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March 21, 2014

Missing Witness Charge Unavoidable When Arguing Testimony Is Cumulative Of Opponent's Evidence

The Court of Appeals made a significant ruling making it more difficult for litigants, who fail to call their own witnesses, to avoid the dreaded "missing witness" charge. See Devito v. Feliciano, 22 N.Y.3d 159 (N.Y. 2013).

A "missing witness" charge instructs a jury that it may draw a negative inference when an opponent fails to call a witness, who would usually be called to support that party's version of events. Where a party fails to offer a reasonable explanation for not calling its own witness, the jury may (though is not required to) conclude that the testimony would not support that party's position and would not contradict evidence offered by the opposing party. Essentially, the jury is permitted to infer that a party is not calling its own witness because that witness's testimony is going to hurt their case.

A missing witness charge is generally inappropriate if the subject testimony is actually cumulative of other testimony. The Court of Appeals, however, ruled that such testimony must be cumulative of testimony favorable to the party seeking to avoid the missing witness charge – not testimony favorable to the opponent. Otherwise, there would never be any reason to invoke the missing witness charge as, normally, a party fails to call its own witness only where the anticipated testimony will be favorable to (or cumulative of) the opposing party.

In Devito v. Feliciano, a personal injury case, the jury found that a vehicle accident was not a substantial factor in causing the plaintiff's injuries. The defendants had retained four different physicians to perform independent medical examinations of the plaintiff. At trial, defendants failed to call any of them because their findings were apparently not favorable, and in fact, consistent with testimony of plaintiff's medical witnesses. Such event would usually trigger a missing witness charge, but the trial court declined to give the charge, crediting defendants' argument that the uncalled medical witness testimony was cumulative of the plaintiff's medical witness testimony.

The Court of Appeals reversed the trial court judgment, holding that that a missing witness charge was proper under the circumstances because the uncalled witness' testimony was unfavorable witness testimony. The four preconditions for a "missing witness" charge are (1) the witness's knowledge is material to the trial; (2) the witness is expected to give noncumulative testimony; (3) the witness is under the "control" of the party against whom the charge is sought, so that the witness would be expected to testify in that party's favor; and (4) the witness is available to that party. In Devito v. Feliciano, it was undisputed that the knowledge of defendants' uncalled witnesses was material, that the uncalled witnesses' presumed testimony would favor defendants, and that the uncalled witnesses were available.

As to the second element concerning whether the testimony is cumulative, however, relying on Third Department case law, the Court of Appeals determined that "one person's testimony properly may be considered cumulative of another's only when both individuals are testifying in favor of the same party." Otherwise, "there would never be an occasion to invoke such charge." The Court concluded that "when a missing witness charge is requested in a civil case, the uncalled witness's testimony may properly be considered cumulative only when it is cumulative of testimony or other evidence favoring the party controlling the witness. It may not be considered cumulative simply because it would repeat or be consistent with an opposing party's evidence."

If you require further information regarding the content of this Legal Alert, please contact Thomas B. Cronmiller, Chair of the Torts & Products Liability Defense Practice Area at (585) 295-4424 or


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