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What is a Missing Witness Charge in a Medical Malpractice Case

It is not uncommon for the defense to have a witness, a critical witness that they have not brought in. For instance, in a medical malpractice case, the defense had hired a doctor to examine the injured victim. This is called an independent medical examination.

Now during the course of the trial, the plaintiff's lawyer is talking about his client's injuries, and the defense has the opportunity to bring in the independent doctor, talk about the plaintiff's injuries, and dispute the severity of those injuries. What happens if the defense does not bring their medical expert to testify, and they simply rely on cross-examining the doctors brought in by the plaintiff?

The Missing Witness Charge

Before the lawyers give their closing remarks, and before the judge gives the jury, legal instructions on the law in this particular case, the plaintiff now has the opportunity to ask the judge to give specific legal instructions. One of these instructions is a missing witness charge. This charge means, the jury can infer that the reason why the defense did not bring in their expert was that this witness would hurt their case. This is a critical inference because the jury can now infer that the entire reason why the defense did not bring this doctor to court to testify was because they knew it would hurt their case.

Why is it Important to Invoke this Charge

Basically, having a missing witness charge is critical; however, the defense is obviously going to argue against this charge, knowing how significant it can be to the jury. This same charge could be applied to the plaintiff as well. If the plaintiff has a doctor, who is treating him and the plaintiff's lawyer is unable to give a fantastic explanation as to why this doctor cannot come and testify in court, the defense will raise the same missing witness charge. This could be devastating for the plaintiff's case.

Missing witness charge is quite crucial in a medical malpractice, or accident case, as the jury is made to infer that the particular expert witness was not called in to testify because his testimony would harm the case of the particular party who was going to present the witness.

For instance, if the defense has taken the trouble of hiring a doctor to "independently" examine the plaintiff's injuries and come testify in court, then it means the doctor is going to say something about the injury that is going to be helpful for the defense. The doctor might say that the injuries are not as severe as they are being presented by the plaintiff, or the doctor might even say that the injuries are fake.

An Indication of a Weak Case

Therefore, when the defense has said they are going to present a crucial witness, and then they do not present such a witness without giving proper reason for his absence, then it should be inferred that the testimony of such a witness would have harmed their case. The plaintiff's lawyer can direct the attention of the jury to this point, by raising the customary missing witness charge.

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