Category Archives: Evidence

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)

Trustworthiness of Statements Against Penal Interest: How Far Should Courts Inquire?

In People v. Thibodeau (Ct. App. 6/14/18) (4-3), the defendant was convicted in 1995 of Kidnapping 1º after an 18-year-old convenience store clerk disappeared. At trial, the evidence provided that the missing clerk rang up the defendant’s brother for a pack of cigarettes just minutes before she disappeared. Eyewitness testimony also provided an account of two men and a women in the parking lot of the store near a “whitish blue van.” Other incriminating testimony offered at trial included self-declared admissions by the defendant to his inmates, including that the clerk was “killed with his shovel and mutilated.” Nineteen years later, the defendant moved to vacate his conviction because of newly discovered evidence, namely third-party admissions of three men in connection with the clerk’s disappearance.

The lower court found the new evidence lacking; it found that the third-party admissions to be inadmissible hearsay. The Appellate Division affirmed, with one dissenting Justice who granted the defendant leave to further appeal. The Court of Appeals considered whether the defendant’s motion was improperly denied by analyzing the newly admitted evidence standard.  A split 4-3 Court held that the motion was properly denied.

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The Necessity of Preservation for Appeal

While defendants may appeal certain rulings that took place during a trial, these issues must have been preserved properly for appeal. In People v. Bailey (Ct. App. 6/14/2018) (Rivera, J.) (6-1), the Court of Appeals held that in order to object to a trial court’s lack of inquiry following an outburst into a juror’s impartiality, the defendant must preserve the objection. Additionally, the Court found that testimony about gang customs and practices was not excessive.

This case stemmed from a trial in which defendant and two inmates were being prosecuted for assault of another inmate when they were all incarcerated at Manhattan Detention Complex. During the trial, defendant’s counsel sought to elicit statements that supported defendant’s theory that his assault was to protect himself after the complainant started a fight due to a codefendant using a racially derogatory term in his direction. On cross-examination, the defendant’s attorney asked if one of the codefendants provoked him and called him an “old n*****.” When complainant said he was not provoked and did not remember if that particular phrase was used, counsel persisted. Continue reading

Excited Utterances: Pinned at the Scene of the Crime

The law of the case doctrine and the excited utterance exception to the hearsay rule are two very fact-specific determinations. The law of the case doctrine is not meant to be a limitation on judicial discretion or power; however, judges should not completely disregard prior decisions made within a single case. Similarly, the foundation and basis of the excited utterance exception is crucial in determining whether it should be applied to the statements of a specific case at hand. Recently, in People v. Cummings (Ct. App. 5/8/18) (Wilson, J.) (6-1-0), the Court found that a lower court erroneously admitted such statements, leading to the conviction of the defendant, Cummings. There, the out-of-court statements were extracted from the background of a 911 call, made by an unidentified person. Continue reading

Family and friends constitute a community and may offer testimony about the complainant’s truthfulness

Family and friends may constitute a relevant "community" for testimony about an opposing witness’s poor reputation for truth and veracity. In People v. Fernandez (Ct. App. 6/2/2011) (Ciparick, J.) (5-2), the Court of Appeals held that the  trial court deprived the jury of important information and abused its discretion by excluding testimony from the Defendant’s parents about the complainant’s reputation for truthfulness. The Defendant, 17 years old when indicted, had allegedly engaged in sexual conduct with the complainant, his then eight-year-old niece. During the relevant five month time period, the Defendant had been living with his parents, who unsuccessfully attempted to offer testimony about the complainant’s poor reputation for truthfulness among their large family. 

At trial, the jury heard conflicting testimony. The complainant testified that she visited and was sexually abused by the Defendant in his home more than five times in 2005. By contrast, the Defendant denied any sexual encounters and asserted that only two visits occurred. His parents – the complainant’s biological great-aunt and uncle – corroborated his version of the events and added that a “house rule” prohibited the children from going upstairs without adult supervision. 

After the Defendant’s parents established that they had known the complainant all her life and frequently spoke with relatives and friends about the complainant’s reputation for truthfulness, defense counsel asked the parents to identify that reputation. The People objected and stated that (1) no foundation had be established and (2) that the Complainant’s family and friends did not constitute a “community.” The trial judge agreed. 

The Defendant was convicted of Sexual Abuse 1° and 2° and Endangering the Welfare of a Child, but was acquitted of the more serious Rape 1° and Sexual Conduct Against a Child 2° charges. The Defendant unsuccessfully moved to set aside the verdict pursuant to CPL 330.30 and argued that the trial court erred when it precluded the defense from eliciting testimony about the complainant’s reputation in the community for truthfulness. The Appellate Division affirmed, but the Court of Appeals reversed.

The Court began by stating that a community is not limited to one’s residential neighborhood. Further, once a proper foundation is established, the jury must evaluate the credibility of character witnesses who testifies and decide how much weight to give the views reported in the testimony. Whether family and friends constitute a relevant community for “purposes of introducing testimony pertaining to an opposing witness’ bad reputation for truth and veracity” was a question of first impression for the Court and was answered in the affirmative.

The Court held that the testimony from Collazo and Ramona Fernandez – the Defendant’s parents – provided a proper foundation for reputation evidence. They had known the complainant since her birth and were members of the same large, extended family – 25-30 people. This testimony sufficiently established a foundation to admit further testimony regarding the complainant’s poor reputation for truth and veracity in the community. 

The majority emphasized that presenting “reputation evidence by a criminal defendant is a matter of right, not discretion,” assuming a proper foundation had been laid. Additionally, any purported bias could have been explored on cross-examination. The court granted a new trial. 

Judge Graffeo dissented and argued that because a child’s emotional well-being is derived from “support and guidance, care and protection, and acceptance and affection” from relatives, the family members should not be allowed to provide testimony on this topic. Further, a jury would question the credibility of such testimony, which is likely biased. In addition to emphasizing the potentially disastrous psychological consequences for the child, the dissent identified alternative sources for reputation evidence, including teachers, school counselors, and other community members. These individuals would have been able to sufficiently address the child’s reputation without bias and avoid the negative impact on the child’s emotional welfare.  (RB/LC)