M Civ JI 6.01 Failure to Produce Evidence or a Witness

(a) *(The [ plaintiff / defendant ] in this case has not offered [ the testimony of [ name ] / [ identify exhibit ] ]. As this evidence was under the control of the [ plaintiff / defendant ] and could have been produced by [ him / her ], and no reasonable excuse for the [ plaintiff’s / defendant’s ] failure to produce the evidence was given, you may infer that the evidence would have been adverse to the [ plaintiff / defendant ].)

(b) †(The [ plaintiff / defendant ] in this case has not offered [ the testimony of [ name ] / [ identify exhibit ] ]. As no reasonable excuse for the [ plaintiff’s / defendant’s ] failure to produce this evidence was given, you may infer that the evidence would have been adverse to the [ plaintiff / defendant ], if you believe that the evidence was under the control of the [ plaintiff / defendant ] and could have been produced by [ him / her ].)

(c) **(The [ plaintiff / defendant ] in this case has not offered [ the testimony of [ name ] / [ identify exhibit ] ]. As this evidence was under the control of the [ plaintiff / defendant ] and could have been produced by [ him / her ], you may infer that the evidence would have been adverse to the [ plaintiff / defendant ], if you believe that no reasonable excuse for [ plaintiff’s / defendant’s ] failure to produce the evidence has been shown.)

(d) ††(The [ plaintiff / defendant ] in this case has not offered [ the testimony of [ name ] / [ identify exhibit ] ]. You may infer that this evidence would have been adverse to the [ plaintiff / defendant ] if you believe that the evidence was under the control of the [ plaintiff / defendant ] and could have been produced by [ him / her ], and no reasonable excuse for [ plaintiff’s / defendant’s ] failure to produce the evidence has been shown.)

Note on Use

The words “plaintiff” and “defendant” may be replaced by “petitioner” and “respondent” in cases in which the latter terms are used to describe the parties.

If requested, the appropriate one of the above instructions should be given under the following circumstances:

*Instruction a should be given when the Court finds that—

1. the evidence was under the control of the (plaintiff) (defendant) and could have been produced by him or her;

2. no reasonable excuse for (plaintiff’s) (defendant’s) failure to produce the evidence has been shown; and

3. the evidence would have been material, not merely cumulative, and not equally available to the opposite party.

†Instruction b should be given when a question of fact arises in regard to “control” in subparagraph 1 above, and the Court finds in the affirmative in regard to subparagraphs 2 and 3 above.

**Instruction c should be given when a question of fact arises in regard to “reasonable excuse” in subparagraph 2 above, and the Court finds in the affirmative in regard to subparagraphs 1 and 3 above.

††Instruction d should be given when a question of fact arises in regard to both “control” and “reasonable excuse” in subparagraphs 1 and 2 above, and the Court finds in the affirmative in regard to subparagraph 3 above.

Comment

For general authority on the above instructions, see Vergin v Saginaw, 125 Mich 499; 84 NW 1075 (1901); Dowagiac Manufacturing Co v Schneider, 181 Mich 538; 148 NW 173 (1914); Fontana v Ford Motor Co, 278 Mich 199; 270 NW 266 (1936); Ward v Consolidated Rail Corp, 472 Mich 77 (2005).

For authority on the limitation in regard to “control,” see Prudential Insurance Co v Cusick, 369 Mich 269; 120 NW2d 1 (1963); Barringer v Arnold, 358 Mich 594; 101 NW2d 365 (1960); Brandt v C F Smith & Co, 242 Mich 217; 218 NW 803 (1928); in regard to “reasonable excuse,” see Cole v Lake Shore & M S R Co, 81 Mich 156; 45 NW 983 (1890); Leeds v Masha, 328 Mich 137; 43 NW2d 92 (1950); in regard to “material,” see Dowagiac Manufacturing Co; in regard to “merely cumulative,” see Barringer; in regard to “equally available,” see Urben v Public Bank, 365 Mich 279; 112 NW2d 444 (1961); Barringer; DeGroff v Clark, 358 Mich 274; 100 NW2d 214 (1960); Macklem v Warren Construction Co, 343 Mich 334; 72 NW2d 60 (1955); Holmes v Jones, 41 Mich App 63; 199 NW2d 538 (1972); Kaniewski v Emmerson, 44 Mich App 737; 205 NW2d 812 (1973). See also United States v Beekman, 155 F2d 580, 584 (CA 2, 1946); Prudential Insurance Co.

History

M Civ JI 6.01 was SJI 5.01.