Ronnie F. Judy - Page 12

                                               - 12 -                                                 

                  It is particularly significant that petitioner did not                              
            corroborate his account of the amounts in controversy by                                  
            testimony from the person in the best position to do so.                                  
            Petitioner deals with this gap in the record as follows:                                  
                        If there had been any way possible for the                                    
                  Petitioner’s father to have testified, the contents of                              
                  said “ammo-box” would not have been in question.  * * *                             
                        My father’s testimony would prove favorable.                                  
                  However, due to his bad health, he wasn’t able to                                   
                  appear for a deposition (a doctor’s statement has been                              
                  provided to the Court) and the Respondent told me she                               
                  “didn’t have the means of transportation” to our home                               
                  to interview my father.                                                             
                  If it is peculiarly within the power of one party to produce                        
            a witness whose testimony would elucidate a transaction in                                
            controversy, the fact that he does not do so may create a                                 
            presumption that the testimony would have been unfavorable.                               
            Graves v. United States, 150 U.S. 118, 121 (1893); Wynn v. United                         
            States, 397 F.2d 621, 625-626 (D.C. Cir. 1967); Pollack v.                                
            Commissioner, 47 T.C. 92, 108 (1966), affd. 392 F.2d 409 (5th                             
            Cir. 1968); Wichita Terminal Elevator Co. v. Commissioner, 6 T.C.                         
            1158, 1165 (1946), affd. 162 F.2d 513 (10th Cir. 1947); 2                                 
            McCormick on Evidence, sec. 264, at 184-189 (4th ed. 1992).  The                          
            power of a party to produce a witness may depend upon various                             
            factors, including the physical availability of the witness, his                          
            amenability to subpoena by the party, the existence of any                                
            special relationship between them, and the nature of the                                  
            testimony that the witness might be expected to give.  McClanahan                         

Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  Next

Last modified: May 25, 2011