The “missing evidence rule” is a rule of evidence that falls under the umbrella of criminal procedure laws. Criminal evidence may be any physical or verbal evidence that is presented in order to prove that a crime has occurred. Criminal evidence can take many different forms and may also be introduced by the defendant in order to prove that they are not guilty of the crime that they have been accused of.

In any criminal trial, the prosecution has the responsibility to prove that the defendant accused of committing a crime has done so beyond a reasonable doubt. The prosecution will utilize evidence to support their claim. Additionally, it is important to note that it is illegal for either party in a criminal matter to attempt to hide any of this evidence from either the other side or the authorities. In fact, doing so may result in a spoliation of evidence finding.

In some cases, there is lost evidence in criminal cases that cannot be found or located to be utilized in the criminal case at hand. The missing evidence rule is an evidentiary rule that describes how a jury is to interpret instances in which a party fails to produce evidence at trial.

According to the missing evidence rule, a party may fail to present evidence that would have been appropriate for them to present. If this is the case, the jury is allowed to conclude that the evidence would have been damaging to that party’s case.

For example, during a lawsuit, the defendant might hold a document that is relevant to their case and fail to enter the document as evidence. In that case, the jury may reasonably conclude that the document would have been unfavorable for the defendant’s case at hand.

The missing evidence rule generally applies to various forms of evidence, including but not limited to:

• Relevant documents;
• Witness testimony;
• Evidence that depicts the circumstances surrounding the specific case at hand.

It is important to note that the missing evidence rule does not apply to evidence that is “excluded,” i.e., evidence that is not allowed to be entered into the record as evidence. For instance, hearsay evidence is generally excluded from trials as it is considered to be unreliable information.

As such, if evidence has been excluded from trial, the jury may not conclude that the evidence would have damaged that party’s case by utilizing the missing evidence rule. The jury can only make missing evidence rule conclusions if the party itself willfully withholds the evidence from the trial.

What Is the Missing Witness Rule?

Similar to the missing evidence rule, the missing witness rule is a legal principle that allows one party to obtain an adverse inference against the other party for failure to call a witness who possesses material information about the case at hand. The missing witness rule was established in an older United States Supreme Court decision, Graves v. United States.

In other words, if a potential witness would be expected to have knowledge of information that is important to an issue in the case at hand, and if that witness is “peculiarly available” to one party of the case due to a relationship of interest or affection and that witness is not called by that party to testify, then the jury may infer that the witness would have given testimony unfavorable to that party.

In a missing witness instruction that is presented to the jury, the trial court tells the jury that it may draw such an inference if it finds that the prerequisites of the missing witness rule have been satisfied. However, the rationale for the missing witness rule often conflicts with constitutional principles that place the burden of proof strictly on the prosecution and forbid comment in cases where the defendant does not testify on their own behalf.

As such, a missing witness instruction that invites the jury in a criminal case to draw an inference adverse to the defendant based on that defendant’s failure to produce evidence should rarely, if ever, be given or utilized by a criminal court.

How Would the Missing Evidence Rule Apply?

The missing evidence rule essentially allows the jury to “jump” to the conclusion that the missing evidence was unfavorable for the party. This could be considered unfair, as it may not actually be true that the missing evidence was unfavorable. Additionally, the jury may believe that a party is withholding crucial information in the case. If so, this fact could cast doubt on that party’s case, especially regarding witness reliability.

Alternatively, it could be a strategic move to purposefully withhold some evidence during trial, as it could be better to simply allow the jury to make their conclusions rather than provide them with specific details. This largely depends on the nature of the case, as well as the different facts that are involved. As such, the decision of whether to omit specific evidence is largely up to the attorney who is representing that particular party.

However, the attorney must ensure that they are not violating any laws by withholding evidence during trial. Discovery rules may require a party to disclose specific forms of evidence, and violations of these regulations could result in a malpractice claim against the withholding attorney.

What Happens if You Don’t Provide Evidence?

It is important to note that in order for evidence to be presented in a criminal trial, it must be relevant and admissible. As such, in order for evidence to be admissible in court, the evidence sought to be admitted must be:

• Logically relevant;
• Material;
• Competent.

This means that in order for evidence to be relevant, it must have a reasonable tendency to help prove or disprove a fact. In other words, the evidence does not need to make a fact certain. Instead it must make a fact that is of consequence more or less probable than it would be without the specific piece of evidence. Additionally, the evidence must also be legally relevant.

This means that the probative value of the evidence must not be substantially outweighed by the dangers of:

• Unfair prejudice;
• Jury confusion;
• Waste of time;
• The jury being misled in one way or another.

However, there could be relevant and admissible evidence held by one party that has been excluded from trial. In that case, the jury may conclude that the evidence would have damaged that party’s case by utilizing the missing evidence rule. However, a jury instruction utilizing the missing evidence rule is rare. This is because a jury can only make missing evidence rule conclusions if the party itself has willfully withheld the evidence from the trial.

Do I Need an Attorney for Issues Associated with Criminal Evidence?

If you are involved in a case and are experiencing issues associated with the evidence being presented in that case, then it is in your best interests to consult with an experienced criminal lawyer.

An experienced criminal attorney can inform you of your legal rights and options according to your state’s specific laws on evidence. Additionally, a criminal attorney will also be able to represent you in court as needed.