Often times people who you think would testify at trial do not. In some cases, the Court can allow a party to argue that the reason that person did not appear is because their testimony would have been unfavorable. Put differently, the trial court has discretion to allow parties to “argue an adverse inference from failure to produce a witness.” State v. Dizer, 119 S.W.3d 156, 164 (Mo. Ct. App. 2003). You cannot make this argument if the witness is equally available or unavailable to both parties.
Courts consider three factors when determining whether a witness is “equally available”: (1) one party’s superior ability to know or identify the witness; (2) the nature of the testimony expected to be given by the witness; and (3) a relationship between a party and the witness which indicates a likelihood that the witness would testify more favorably for one party than the other. State v. Wallace, 43 S.W.3d 398, 404 (Mo. Ct. App. 2001).