State v. Malave’s Empirical Analysis

Citation profile

4 district · 156 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 160 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “Every experienced trial lawyer knows that the decision to call a witness often turns on factors which have little to do with the actual content of his testimony. Considerations of cumulation and jury fatigue may preclude calling a witness who is entirely helpful; calculations that a witness may help a lot but hurt a little may compel restraint when counsel believes that his burden is already met. Then, too, questions of demeanor and credibility, hostility, and the like may influence the [party] not to produce a witness whose testimony might be entirely harmful to the [other party].”

   2 later decisions quote this exact passage
   e.g. Harris v. State · State v. Tahair

2. “In final argument, [the prosecutor] asked you to infer from the fact that the defendant did not bring Cindy Castro into court that if she did testify her testimony would have been unfavorable to the defendant. Under our law, if a party to a case has failed to call to the stand a witness who is within his power to produce, and who naturally would have been produced by him, you may infer that the testimony of the witness would have been unfavorable to the party failing to call her, and consider that fact in arriving at your decision. You may draw such an inference, but you are not required to draw such an inference. You may draw such an inference only if you determine it is a reasonable and logical inference to be drawn. In order to make this inference in this case, you must first find that it is more probable than not that Cindy Castro is available; and second, that she is a witness whom the defendant would naturally produce. Whether the witness is available is a question of fact for you to determine, before you draw an inference adverse from her absence. Availability may be determined not only from mere physical presence, but also from the usefulness or nature of the expected testimony. Also relevant is whether the witness is in such a relationship with the defendant that it is likely that her presence could be procured. A witness who would naturally be produced by a party is one who is known to that party, and by reason of her relationship to that party or the issues in the ”

   1 later decision quote this exact passage
   e.g. 383 F. Supp. 2d 327 - Malave v. Gomez

3. “For decades, this court ... has sanctioned a [missing witness] jury instruction that “... permits the inference that [a] witness, if called, would have exposed facts unfavorable to the party’s cause.” ... ... “[A]ny logical basis for the missing-witness inference [has been removed] by abolishing the practice of vouching. ... Since neither party vouches for any witness’s credibility, the failure of a party to call a witness cannot be treated as an evidentiary fact that permits any inference as to the content of the testimony of that witness.” [ (quoting State v. Brewer, 505 A.2d 774, 776-77 (Me.1985)).] ... We conclude that such a result cannot be justified now because the missing witness “charge is no longer warranted in most situations, and in those few instances in which it might apply, a mandated judicial instruction overemphasizes its usefulness to the jury. In the end it be-comes an adversarial game refereed by judges, a game which generates much heat, sheds little light, and consumes scarce judicial resources.””

   1 later decision quote this exact passage · from the concurrence
   e.g. Patterson v. State