No court in the trial of a civil action may instruct the jury that an inference unfavorable to any party's cause may be drawn from the failure of any party to call a witness at such trial. However, counsel for any party to the action shall be entitled to argue to the trier of fact during closing arguments, except where prohibited by section 52-174, that the jury should draw an adverse inference from another party's failure to call a witness who has been proven to be available to testify.
(P.A. 98-50.)
Legislature intended not only that there be advance notice of counsel's intent to invite jury to draw an adverse inference from a party's failure to call a witness, but also that there be an advance ruling by trial judge that counsel has provided some evidentiary basis entitling him or her to do so. 72 CA 359. Defendant was properly permitted to present in closing argument that the jury could draw an adverse inference from plaintiff's decision not to call his wife as a witness. 123 CA 555. Trial court properly cautioned defendants' counsel from making further comment on plaintiffs' decision not to call a witness to testify because counsel had not established the witness's availability or informed the court he would be making an argument that the jury should draw an adverse inference from plaintiffs' failure to produce the witness. 156 CA 453.