Appeals court weighs missing‑witness instruction and video evidence in Rivera consent case

The panel heard argument in Commonwealth v. Eric Mitchell Rivera, a case focused on consent and whether the trial judge should have issued a missing‑witness jury instruction. Appellant counsel argued the absent victim was the central witness on consent and that the jury should have been allowed to consider why she did not testify.

Counsel noted that while surveillance video exists, the question is whether the video supplies the specific, observable substitute evidence the cases allow (for example extreme intoxication indicators). The Commonwealth argued the video and other trial evidence were sufficiently conclusive and said the defense never made the formal showing required for the powerful missing‑witness instruction.

The panel questioned whether the strength of the video evidence should reduce the need for the victim's presence and probed whether trial counsel preserved the missing‑witness claim and met the four‑factor test. Counsel for both sides disputed whether, on this record, a missing‑witness instruction would have produced any incremental benefit to the defendant. The matter was submitted at the close of argument.