be unfavorable. The Appellate Division affirmed the jury instruction. The Supreme Court reversed.

The Court was correct in reversing the ruling on the jury charge. The State bears the burden of proof to prove each element of all criminal charges beyond a reasonable doubt. Defendants have no such burden. The burden never shifts. Yet the prior application of Clawans had the effect of shifting the burden of production to the defendant. In this case, Hill indicated, for example, he no longer spoke with the cousin (not surprisingly), and that the cousin was believed to have moved out-of-state. In any event, it is unclear how a defendant could overcome an adverse inference. He should not have to. It is not the defendant's burden to produce for trial every eyewitness. Indeed, there are a host of strategic reasons why defense counsel may choose not to call eyewitnesses.

One important reason not to call every eyewitness relates to the burden of proof. Defendants may properly defend a case without calling any witnesses on the basis that the State has failed to meet its burden of proof. That is often a significant factor and strategy in not calling defendants to testify. Yet, if defendants were required to worry about an adverse inference charge, such an argument would be undermined. So too would the constitutional protections for defendants embedded in the "presumption of innocence."

So this decision is an important one.