State v. Young
In State v. Young, 57 Conn. App. 566, 572, 750 A.2d 482 (2000), although the witness also had been charged in connection with the incident involving the defendant and had been advised to invoke his privilege against self-incrimination, the trial court ruled that he was available and, if his testimony were favorable, he would naturally have been called as a defense witness. State v. Young, supra, 57 Conn. App. 571.
In determining whether the Secondino instruction (Secondino v. New Haven Gas Co) had harmed the defendant, the Court noted that the prosecutor had repeatedly referred to the witness' absence in closing argument, and, because it was unlikely that the defendant could have obtained the witness' testimony, he "was powerless to contest the potential inference." Id., 575.
Also, the victim's credibility "was critical to the state's case"; id., 574; and the fact that the defendant had been acquitted of some of the charges showed that her testimony was not totally accepted. Id., 575.
The Court concluded that it was more probable that not that the "state of the evidence, coupled with the state's heavy reliance on the missing witness inference in its arguments to the jury . . . affected the result and caused the defendant substantial prejudice." Id.