In the New Jersey seminal case State v. Clawans, 38 N.J. 162, 170 (1962), the court held that a defendant is entitled to an adverse jury instruction when the state fails to call a material and corroborating witness in the case. Specifically, when this occurs the jury is entitled to be given an adverse jury charge that the testimony would be unfavorable to the State. A failure to call a cooperating witness by the State often occurs when multiple witnesses arrive at a crime scene or allegedly witnessed a crime committed by a defendant when one of the testifying witnesses (usually the complaining police officer), is known to be less than completely credible. In these cases the prosecutor will not risk having the truthful officer testify and contradict the lying officer.
In prosecuting cases the State will often fail to call corroborating police witnesses in their case-in-chief. This occurs most often in motions to suppress, in which the Clawans charge is technically inapplicable with pretrial motions because there are no jury charges in matters decided by the judge pretrial. Nonetheless, a criminal defense attorney arguing the case before the motion judge can argue a Clawans inference to the judge as to why the State has failed to call this witness.
However, in jury trials before the judge will give this charge under Clawans only if four factors are met. (1) Whether the missing witness was peculiarly within the party’s control (this factor is usually easy to meet with police witnesses); (2) Whether the witness was available, both practically and physically; (3) Whether the uncalled witness’s testimony appears to be superior to that already utilized regarding a fact to be proved or disproved. State v. Hill, 199 N.J. 545, 561 (2009)
Criminal defense attorneys (criminaldefensenj.com) must be aware of this charge and press to court to use it under the right circumstances. If defense counsel intends in asking for this charge, best practices is that defense counsel notify the court of its intention after the close of the State’s case in-chief.
This is blog is presented as a public service and for general criminal legal information by the Law Office of Vincent J. Sanzone, Jr., Esq.
Law Office of Vincent J. Sanzone, Jr., Esq.
277 North Broad Street
P.O. Box 261
Elizabeth, New Jersey
Telephone No. (908) 354-7006; Cell No. (201) 240-5716