Missing Witness Testimony: Expanding the “Noncumulative” Rule to All Four Departments

It is well-established in New York that a party may request and receive a “missing witness” jury instruction—i.e., that the jury may draw an unfavorable inference if the opposing party fails to call a witness who presumably has evidence that would aid that opposing party. People v. Smith (4th Dept. 6/29/2018) brought harmony to the Appellate Division by bringing the Fourth Department’s standard for a missing witness charge into conforming with the other three Departments.

In this case, the defendant was convicted by a jury at the lower court of Attempted Murder 2º, Assault 1º, and Criminal Use of a Firearm 1º. The defendant claims that his trial attorney rendered ineffective assistance of counsel, which the Court dismissed quickly, as the court determined defense counsel used a legitimate trial strategy.

What was at issue in this case is the contention by the defendant that Supreme Court erred in denying his request for a missing witness charge. In the First, Second, and Third Departments it is well-settled that the proponent of such a charge has the initial burden of proving that the missing witness has noncumulative testimony to offer on behalf of the opposing party.

In this case, the Court joined its sister departments and held that “when seeking a missing witness instruction, the movant has the initial, prima facie burden of showing that the testimony of the uncalled witness would not be cumulative of the testimony already given. In other words, it is the movant’s burden to establish, prima facie, that the missing witness’s testimony would not be ‘consistent with the other witnesses.'” (quoting People v Rivera, 249 AD2d 141, 142 (1st Dep’t 1998)).

In this case, the defendant failed to meet his burden. He does not argue otherwise, but simply contended that the burden was not his. The court rejected this approach in its adoption of the law, and therefore, the defendant’s conviction was affirmed.

Two Justices dissented, reading the Court of Appeals decision in People v. Gonzalez differently. They stated that the burden begins with the party seeking the charge to show entitlement, then shifts to the opposing party to demonstrate the charge would not be appropriate. In their view, it is only then that the issue of whether the testimony is cumulative would arise. (JC)

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