A couple of days ago, I wrote on the D.C. Circuit Court’s rejection of another Bullshit Tax Shelter. D.C. Circuit Swats Down Bullshit Tax Shelter (Federal Tax Crimes Blog 11/29/19), here. One of the issues discussed in the case (but only lightly discussed in the blog) is the negative inference that a trier of fact may draw from a missing witness. I noted: “In its most common iteration, the missing witness negative inference is deployed when the witness is controlled by one of the party’s to the litigation.” I use this separate blog entry to discuss the missing witness negative inference in this context because of its potential for its application where, in the impeachment proceedings or the resulting trial, President Trump has control or suasion over witnesses whom he directs or encourages not to testify.
A good statement of the missing witness rule--usually invoked in a jury instruction context to explain to the jury how to use the rule--is (United States v. St. Michael's Credit Union, 880 F.3d 579, 597 (1st Cir. 1989), here (cleaned up):
The rationale behind the missing witness instruction has been stated as follows: "the failure of a party to produce available evidence that would help decide an issue may justify an inference that the evidence would be unfavorable to the party to whom it is available or whom it would ordinarily be expected to favor." 2 C. Wright, Federal Practice and Procedure § 489 (1982). First Circuit precedent has established three circumstances that may warrant a missing witness instruction.
The jury may draw an inference adverse to a party toward whom the missing witness is favorably disposed, because the party would normally be expected to produce such a witness. In addition, the jury may draw an adverse inference when a party fails to produce a material witness who is peculiarly available to that party. Finally, when a party having exclusive control over a witness who could provide relevant, noncumulative testimony fails to produce the witness, it is permissible to draw an adverse inference from that party's failure to do so, even in the absence of any showing of the witness's predisposition toward the party.Readers will note that the negative inference from a missing witness is an evidentiary context for inferences that we use everyday in all sorts of contexts beyond a trial setting. If it is important to establish the truth of a proposition and any party withholds potentially important evidence as to the truth or falsity of the proposition, then an inference can be and often is drawn that the evidence would be negative to that party. The inference is deployed in a trial setting where it is critically important to establish the truth of facts which the trier of fact (judge or jury) is requested to find. The party who suffers if the fact is or is not true and declines to produce evidence within that party's control can be subject to a negative inference as to the content of the withheld evidence. Just that simple.
In the current context, President Trump has directed and clearly signaled to all persons within his control or suasion that they should not testify. That is the classic case in which the missing witness negative inference can be made. As I indicated, that rule is important in fact finding in every day life and in trials.
The claim of at least some privileges can in some types of cases defeat the negative inference. Certainly, in a criminal proceeding, a defendant's assertion of the of Fifth Amendment by not testifying (and not being compelled to testify) does not permit the trier of fact to infer that his testimony would be negative and use that inference to convict the defendant. (Well, at least the trier of fact is not supposed to do that, but to the extent the jurors have comfortably used that type of negative inference in their every day lives, then they might well factor in the inference at the margins even in the face of an instruction from the court that they should not consider the defendant's failure to testify in assessing whether the evidence actually presented at trial establishes guilt beyond a reasonable doubt.) But, the assertion of the Fifth Amendment privilege in a civil case can permit the negative inference. See e.g., Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (the "prevailing rule [is] that the Fifth Amendment does not forbid adverse inferences against parties to civil actions where they refuse to testify.")
As I understand it, Trump claims in directing or discouraging witnesses from testifying that he is not doing it to protect himself from impeachment or conviction but rather to preserve the prerogatives of the presidency, particularly the executive communications privilege (however worded). Setting aside the credibility of that claim of constitutional high ground, perhaps the better analogy for the current context is the attorney-client privilege. Without getting into the weeds on that issue, the cases are not consistent. See e.g., E.g., Deborah Stavile Bartel, Drawing Negative Inferences Upon a Claim of the Attorney-Client Privilege, 60 Brooklyn L. Rev. 1355 (1995), here (although she argues that the negative inference should not be permitted in criminal and civil cases because the underlying basis for the privilege is the same in both types of proceedings). The trend seems to be that no negative inference should apply from the invocation of the attorney client privilege. E.g., Knorr-Bremse Sys. Fuer Nutzfahrzeuge GMBH v. Dana Corp., 383 F.3d 1337, 1344 (Fed. Cir. 2004) ("no adverse inference shall arise from invocation of the attorney-client and/or work product privilege"); Parker v. Prudential Ins. Co., 900 F.2d 772, 775 (4th Cir.1990) (no negative inference permitted from assertion of attorney-client privilege); In re Tudor Assocs Ltd. III., 20 F.3d 115, 120 (4th Cir. 1994) ("A negative inference should not be drawn from the proper invocation of the attorney-client privilege.").
So the question that I can’t answer is whether a court called upon to consider or advise a jury on potential adverse inferences from the exercise of the executive communications privilege would apply the Fifth Amendment privilege rule or the trending attorney-client privilege rule. And the practical question is whether the missing witness negative inference would be outcome determinative for any trier of fact (either the House members in framing and approving the charges) or the Senate members (in voting on conviction).
Finally, and a diversion, in considering the missing witness negative inference rule, I was reminded of the famous country ballad (famous, but not very old as folk ballads go) Long Black Veil. Basically, in this case, there was a missing witness that could have saved the defendant with an alibi, but alas the defendant did not call that witness for reasons having nothing to do with privilege. In this case, the missing witness would have testified favorably to the defendant (at least favorably in terms of his guilt or innocence of the crime charged), but the trier of fact did not know about the missing witness and thus made no inference one way or the other.
The Long Black Veil
Johnny Cash Version (YouTube here)
Ten years ago, on a cold dark night
Someone was killed, 'neath the town hall light
There were few at the scene, but they all agreed
That the slayer who ran, looked a lot like me
The judge said son, what is your alibi
If you were somewhere else, then you won't have to die
I spoke not a word, thou it meant my life
For I'd been in the arms of my best friend's wife
She walks these hills in a long black veil
She visits my grave when the night winds wail
Nobody knows, nobody sees
Nobody knows but me
Oh, the scaffold is high and eternity's near
She stood in the crowd and shed not a tear
But late at night, when the north wind blows
In a long black veil, she cries ov're my bones
She walks these hills in a long black veil
She visits my grave when the night winds wail
Nobody knows, nobody sees
Nobody knows but me
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