## Facts

- A citizen reported a recent single-vehicle accident on a road in Leeds, Maine.
- Minutes later, she found Ricky Brewer alone in the driver’s seat of a pickup truck; the engine was not running.
- Brewer later entered the citizen’s home, where a Maine State Police trooper observed Brewer had a cut under his chin and scratches on his face.
- At the scene, the trooper found the truck lodged near a tree; the driver’s door could not open. The trooper observed tracks near the passenger-side area and could not determine how many occupants were in the truck at the time of the crash.
- The trooper observed a star-shaped crack high on the windshield near the driver’s side and glass fragments on both seats.
- Vehicle registration showed the truck was owned by Andrew Pratt.
- Brewer’s defense was that Pratt had been driving after the two had been drinking at a bar, and that Brewer was merely a passenger who awoke after the crash.
- Neither the State nor Brewer called Pratt to testify.
- In a bench trial, the judge drew an adverse inference from Brewer’s failure to call Pratt and found Brewer guilty of operating under the influence and operating after suspension.

## Issues

1. Whether a criminal factfinder may draw an adverse missing-witness inference against a defendant based on the defendant’s failure to call a potentially exculpatory witness.
2. Whether using that inference improperly shifts or distorts the prosecution’s burden to prove guilt beyond a reasonable doubt, requiring vacatur when the trial judge relied on it in a bench trial.

## Decision

- The Supreme Judicial Court of Maine vacated the judgment affirming Brewer’s convictions and remanded.
- The court held it was error to draw adverse inferences against Brewer from his failure to call Pratt.
- The court concluded the missing-witness inference is particularly inappropriate in criminal cases because it distorts the allocation of the burden of proof.
- Because the trial was to the court and the inference bore on the central disputed fact (who was operating the truck), the error could not be treated as harmless.

## Legal Principles

- In criminal cases, the prosecution bears the burden to prove every element beyond a reasonable doubt; the defendant has no obligation to produce evidence or call witnesses.
- A missing-witness inference against a criminal defendant is improper when it effectively penalizes the defendant for not presenting evidence and shifts part of the proof burden from the State.
- The inference is not justified where the witness is equally available to the prosecution and nothing shows the witness is under the defendant’s exclusive control.
- In a bench trial, an explicit adverse missing-witness inference used in resolving a key contested element can require vacatur and remand.

## Conclusion

The court vacated Brewer’s convictions because the trial judge’s adverse missing-witness inference from Brewer’s failure to call the truck owner improperly shifted the burden of proof in a criminal case and likely affected the finding that Brewer was the operator.


State v. Brewer, 505 A.2d 774 (Me. 1985)