Voices from an empty chair: The missing inference and the jury.

Webster, T., King, N., & Kassin, S. M. (1991). Voices from an empty chair: The missing inference and the jury. Law and Human Behavior, 15, 31-42.

According to the empty chair doctrine, lawyers may comment on the absence of a prospective opposing witness and judges may invite the jury to draw adverse inferences from that lack of evidence. A mock jury study was conducted to determine how people react to absent witnesses and evaluate the effects of empty chair comments on decision making. Fifty subjects read a trial transcript in which a central or peripheral defense witness did not testify, and in which the prosecuting attorney did or did not suggest making an adverse inference. Pre- and postdeliberation results indicated that subjects who were in the comment condition were less favorable to the defense when the missing witness was central, but they were more favorable when that witness was peripheral. These results are discussed for their practical implications.

Juror postdeliberation verdicts unaffected by missing witness when no mention made of absence by prosecution; when prosecutor noted absence and judge invited inference, jurors more likely to favor conviction when missing witness was peripheral (i.e., coworker) as opposed to central (i.e., close friend).

http://www.jstor.org/stable/1394049?seq=1#page_scan_tab_contents