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witness_standIt is well into the trial of a medical malpractice case that the discussion turns to attorney comment or jury instruction on witnesses who have not testified. Up until that point, the jury has been told to limit its consideration to the evidence which has been vetted by the court and allowed to enter the record and remain there. The question becomes what the jury may be told regarding testimony which has neither been vetted nor heard.

Section 1:75 of the Pattern Jury Instructions suggests by its very existence that the jury’s attention should be drawn to what we commonly refer to as the “missing witness.” The very title of that section, which includes “Failure to Produce Witness,” has a pejorative tone. Why should the decision of counsel not to call a particular witness be termed a “failure” to do so when the determination of whose testimony is required is such a complex and subjective judgment?

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