- 62 -
F.2d 219 (1st Cir. 1972); Pollack v. Commissioner, 47 T.C. 92,
108 (1966), affd. 392 F.2d 409 (5th Cir. 1968). Indeed, the
usual inference is that such evidence would be unfavorable. See
Pollack v. Commissioner, supra; see also 2 Wigmore on Evidence,
sec. 285(1), at 192 (Chadbourn rev. 1979). Where a party fails
to call a witness peculiarly within the power of that party to
produce and the testimony of that witness would elucidate the
matters at issue, it generally is permissible under the adverse
inference rule to infer that the witness' testimony would have
been unfavorable. See Graves v. United States, 150 U.S. 118,
120-121 (1893); United States v. Rollins, 862 F.2d 1282, 1297-
1298 (7th Cir. 1988); see also 2 McCormick on Evidence, sec. 264,
at 185 (4th ed. 1992).
In Wynn v. United States, supra, the U.S. Court of Appeals
for the District of Columbia Circuit, to which an appeal in these
cases would normally lie, considered on its own initiative the
question of whether an adverse inference could be drawn against a
criminal defendant for failing to present certain witnesses he
claimed would support his alibi defense. The Court of Appeals
stated that the record did not disclose whether any of those
uncalled witnesses was within the power, much less peculiarly
within the power, of that defendant to produce. In a footnote,
the court gave what it described as a "partial enumeration" of
the circumstances relevant to resolving that question that were
Page: Previous 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 NextLast modified: May 25, 2011