The missing witness charge has long been a fixture in New York in both civil and criminal trials. (The early New York cases, and accompanying commentary, are cited in Laffin v. Ryan, 4 A.D.2d 21, 24-25 (3d Dep't 1957).) As a general proposition, it “allows a jury to draw an unfavorable inference based on a party's failure to call a witness who would normally be expected to support that party's version of events. People v. Savinon, 100 N.Y.2d 192, 196 (2003). In People v. Smith, 2019 NY Slip Op. 04447 (June 6, 2019), the Court of Appeals once again addressed the charge, this time in the context of its “non-cumulative testimony” precondition and the burden shifting analysis necessary to determine whether that precondition has been met. Since Smith rejected an approach to the non-cumulative precondition followed in all four Appellate Divisions and provided further insights into the charge as well, this column will discuss it.

Missing Witness Charge

The Court of Appeals has noted the missing witness charge rests on “the commonsense notion that “the non-production of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party's cause.” People v. Gonzalez, 68 N.Y.2d 424, 427 (1986) (citations omitted). While the court did not state the exact nature of the unfavorable inference, it subsequently approved the charge as given in civil actions, found in Pattern Jury Instructions 1:75, which advises a jury that if a party fails to offer a reasonable explanation for its failure to call a witness to testify on an issue, then the jury “may, although [it is] not required to, conclude that the testimony of [the witness] would not support [that party's] position on the question … and would not contradict the evidence offered by [the opposing party] on this question and you may draw the strongest inference against [that party] on that question, that opposing evidence permits.” 1A NY PJI3d (2019 ed.) 1:75. As to criminal actions, the Court of Appeals approved the Criminal Model Jury Instruction charge, now found in CJI2d (NY) (“A Party's Failure to Call a Witness”), which provides the fact finder may infer from a party's failure to call a witness that has knowledge on a relevant issue that if the witness had been called, he would not have supported the defense testimony on the issue of which he possessed knowledge. See People v. Paylor, 70 N.Y.2d 146, 149 (1987). (It has been observed in an authoritative treatise that the inference may be stronger when the prosecutor fails to call a friendly witness. Barker and Alexander, Evidence in New York State and Federal Courts (2d ed.) §4:5, n. 9.)

The mere failure of a party to produce an apparently knowledgeable witness at trial is insufficient to warrant the giving of the missing witness charge. Rather, the Court of Appeals has set forth preconditions for the missing witness charge, applicable in both civil and criminal actions: (1) the witness's knowledge is material to an issue in the trial; (2) the witness is expected to give non-cumulative testimony; (3) the witness is under the control of the party against whom the charge is sought; and (4) the witness is available to that party. Devito v. Feliciano, 22 N.Y.3d 159, 165 (2013). (These preconditions are fully discussed in the comment to PJI 1:75.1A NY PJI3d (2019 ed.) at p. 119-25.) If an uncalled witness has personal knowledge about a fact that is relevant in the action, is available to and under control of a party who would normally be expected to call the witness, and the testimony would not be cumulative of testimony or other evidence favoring that party, the charge should be given.

As to establishing these preconditions, all four Appellate Division departments followed the same burden-shifting analysis to determine whether they were established. Prior to Smith, the uniform approach was as follows: Once the party seeking the charge presented prima facie evidence that an uncalled witness was knowledgeable about a material issue in the action and would be expected to give non-cumulative testimony favorable to the opposing party, the opposing party, to avoid the charge, has the burden to show the witness is either unavailable to testify, there is no control over the witness, the witness is not knowledgeable about the issue, the issue is not material, or the testimony would be cumulative. See People v. Smith, 162 A.D.3d 1686, 1686-90 (4th Dep't 2018) (collecting cases). The Court of Appeals decision in Gonzales, 68 N.Y.2d at 427-28, was the source for this framework. Of note, the noncumulative precondition is to be established by the proponent of the charge. This aspect of the charge and the parry's respective burdens as to it that was in issue in Smith.

'People v. Smith': Trial Proof

The defendant in Smith was charged with attempted murder, assault and criminal use of a firearm. The charges arose out of a shooting in which the victim was struck by a bullet fired by a stranger as she and her then boyfriend were walking along a street in the City of Rochester. The gunmen also fired at the victim's boyfriend. Shortly after the shooting when the victim was hospitalized, she told police she did not know the shooter and that she would not be able to identify him by name. She provided the police little in the way of a description other then he was wearing a black baseball hat and a green jacket. Aside from the victim and her boyfriend, there were no other witnesses to the shooting.

At trial, the victim testified that as she and her boyfriend were walking, he screamed out to her “he's got a gun” and attempted to push her to the ground. Defendant's Appendix in Smith [A]401. (The Appendix is accessible through “Court-Pass,” which is available on the Court of Appeals' website.) The shooter, according to the victim, saw them and no more than six seconds later fired at them from fifteen to eighteen feet away. A432-33. According to her, the shooter was wearing a green hoodie and a black and “orange or red” baseball hat. A401, 424. As she described it, the incident “happened so fast.” A427. Nonetheless, the victim identified the defendant both as the man who shot her and as the man appearing in a nearby convenience store surveillance footage. A401-02, 412.

While the victim's boyfriend was on the People's witness list, he was not called as a witness. Defendant made a timely request for a missing witness charge with respect to that boyfriend. He argued the boyfriend was knowledgeable about the shooting and could be expected to testify favorably for the People. A513-14. In response, the People argued his testimony would be cumulative. A514. Notably, the People did not give any explanation as to how or why the testimony would be cumulative. Indeed, the People made no proffer as to what the boyfriend's testimony would be. Supreme Court denied the request without explanation. A514. Defendant was convicted on all three charged crimes.

'People v. Smith': Appeal

On appeal, the defendant and the People refined their respective arguments regarding the requested missing witness charge. Defendant argued Supreme Court erred by denying his request because the People failed to demonstrate that the boyfriend's testimony would have been cumulative. The People in response argued that defendant, as the party requesting the charge, had the initial burden of showing that the boyfriend's testimony would not be cumulative of the testimony already given. Notably, the People did not dispute that the boyfriend was under its control or that he was available.

The Fourth Department in a 3-2 decision rejected defendant's argument and affirmed the conviction. People v. Smith, 162 A.D.3d 1686 (4th Dep't 2018). The majority in an unsigned memorandum held the proponent of the missing witness charge has the initial burden of showing that the uncalled witness has noncumulative testimony. Id. at 1686-87. It noted this burden as imposed upon the proponent “has been explicitly and consistently reiterated by our sister appellate courts” and “we have never held otherwise.” Id. at 1687. This approach, the majority further stated, had been established by the Court of Appeals in People v. Gonzalez. Id. at 1688.

The dissenting justices, Edward D. Carni and Stephen K. Lindley, in a thoughtful opinion concluded Supreme Court erred in refusing to give the charge and that such refusal could not be viewed as harmless error. Id. at 1690-93. Three points were made by the dissenters.

Initially, the dissenters expressed their conclusion that the party opposing the requested charge has the burden of showing the testimony of the uncalled witness would be cumulative. The basis for this conclusion was that this burden allocation was stated by the Court of Appeals in Gonzalez in 1986 and that the court had never held to the contrary since. Id. at 1690-92. While acknowledging the substantial contrary precedent in all four Appellate Division departments, the dissenters rejected the precedent as inconsistent with Gonzalez. Id. at 1693. “Indeed,” they observed, “it would make no sense to require the moving party to establish that the missing witness's testimony is not cumulative in view of the fact that the missing witness, by definition, is not in the control of the moving party, and the moving party cannot be expected to know the substance of the missing witness's testimony, should he or she take the stand.” Id. at 1692. It is certainly difficult to challenge this supporting rationale.

The dissenters next addressed the issue as to whether defendant met his burden of establishing prima facie that the charge was warranted. In their view, defendant did meet his burden in showing that the boyfriend was a knowledgeable witness on a material issue who could be expected to provide favorable testimony to the People. In so concluding, the dissenters noted that the then boyfriend was with the victim when she was shot, he saw the shooter before any shots were fired as he warned the victim and tried to push her out of the way, and that he appeared to be the actual target of the shooter. Id. at 1643. The burden thus shifted to defendant to defeat the application of the charge.

Lastly, the dissenters addressed specifically the cumulativeness precondition. After noting the People's conclusory statement that the boyfriend's testimony would be cumulative was insufficient to meet its burden, they made a significant observation and comment. In their view, where the testimony of a key witness for a party, here the People, is shown to have substantial deficiencies or infirmities, the prospective testimony of an uncalled eyewitness should not be viewed as noncumulative. Id. at 1694. Here, there were substantial questions regarding the reliability of the victim's courtroom identification of defendant as the shooter, questions which triggered the need for corroboration or confirmation of the defendant as the shooter by the only eyewitness to the shooting. In essence, the were advocating the view that the cumulativeness analysis should take into account the strength/weakness of the testifying witness's testimony; and where the trial evidence raises doubts about the reliability of that testimony, the uncalled witness's testimony should be viewed as noncumulative. (These matters convinced the dissenters that the failure to give the charge could not be viewed as harmless error.)

The Court of Appeals reversed the Fourth Department's affirmance of defendant's conviction. Smith, 2019 NY Slip Op. 04447. Judge Paul G. Feinman, writing for a unanimous court, endorsed the approach and the points made in the dissenting opinion below. His opinion addressed in a comprehensive fashion not only the cumulativeness precondition of the charge, but also the charge overall and the requisite burden-shifting analysis involving the preconditions. In doing so. Judge Feinman drew in large part from the dissent.

Of key importance was the court's rejection of the unanimous view of the four Appellate Division departments that the proponent of the charge had the initial burden of establishing the testimony of the uncalled witness would not be cumulative. Id. at *1. The court rejected that precedent, noting the departments “have misapplied” Gonzalez. Id. at *1. Importantly, building upon the dissenters' observations about the shakiness of the victim's testimony, Judge Feinman commented that the boyfriend's testimony would not have been “trivial or cumulative” as the issue of the shooter's identification was in “sharp dispute” and the inconsistencies of the victim's description of the shooting incident and what the shooter was wearing. Id. at 2. Judge Feinman was clearly expressing agreement with the dissenters below view of when testimony of a knowledgeable witness would not be cumulative.

Takeaways

Judge Feinman's decision contains several significant takeaways regarding the procedural considerations involved in determining whether the charge is appropriate, which considerations are applicable in both civil and criminal actions. They include the following:

• The proponent's initial burden of demonstrating prima facie entitlement to the charge has been reaffirmed as having only two prongs. Id. at *1. First, the proponent must establish that the uncalled witness is knowledgeable about a material issue in the action. Second, the proponent must show the uncalled witness is under direct control of the party who did not call the witness, such that the uncalled witness would be expected to testimony favorably for that party.

• Once the proponent meets that prima facie burden, the party against whom the charge is sought to be invoked has the burden of showing why the charge is inappropriate. Id. at *2. In reaffirming this burden shifting, Judge Feinman emphasized that conclusory assertions are insufficient to satisfy that shifted burden.

• The party opposing the charge may rebut the prima facie showing by establishing factually any one of the following: the witness has no personal knowledge; the witness's testimony would not concern a material issue; there is no control over the witness; the witness is unavailable; or the testimony would be cumulative to other evidence. Id. at *1-2.

• The uncalled witness's testimony will be viewed as noncumulative when it may “contradict or add to” a key witness's disputed testimony. Id. at *2.

Conclusion

People v. Smith, including both the opinion of the Court of Appeals and the dissenting opinion of Justices Carni and Lindley, is required reading for a trial lawyer. It complements the missing witness charge as provided in NY PJI3d and CJ2d.

Michael J. Hutter is a Professor of Law at Albany Law School and is Special Counsel to Powers & Santola. He is currently serving as the Reporter to the Guide to NY Evidence as prepared by the Chief Judge's Evidence Guide Committee.