Jury Instructions - Missing Witness

United States v. Leal-Del Carmen, 697 F.3d 964 (9th Cir. 2012)

Deporting a potentially exculpatory witness prior to providing the defense an opportunity to interview the witness violates the defendant’s right to compulsory process and to due process. The defendant, however, is required to show that the government acted in bad faith, a showing that was, in fact, made in this case, because the government had interviewed the witness prior to deporting him. The Ninth Circuit held that once the government is aware that a witness has exculpatory evidence, the government must alert the defense. If defense counsel has not yet been appointed or retained, the government may not deport the witness until after counsel is appointed or retained and given an opportunity to preserve the testimony. The Ninth Circuit also held that the trial court should have permitted the defendant to introduce the witness’s statement to the border agent prior to being deported. The out-of-court declaration was admissible pursuant to Rule 804(b)(6) – the forfeiture by wrongdoing hearsay exception – because the government rendered the witness unavailable. Finally, the appellate court held that the defendant was entitled to a “missing witness” instruction that would have advised the jury that the failure of a party to produce a material witness who could elucidate matters under investigation gives rise to a presumption that the testimony of that witness would be unfavorable to that party if the witness is pecurliarly within the party’s control. The deported witness could have been paroled back into the country, but only the government could produce the witness under that procedure. “For the government to say that it isn’t responsible for her absence because it no longer knows where to find her comes close to the classic definition of chutzpah.”