Massachusetts Judge Refuses to Give “Missing Witness” Instruction for Shooting Victim Who Didn’t Want to Testify Due to PTSD

A “missing witness” instruction permits the jury, “if they think reasonable in the circumstances, [to] infer that that person, had he been called, would have given testimony unfavorable to the party.” Commonwealth v. Figueroa, 595 N.E.2d 779 (Mass. 1992). So, should the defense be entitled a “missing witness” instruction when the prosecution gives every indication that a shooting victim will testify before telling the defense that he won’t testify because he has PTSD? That was the question teed up for the judge in the current prosecution of Jason Levesque.

According to an article,

Jason Levesque, who is charged with attempted murder and first-degree assault on allegations he shot his neighbor Kyle Violette six times on April 4, 2024, following a dispute over snow plowing.

The prosecution initially indicated that they would call Violette before saying that he didn’t want to take the stand because he had PTSD.

In response, the defense, inter alia, moved for a “missing witness” instruction. The judge denied the motion, ruling as follows:

“In terms of the missing witness instruction, I reviewed federal and state case law on that and I am not inclined to grant a missing witness instruction,” Livernois said the witness (Kyle Violette) is in state control, not a witness that cannot be located. Citing Massachusetts case law, he said the standard would be most appropriate if the witness was not called, without explanation. “The state has offered an explanation, his unwillingness, his emotional stress. The state made the decision not call him, with plausible reasons. I do not think an adverse instruction is needed.”

Looking at caselaw, this seems correct. For instance, in Commonwealth v. Saletino, 871 N.E.2d 455 (2007), the Supreme Judicial Court of Massachusetts noted that

A missing witness instruction is appropriate when a party “has knowledge of a person who can be located and brought forward, who is friendly to, or at least not hostilely disposed toward, the party, and who can be expected to give testimony of distinct importance to the case,” and the party, without explanation, fails to call the person as a witness (emphasis added).

-CM

EDIT: As a commenter notes, this case is in New Hampshire, not Massachusetts, although the judge did cite Massachusetts case law. After a brief search, I didn’t find any New Hampshire precedent on this issue, so this may end up being case of first impression in New Hampshire.