McGlone v. Superior Trucking Co., Inc

In McGlone v. Superior Trucking Co., Inc., 178 W.Va. 659, 363 S.E.2d 736 (1987), the Court departed from versions of the instruction previously approved. McGlone made clear that no presumption arises from the failure to call a witness, that the instruction, if used, could not direct the jury to draw an adverse inference from the failure to call a witness, and that the use of such an instruction in criminal cases did in fact raise serious constitutional problems. The Court cautiously approved a non-binding instruction in McGlone for use in appropriate civil cases based upon this principle of law: "The unjustified failure of a party in a civil case to call an available material witness may, if the trier of the facts so finds, give rise to an inference that the testimony of the "missing" witness would, if he or she had been called, have been adverse to the party failing to call such witness." (Id. at 661, 363 S.E.2d at 738, syl. pt. 3, in part.) The instruction given in McGlone, which the Court specifically rejected, read as follows: "The Court instructs the jury that the failure of the plaintiff to call those doctors that saw and treated her immediately following the accident gives rise to a presumption that had those doctors testified, their testimony would have been adverse to Priscilla McGlone." (Id. at 663, n. 4, 363 S.E.2d at 740, n. 4.)