An issue that often arises at trial is what, if any, are the applicable rules where a party fails to call a witness with material knowledge of the case. In such a scenario, two issues arise: (1) whether counsel can obtain a jury charge regarding the failure to call a witness; and (2) whether counsel can comment in summation regarding the nonproduction.
The missing-witness inference, as recently addressed by the Appellate Division in Washington v. Perez, 430 N.J. Super. 121, 128 (App. Div. 2013), provides a mechanism by which an adverse party may obtain a jury instruction or adverse inference where a party fails to call a witness who would "elucidate relevant and critical facts in issue[.]"
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