A trial judge's Jones v Dunkel direction should not be undermined by advising the jury to disregard the absence of witnesses, but failure to object or seek redirection at trial is a significant factor weighing against granting a new trial on appeal. An agreement between counsel at trial on how the case is to be put to the jury will bind the parties on appeal, and there is no injustice in holding a party to a tactical choice made by experienced counsel.
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