The Tennessee Missing Witness Rule

What you need to know about Tennessee’s “Missing Witness Rule:”

Tennessee’s law of evidence recognizes the common law rule that a party “may comment upon the failure . . . to call an available and material witness whose testimony would ordinarily be expected to favor” the opposing party. State v. Francis, 669 S.W.2d 85, 88 (Tenn. 1984). The missing witness rule may apply when the evidence shows that a witness who was not called to testify knew about material facts, had a relationship with the party “that would naturally incline the witness to favor the party,” and the witness was available to the process of the court. Id. (quoting Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979)). In civil trials, this rule applies when the missing witness is also a party—with knowledge of material facts, naturally favorable testimony, and availability to judicial process. See Runnells v. Rogers, 596 S.W.2d 87, 90–91 (Tenn. 1980); W. Union Tel. Co. v. Lamb, 203 S.W. 752, 753 (Tenn. 1918).

The logic of this common law principle stems from the commonsense inference that “[a] party’s intentional efforts to keep evidence from the fact-finder” is reasonably “interpreted as an implied admission of weakness in that party’s case.” Robert H. Stier, Jr., Revisiting the Missing Witness Inference—Quieting the Loud Voice from the Empty Chair, 44 Md. L. Rev. 137, 140 (1985). This “inference, which Wigmore calls ‘one of the simplest in human experience,’” id. (quoting 2 John Wigmore, Evidence in Trials at Common Law § 278, at 133 (J. Chadbourne rev. ed. 1979)), is well-grounded in Tennessee law. Yet we have applied it with due caution for the “several dangers inherent” in its operation, such as adding false weight or significance to testimony that a court has not heard. See Francis, 669 S.W.2d at 89. Thus, we strictly construe the missing witness rule and its elements. Id.

We hold that the missing witness rule may apply in both jury and non-jury trials. The essence of the rule is that the trier of fact, whether it be a jury or a judge, may make a permissible inference from a party’s failure to testify. The confusion about the rule’s application may arise because most often the rule operates through a set of proper jury instructions.

The Court of Appeals was not without authority in holding the missing witness rule did not apply, relying on In re Estate of Hamilton, No. M2009-01882-COA-R3-CV, 2011 WL 532296 (Tenn. Ct. App. Feb. 14, 2011), perm. app. denied (Tenn. May 25, 2011); Beacon4, LLC v. I & L Investments, LLC, 514 S.W.3d 153 (Tenn. Ct. App. 2016); and Nelson v. Justice, No. E2017-00895-COA-R3-CV, 2019 WL 337040 (Tenn. Ct. App. Jan. 25, 2019), perm. app. denied (Tenn. Sept. 18, 2019). In Hamilton, the Court of Appeals stated that the missing witness rule applies to jury trials but noted that the party asserting the rule failed to explain how it could apply in a bench trial. 2011 WL 532296, at *6. In Beacon4, the Court of Appeals, citing Hamilton, determined that the missing witness rule did not apply in a bench trial. 514 S.W.3d at 185. Similarly, in Nelson, the Court of Appeals emphasized that the party invoking the rule did not “explain how” it “applies to a bench trial.” 2019 WL 337040, at *19. These Court of Appeals cases are overruled to the extent they hold that the missing witness rule does not apply in a non-jury trial.

The trial court erred in its application of the missing witness rule by applying a presumption against Father rather than a permissive inference. While a presumption tilts the scales of legal reasoning toward a particular result, a permissive inference merely enables the trier of fact to draw on logical leaps that are ordinary to our shared experience. In Francis, after enumerating the rule’s elements, we emphasized that it is best and “now generally characterized as authorizing a permissive inference,” rather than a “presumption.” 669 S.W.2d at 88. Importantly, a plaintiff cannot use the inference to avoid the burden of establishing a prima facie case for the plaintiff’s claims. See Runnells, 596 S.W.2d at 90 (observing that a defendant need not testify and may avail himself of the plaintiff’s failure to carry the burden of proof and that the missing witness rule “applies . . . only ‘when the plaintiff’s proof and the legal deduction therefrom make a prima facie case against the defendant’” (quoting Davis v. Newsome Auto Tire & Vulcanizing Co., 213 S.W. 914, 915 (Tenn. 1919))). Nor can the inference “amount to substantive evidence of a fact of which no other evidence is introduced.” McReynolds v. Cherokee Ins. Co., 815 S.W.2d 208, 210 (Tenn. Ct. App. 1991); see also 2 Kenneth S. Broun, et al. McCormick On Evidence § 264 (Robert P. Mosteller ed., 8th ed. 2020), Westlaw (database updated January 2020) (“[U]nlike the usual presumption, it is not directed to any specific presumed fact or facts which are required or permitted to be found. The burden of producing evidence of a fact cannot be met by relying on this ‘presumption.’”).

The missing witness rule carries no more legal force than the commonsense
inference it permits the trier of fact to apply in weighing the evidence. But the inference is
not substantive proof and does not relieve a party of the burden of proving a prima facie
case. In re Estate of Price, 273 S.W.3d 113, 140 (Tenn. Ct. App. 2008) (quoting Arnett v.
Fuston, 378 S.W.2d 425, 428 (Tenn. Ct. App. 1963)).

Thus, in a non-jury trial, a trial court should not apply the missing witness rule in a
mechanical or conclusory fashion to replace evidence. Instead, the court should carefully
consider the commonsense inference that withheld testimony is likely unfavorable when
the court weighs other available evidence. The missing witness rule alone does not resolve
any issue.

In Re Mattie L, 618 S.W.3d 335, 342-44 (Tenn. 2021).

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