For an inference to be drawn from the nonproduction
of a witness, it must appear that the person was within the
power of the party to produce, and that his testimony
would have been superior to that already utilized in
respect to the fact proved. For obvious reasons, the
inference is not proper if the witness is for some reason
unavailable or is either a person who by his position
would be so prejudiced against the party that the latter
would not be expected to obtain the unbiased truth from
him, or a person whose testimony would be cumulative,
unimportant or inferior to what had already been
utilized. See State v. Wilson, 128 N.J. 233, 244 (1992).
The better practice is for the party seeking to obtain
such a charge to advise the trial judge out of the presence
of the jury as to what he intends to request. This would
accord the party failing to call the witness the
opportunity to explain the failure or to call the witness.
See generally, Wild v. Roman, 91 N.J. Super. 410 (App.
Div. 1966), and Wilson, supra.
It is now clear that a prosecutor may argue to the jury
the adverse inference from the absence of a crucial defense
witness. State v. Singleton, 158 N.J. Super. 517 (App.
Div. 1978); State v. Hare, 139 N.J. Super. 150 (App. Div.
1976), certif. denied, 70 N.J. 525 (1976). Cf. State v.
Kennedy, 135 N.J. Super. 513, 527 (App. Div. 1975)
(court refused to consider whether comment on the
absence of a defense witness is improper if a request for an
adverse inference charge has not first been made and ruled
upon favorably, because no objection was made to the
comment below). The defense must be allowed an
adequate opportunity to present an explanation of why
the witness was not called to testify. State v. Hare, supra,
at 156.
The State is also allowed to show that its inability to
procure the attendance of a presumably favorable witness
should not be grounds for either an adverse jury
instruction or a defense argument in summation. In State
v. Casey, 157 N.J. Super. 311 (App. Div. 1978), certif.
denied, 79 N.J. 490 (1979), an undercover agent who
initiated an illegal drug sale failed to appear at trial in
response to a subpoena issued by the State. This witness
was not “available” to the State, and, hence, the trial court
acted properly in denying a defense motion for a jury
instruction on the missing witness, and precluding any
defense comment on that subject in summation. Id.
Failure to call a witness available to both parties does
not necessarily preclude raising an inference against
either. State v. Carter, 91 N.J. 86, 127 (1982). “Where
one party has superior knowledge of the identity of a
witness or of what testimony might be expected or where
a certain relationship, such as employer-employee, exists
between the witness and a party, the adverse inference
may properly be argued to the jury.” Id. at 127-128. A
request to comment in summation on the non-
production of witnesses should be made out of the
presence of the jury at the close of the adversary’s case. Id.
In Carter, though the prosecutor did not request prior
permission from the court, his summation comments in
question were not objected to by defense counsel. Under
these circumstances, the failure of the court to explore the
defendants’ explanation for nonproduction of witnesses
did not constitute plain error. Id. at 128-129. See also
State v. Hickman, 204 N.J. Super. 409 (App. Div. 1985);
State v. Crews, 208 N.J. Super. 224 (App. Div. 1986)
(ruling that defense could avoid Clawans instruction
only by presenting witness and having him assert
privilege before jury was error, since trial court failed to
voir dire witness and ascertain if he was available to the
defense), aff’d 105 N.J. 498 (1987).Where defendant has raised an alibi defense, and the
prosecutor has requested a Clawans charge, thus placing
defendant on notice that the prosecutor intended to
comment on the failure of defendant to produce the
witness with whom he had spent the time, then
defendant’s objection to the prosecutor’s comment is
without merit. State v. Driker, 214 N.J. Super. 467 (App.
Div. 1987).Where the prosecutor intends to ask the jury to draw
an adverse inference from defendant’s failure to produce
a witness, a R. 8 (now N.J.R.E. 104(c)) hearing must be
held to allow the court to determine that the witness was
within defendant’s power to produce and that the
witness’ testimony would have been superior to the
testimony used. State v. McBride, 211 N.J. Super. 699
(App. Div. 1986).III. LIMITATION OF NUMBER
The trial court may, in its sound discretion and with
proper regard to the nature and circumstances of a case,
reasonably limit the number of witnesses on collateral
issues. The court has no right, however, to limit the
number of witnesses on a controlling fact and the
circumstances relevant to the proof of that fact.
Limitation of witnesses on a contested issue is sustainable
only when it is apparent that a party is trifling with the
court and seeking in bad faith to waste its time and
obstruct the administration of justice, because it is
impossible for a court to be certain that additional
substantive evidence or witnesses, if received, would not