## Facts

- Alex Malave was prosecuted for a June 12, 1994 stabbing outside a Meriden social club involving brothers Oswaldo and Jose Garcia.
- Evidence at trial described a fight in which Malave allegedly retrieved a knife that fell to the ground and stabbed Oswaldo multiple times, then stabbed Jose as Jose attempted to drive away.
- Malave asserted an alibi, claiming he was inside a nearby pool hall during the fight.
- The defense indicated that Cindy Castro could corroborate the alibi but did not call her to testify.
- Over defense objection, the trial court gave a “missing witness” instruction permitting the jury to infer that Castro’s testimony would have been unfavorable to the defense.

## Issues

1. Whether, as a matter of policy, Connecticut should abandon the Secondino missing-witness instruction in criminal cases.
2. If the Secondino instruction should be abandoned, whether giving that instruction in Malave’s trial required reversal of his convictions.

## Decision

- The Connecticut Supreme Court abandoned the Secondino missing-witness instruction in criminal cases going forward.
- The Court held that the instruction given at Malave’s trial did not require reversal because any error was harmless.
- The Court affirmed the Appellate Court’s judgment and left Malave’s convictions intact.
- The Court distinguished between a judge-given missing-witness instruction (disallowed) and counsel’s permissible closing-argument comment about an absent witness (not categorically barred).

## Legal Principles

- Connecticut courts may, under supervisory/common-law authority, discontinue a longstanding evidentiary instruction in criminal cases based on policy considerations.
- The Secondino instructional rule was rejected in criminal cases because:
  - modern discovery and evidentiary practices reduce the need for a formal adverse-inference instruction;
  - the inference rests on a speculative premise that nonproduction implies adverse testimony;
  - litigation over “availability” and whether a witness “naturally would be produced” consumes substantial trial resources; and
  - the instruction raises policy concerns implicating fair-trial values (even if not dispositively unconstitutional).
- When an improper jury instruction is challenged, reversal is not required if there is no reasonable likelihood the instruction affected the verdict; a permissive inference instruction and strong evidence of guilt support a finding of harmlessness.
- Abolishing the Secondino instruction does not necessarily prohibit lawyers from arguing reasonable inferences in summation from a party’s failure to call a witness, subject to ordinary trial constraints.

## Conclusion

Connecticut eliminated the judge-given Secondino missing-witness instruction in criminal trials as a policy matter, but affirmed Malave’s convictions because the permissive instruction in his case was harmless in light of the overall evidence and the lack of a reasonable likelihood of prejudice.


State v. Malave, 250 Conn. 722, 737 A.2d 442 (Conn. 1999)