Tennessee Jury Instructions - Defendant's Failure to Testify
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The missing-witness rule as established in Graves is a broad version of the rule that remains largely intact today: If one party has a witness within its control and the witness has material evidence, failure to produce the witness and provide the evidence "creates the presumption that the testimony, if produced, would ...
At the request of a party the court shall order witnesses, including rebuttal witnesses, excluded at trial or other adjudicatory hearing. In the court's discretion, the requested sequestration may be effective before voir dire, but in any event shall be effective before opening statements.
The fact that a defendant did not testify may not be considered by the jury as proof that the defendant committed the crime. The defense may also waive his case.
RULE 38. In cases removed by appeal or otherwise to the chancery or circuit courts or to courts of similar jurisdiction, any party may demand a trial by jury of any issue triable of right by jury by filing written demand for jury trial within ten (10) days after the papers are filed with the clerk.
Upon a defendant's request, the state shall furnish the defendant with a copy of the defendant's prior criminal record, if any, that is within the state's possession, custody, or control if the district attorney general knows?or through due diligence could know?that the record exists.
The doctrine of unclean hands is limited to ?misconduct connected with the particular matter in litigation; and does not extend to any misconduct, however gross, which is unconnected therewith, and with which [the opposing party] is not concerned.? Chappell v.
The missing witness rule may apply when the evidence shows that a witness who was not called to testify knew about material facts, had a relationship with the party ?that would naturally incline the witness to favor the party,? and the witness was available to the process of the court.
2.12 Missing Witness If it is peculiarly within the power of the government to produce a witness who could give material testimony, or if the witness would be favorably disposed to the government, failure to call that witness may justify an inference that [his/her] testimony would be unfavorable to the government.