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California Evidence - Can You Comment at Trial on the Other Side's Failure to Call A Key Witness?

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A key tactic at trial is to comment on an opposing party's failure to offer stronger available evidence (Evid. Code, § 412; see CACI No. 203).

One limit on this rule is that it is improper for counsel to invite a jury to draw an adverse inference from the opposing party's failure to call a particular witness if the witness is equally available to both parties. (Smith v. Covell (1980) 100 Cal.App.3d 947, 956-957 [“This type of attorney misconduct invites juror speculation”].)

In Smith v. Covell the court found that the lawyer had committed prejudicial misconduct, by improperly commenting on plaintiffs' failure to call witnesses equally available to both sides. The court found he was “insinuating as facts, during both opening statement and
cross-examination, matters he knew were not fact or could not be put into evidence” (Smith case at 959), and by suggesting in cross-examination that plaintiffs were wealthy – “jurors were impressed with the idea that plaintiffs ‘already had a lot of money’ and ‘didn't need any more.”’ (Smith case at 960.)

So in Smith the principle of referring to the weakness of the other side’s case due to its failure to call available witnesses was put on steroids and used to argue facts that were pure speculation.

But even when used to make an honest comment on the weakness of the other side’s case there is always the counter argument that “my opponent could have called the witness so his comments make no sense”.

The concept of equal availability is generally based upon whether or not the witness was subject to a subpoena. In other words, if the address of the witness is known and the witness is not hidden behind a high security system at home and work - that witness will be deemed equally available in most cases. This raises a problem for trial attorneys because the argument is usually first raised in closing argument. The minute the argument is made there should be an objection.

In Patton v. Royal Industries, Inc., 263 Cal.App.2d 760, 769, 70 Cal.Rptr. 44, the COA approved the trial court direction to plaintiff's attorney not to comment on defendant's failure to call a certain witness where the parties had an equal opportunity to call the witness.

In Neumann v. Bishop, 59 Cal.App.3d 451, 479, 482, 130 Cal.Rptr. 786, the court held that:
“It was pure speculation to assume that the failure to present those witnesses was because they would give testimony favorable to plaintiff.

Another danger is that such a comment in closing may be deemed misconduct. (See: Malkasian v. Irwin, 61 Cal.2d 738, 40 Cal.Rptr. 78, 394 P.2d 822.)

For trial attorneys the comment that a key or best witness has not been called should always be considered and usually made. BUT it is fraught with perils that need to be addressed in advance.

If the witness is subject to subpoena be prepared to face intense scrutiny as you attempt to explain why you did not interview and/or subpoena the witness and why you believe the witness would have hurt the other side if called. (Hence explaining why their failure to call the witness was based upon the fact that there was no better evidence and the weak evidence presented should be suspect.

Daniel Horowitz is a trial attorney with over 200 jury trials as counsel. These have included major state and federal cases ranging from wrongful death, whistleblower, murder, death penalty, medical fraud and other significant cases. If you are an attorney with expertise in a specialized area, you can associate Daniel Horowitz to assist with trial. If you are an individual or business with a lawsuit that will end in jury trial, call Daniel for assistance.