Cooper v. United States

18 Citing cases

  1. McPherson-Corder v. Chinkhota

    835 A.2d 1081 (D.C. 2003)   Cited 3 times
    Discussing this and other courts' aversion to the instruction and stating that it is seldom an abuse of discretion to deny it

    Ordinarily, therefore, a witness who is amenable to subpoena and is not uncooperative will not be deemed peculiarly available to a party if the opposing party knows or with reasonable diligence should know the witness's identity — for then the witness is available more or less equally to both sides. Cf. Katkish v. District of Columbia, 763 A.2d 703, 707 n. 2 (D.C. 2000); Cooper v. United States, 415 A.2d 528, 533 n. 11 (D.C. 1980). This point has special force in civil litigation such as the present case, where the parties have effective tools of discovery at their disposal.

  2. Miles v. United States

    483 A.2d 649 (D.C. 1984)   Cited 23 times
    Permitting an in-court identification after prosecutor showed the witness around the courtroom and noted the location of the defense table

    See Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 41, 37 L.Ed. 1021 (1893); Thomas v. United States, 447 A.2d 52, 57 (D.C. 1982); Cooperv. United States, 415 A.2d 528, 533 (D.C. 1980). A witness is not peculiarly available to a party when there is a showing that his identity was known to the opposing party seeking the instruction, who thus could require his physical presence by subpoena.

  3. German v. U.S.

    525 A.2d 596 (D.C. 1987)   Cited 40 times
    Emphasizing that “the mere fact of a sentence increase does not show vindictiveness”

    The party who seeks a missing witness instruction must first establish: (1) that the witness is "peculiarly available" to the party against whom the inference is sought to be made; and (2) that the witness' testimony would be likely to elucidate the transaction at issue. Miles v. United States, 483 A.2d 649, 657-58 (D.C. 1984); see also Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 41, 37 L.Ed. 1021 (1893); Thomas v. United States, 447 A.2d 52, 57 (D.C. 1982); Cooper v. United States, 415 A.2d 528, 533 (D.C. 1980). Because Anderson cannot be located and cannot be brought to court, no factual conclusion can be drawn from the failure to produce him.

  4. Parks v. United States

    451 A.2d 591 (D.C. 1982)   Cited 55 times
    Noting "[i]t was the jurors' proper role, therefore, to determine the weight that [witness'] in-court identification deserved."

    See Dent, supra at 169-70; Givens, supra at 26. See also Cooper v. United States, D.C.App., 415 A.2d 528, 532-35 (1980) (trial court may give instruction allowing adverse inference only if same criteria are satisfied); Coombs v. United States, D.C.App., 399 A.2d 1313, 1316 (1979) (same). Not having sought the court's approval of his comments, the prosecutor obviously did not make the necessary showing that Rositta Ross was unavailable to be called as a witness by the government, see Coombs v. United States, D.C.App., 399 A.2d 1313, 1317 (1919), or that her testimony would be elucidating rather than merely cumulative of her mother's evidence.

  5. Harris v. United States

    430 A.2d 536 (D.C. 1981)   Cited 16 times
    In Harris, the prosecutor remarked that "evidence that he's a thief is introduced to tell you that he's not the kind of man you should believe when he gets up on the witness stand."

    Cornbread allegedly could have corroborated appellant Harris' account of his innocent presence in the area, a place where undercover policemen journeyed specifically to make narcotics purchases which was a known "regular beat" for Dilaudid. Because no other witness testified in support of Harris' alibi defense, Cornbread would have supplied superior, non-cumulative testimony. See Cooper v. United States, D.C.App., 415 A.2d 528, 534 (1980) (missing witness instruction erroneously given where witness' testimony, because cumulative, could not elucidate an issue in the case.) The trial judge did not err in concluding that Cornbread's testimony could have elucidated the transaction; we find no error in the missing witness instruction's having been given as to him.

  6. Strong v. U.S.

    665 A.2d 194 (D.C. 1995)   Cited 4 times

    "Although the witness may be physically available to both sides, if a party has a special relationship with a witness, that witness becomes unavailable in a practical sense to the opposing party because his testimony is expected to be hostile." Dent v. UnitedStates, 404 A.2d 165, 170 (D.C. 1979). Special relationships can include a girlfriend, Hale, supra, 361 A.2d at 216; a government informer, Burgess v. United States, 142 U.S.App.D.C. 198, 204, 440 F.2d 226, 232 (1970); an employer-employee, Milton v. United States, 71 App.D.C. 394, 397, 110 F.2d 556, 559 (1940); or a relative, Cooper v. United States, 415 A.2d 528, 532-34 (D.C. 1980). However, an occasionally employed paid government informer is not peculiarly available to the government.

  7. Ray v. U.S.

    616 A.2d 333 (D.C. 1992)   Cited 2 times
    Detailing the legal principles governing the decision whether to give a missing witness instruction

    Both also described appellant's flight and saw him drop the bag retrieved by Johnson and found to contain cocaine. From the government's standpoint, therefore, Smith's testimony (if he were available) would have been at best cumulative and clearly not "superior to other testimony already given on the matter." Cooper v. United States, 415 A.2d 528, 534 (D.C. 1980) (quoting Brown v. United States, 134 U.S.App.D.C. 269, 270-71 n. 2, 414 F.2d 1165, 1166-67 n. 2 (1969)). Indeed, there is no indication he could have testified at all about the key event of appellant dropping the cocaine. As the trial judge stated:

  8. Lemon v. U.S.

    564 A.2d 1368 (D.C. 1989)   Cited 47 times
    Finding "negligible" possibility of prejudice from introduction of the co-defendant's inadmissible hearsay statement where the co-defendant adopted the substance of the statement in her live testimony on the witness stand and was subject to cross-examination

    According to Prince's brief on appeal, Nelson had been interviewed by the police and subpoenaed to the grand jury.Compare Cooper v. United States, 415 A.2d 528, 534 (D.C. 1980) with Brown v. United States, supra, 555 A.2d at 1036 and Shelton v. United States, 388 A.2d 859, 864 (D.C. 1978). In cases of improper missing witness argument, it is often difficult for an appellate court to determine with the requisite level of certainty that the defendant was not prejudiced, and reversal is ordinarily appropriate.

  9. McGlone v. Superior Trucking Co., Inc.

    178 W. Va. 659 (W. Va. 1987)   Cited 30 times
    Stating that reliance onTenpin Loungewas misplaced since no request for hearing on juror testimony was made

    The courts, too, are mindful of the dangers inherent in the use of an instruction on the nonproduction of particular evidence at trial, for example, the danger that such an instruction permitting an adverse inference may add a fictitious weight to the case of the proponent of the instruction. Cooper v. United States, 415 A.2d 528, 533 (D.C. 1980). It has also been held in at least one jurisdiction that a missing-witness instruction adverse to the defendant has no place in a criminal case, where such instruction states that the failure to call an available material witness "raises a presumption" which, to avoid the adverse finding, must be rebutted by evidence.

  10. Singley v. U.S.

    533 A.2d 245 (D.C. 1987)   Cited 14 times
    In Singley, we cited Edelin v. United States, 227 A.2d 395, 399 (D.C. 1967), which also involved traces and where we noted that there was "no additional proof" of its usability as a narcotic.

    The facts do not compel the finding that the failure to produce Mosley should be considered evidence that he would have contradicted the government's version of the events. See Cooper v. United States, 415 A.2d 528, 534 (D.C. 1980) ("we risk considerable unfairness by using the missing witness instruction to create adverse evidence"). First, the failure to call Mosley does not engender any legitimate suspicion because he could not aid the government's case in any meaningful way.