In State v. Blair, the Washington Supreme Court held for the first time that the state may use the missing witness doctrine against criminal defendants. Under the missing witness doctrine, which provides a permissive inference based on a defendant's failure to present available witnesses, prosecutors may now argue that a defendant failed to call certain witnesses because the defendant feared that their testimony would have been incriminating. This Note examines the court's decision in State v. Blair, the formulation of the missing witness doctrine adopted by the court, and the common law origins of the missing witness doctrine. This Note argues that the Blair court failed to examine the most compelling constitutional issues raised by its use of the missing witness doctrine and concludes that although the court correctly decided the issues presented in Blair, Washington courts should narrowly interpret the holding of Blair and prohibit the use of the doctrine against criminal defendants on constitutional grounds not addressed in State v. Blair.
Carl T. Edwards,
Speak of the Missing Witness, and Surely He Shall Appear: The Missing Witness Doctrine and the Constitutional Rights of Criminal Defendants—State v. Blair, 117 Wash. 2d 479, 816 P.2d 718 (1991),
67 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol67/iss3/7