the trial defense counsel also raised the specter of the “missing witnesses,” alluding that the government would have called them to testify if their testimony would have supported the government’s case. Apparently this argument was compelling enough to cause the members to interrupt their deliberations to ask about the missing witnesses.
The military judge’s response was to tell the members they had to make a “decision based on the evidence presented to you and that’s all I can tell you.” The trial defense counsel then added “I believe the members can also look at lack of evidence and evidence that wasn’t presented here.” At this point, the trial counsel asked for a session outside the members’ presence under Article 39a, UCMJ, 10 U.S.C. § 839a. At the conclusion of the Article 39a, UCMJ, session, the military judge instructed the members as follows:
[You] have to look at the evidence that’s been presented to you. You have an instruction dealing with what constitutes individuals who are granted immunity – testimonial immunity . . . With regard to an order given by the convening authority and their obligations under that. So that’s all I’m going to explain to you on that. Again, you really have to look at the evidence that’s been presented to you and make your decision on that. The members returned to the deliberation room and the trial continued through sentencing.
The AFCCA held as follows:
With respect to the instruction limiting the members to the evidence presented, we find no error. The military judge’s instructions were consistent with Rule for Courts-Martial 920(e)(4), which requires that the military judge provide “[a] direction that only matters properly before the court-martial may be considered.” Trial and appellate defense counsel appear to argue that the military judge should instruct that the absence of evidence is, itself, evidence. That is incorrect. It remains an absence of evidence. Members should not be placed in a position of speculating about what is missing. They must make their determinations based on the evidence presented in court; however, that same absence of evidence may be considered in determining whether the government has met its burden of proof beyond a reasonable doubt.
Neither the trial judge nor the AFCCA acknowledged that federal courts have recognized a missing witness instruction. See United States v. Mittelstaedt, 31 F.3d 1208, 1216 (2d Cir. 1994) (holding a missing witness instruction inviting the jury to infer that the testimony of an uncalled witness might have favored a specified party is appropriate if production of that witness is peculiarly within the power of the other party); United States v. Mahone,, 537 F.2d 922, 926 (7th Cir. 1976) (quoting Graves v. United States, 150 U.S. 118, 121 (1893) (holding that "if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable").
It seems this instruction would not need to be given very often. The key here is that the witness would have to be peculiarly within the power of the Government to produce. Under military law, the accused would have access to all the witnesses who are known to the Government. The Federal Judicial Center has a pattern criminal jury instruction on the subject. The note to the instruction warns against trying to use the instruction against the accused as the defense does not have to produce any evidence whatsoever.