Supremes: No More Adverse Inference for Absent Witnesses – State v. Hill

[7/14/09 – 6:04 pm] In State v. Clawans, 38 N.J. 162 (1962), the New Jersey Supreme Court established a procedure whereby a negative inference may be drawn by the fact-finder at trial when a party who could have been produced a critical witness does not do so. The inference to be drawn is that the missing witness was not called because he would have provided negative evidence against the party who failed to call him. This so-called “Clawans charge” has been part of the fabric of both our criminal and civil law for the past 47 years. Today, that changed. In this morning’s Supreme Court decision in State v. Hill, the Justices ruled that from now on, Clawans charges will not be available to the prosecution for use against a defendant. The Court noted that the use of this negative inference by the prosecution has the clear capacity to undermine the presumption of innocence that protects every defendant.

Download a copy of State v. Hill.

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