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If you find that [party] had a witness available to it whom it did not call, and that [party] did not have that witness available to it, you may infer that the witness’s testimony would have been unfavorable to [party who failed to call the witness]. You may draw such an inference, but you are not required to.
1 In Latin American Music Co. v. ASCAP,593 F.3d 95, 101 (1st Cir. 2010), the court said: “Although far more common in criminal cases, a missing witness instruction may be given in a civil case as well.... The instruction, however, should only be given where ‘the witness is either actually unavailable to the party seeking the instruction or so obviously partial to the other side that the witness (though technically available) is deemed to be legally unavailable.’” Id. at 101-02 (citing United States v. Perez,299 F.3d 1, 3 (1st Cir. 2002)). In an earlier civil case, the court said that the instruction is permissible “when a party fails to call a witness who is either (1) ‘favorably disposed’ to testify for that party, by virtue of status or relationship with the party or (2) ‘peculiarly available’ to that party, such as being within the party’s ‘exclusive control.’” Grajales-Romero v. American Airlines, Inc., 194 F.3d 288, 298 (1st Cir. 1999) (quoting United States v. DeLuca,137 F.3d 24, 38 (1st Cir. 1998)). “When deciding whether to issue a missing witness instruction the ‘court must consider the explanation (if any) for the witness’s absence and whether the witness, if called, would be likely to provide relevant, non-cumulative testimony.’” Latin American Music Co.,593 F.3d at 102 (citing Perez, 299 F.3d at 3). Although all this language addresses the court’s role in deciding whether to give the instruction, it seems appropriate, if the instruction is given, to allow the jury also to make the underlying determinations as to whether the conditions for the adverse inference are present. Whether to give the instruction is within the trial court’s discretion. see Grajales-Romero, 194 F.3d at 298.