Sam Adam, Jr., the attorney for Rod Blagojevich had a heated argument with the trial judge about whether Adam could argue in closing that the witnesses not called by the prosecution would have supported Blagojevich's defense. The judge threatened Adam with contempt if he violated the court's ruling that the defense could not argue about the "witnesses not called." Today the judge smoothed any ruffled feathers by emphasizing that the judge never used the word "jail" during the hearing. "Jail" was the word that Adam used.
Regardless, this story suggests that while Adam may have been upset because the judge's ruling shut down an important theme for the defense, it's possible that Adam was just stalling for time so that his closing wouldn't be broken into two pieces across two days. Gee, would a trial lawyer ever use smoke and mirrors to buy time to set up a better closing?
In my trials, in civil practice, the "witness not called" was a standard jury instruction, but of course the judge has enormous discretion over the trial and, for all I know, criminal trials differ from civil trials on that point. Even when you could make an argument on that point, you couldn't tell the jury what the witness would have said; you could just mention, for example, that the plaintiff corporation never called the Senior VP who was present at the key meeting, or something like that. The Huffington Post has a nice article on the issue.
[edit] Talk Left has a nice discussion of the "missing witness" instruction in criminal cases and it does appear that the instruction is disfavored and largely left to the judge's discretion.
The irony, of course, is that the real "witness not called" is Blagojevich himself -- and for that matter the defense didn't call any witnesses at all. In fact, Adam had promised jurors in the opening statement that Blagojevich would take the stand. I am not denigrating the Fifth Amendment or the fact that the burden rests entirely on the prosecutor. (And, of course, in closing arguments prosecutors cannot overtly call attention to the fact that the defendant didn't take the stand.) But when a criminal defense counsel makes a "witness not called" argument, there is always a concern about what thoughts that might trigger in the jury's mind, especially when the defense didn't call any witnesses.
In his closing, here's how Adams is dealing with his promise that Blagojevich would take the stand: "I promised each and every single one of you that Rod was going to get up there and take the stand," Adam says. And at opening statement I gave you my word and I meant every word of it," he says. "I had no idea no idea that in two months of trial (the government) would prove nothing."
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