Law Lessons from DEB ASSOCIATES and JOSEPH ROLANDELLI v. FOREVER YOUNG MEDICAL DAYCARE, LLC, MARIA KIPNIS, MARINA NABUTOVSKAYA, MARIYA TOLCHEVA, SVETLANA KESTEL, JOSEPH RODRIGUES, ESTATE OF DEAN RICCIARDI and SUSAN RICCIARDI, App. Div., A-3373-09T3, February 8, 2011:
“[A]n adverse inference may be drawn against a party from the failure to produce a witness if (1) that party had the power to produce the witness, and (2) the witness’ testimony would have been superior to that of the witnesses who did actually testify.” State v. LaBrutto, 114 N.J. 187, 202-03 (1989) citing State v. Clawans, 38 N.J. 162, 171 (1962)).
In determining the appropriateness of an adverse inference instruction, the court should consider three factors: whether the witness was available to both parties; whether such testimony would “`elucidate relevant and critical facts in issue’”; and whether there is a “`special relationship’” between the party producing the witness and the witness. Nisivoccia v. Ademhill Assocs., 286 N.J. Super. 419, 428 (App. Div. 1996) (quoting State v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985)).
Whether to provide an adverse inference charge rests with the sound discretion of the court. Clawans, supra, 38 N.J. at 170.
“An attorney who seeks to comment upon the nonproduction of a witness [should] advise the trial judge and opposing counsel of his intention before summation”. Nisivoccia, supra, 286 N.J. Super. at 429.
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