The Strategy of the Missing Witness Charge

Trial lawyers hate to be on the receiving end of the missing witness charge, and with good reason. It allows the jury to draw harmful inferences against the lawyer’s clients. Many years ago, a trial lawyer I knew faced a problem. The doctor he retained to examine the plaintiff years earlier had recently been arrested for DUI and engaged in lewd behavior after his arrest.  The trial lawyer did not want to call this doctor to testify at trial.  The cross-examination concerning his arrest would outweigh any opinion he might give.  However, the trial lawyer did not want the court to give the jury a missing witness charge.  As it happened, the doctor closed his New York practice and lived in Connecticut. Since the doctor was no longer within the court’s jurisdictional reach and could not be subpoenaed, the missing witness charge could not be given. With this research in hand, the trial lawyer was comfortable with the decision not to call this expert to testify at trial.   

Trial lawyers consider the possibility of being subject to a missing witness charge in many of their cases. They sometimes must make a tactical decision about whether to call a particular witness or, perhaps, have an adverse inference charge be given for not calling the witness. The decision becomes easier if the risk of a missing witness charge decreases because something would prevent the court from giving the instruction despite the witness not being called. 

A party who seeks a missing witness charge must establish: “(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” (DeVito v Feliciano, 22 NY3d 159 [2013]).

Many times, particularly in personal injury actions, there will be some overlap between the testimony of the witnesses called by both parties.  This comes up often in the context of expert witnesses who have reviewed the same material and may have even come to similar conclusions on some issues. While the testimony may be factually repetitive, the Court of Appeals has held that it is not cumulative for purposes of the missing witness charge. 

The defendant in DeVito did not call a doctor who examined the plaintiff to testify at trial and argued that the doctor’s testimony would have been cumulative of the medical testimony presented by the plaintiff. The trial court accepted this argument and did not give the missing witness charge to the jury.  The case made its way to the Court of Appeals. The Court of Appeals concluded that the testimony of the defendant’s expert was not legally cumulative because, factually speaking, it would have only been cumulative of the testimony of the plaintiff’s witness, not the defendant’s witnesses. Ultimately, the Court of Appeals ordered a new trial because the trial court refused to give the missing witness charge to the jury.

Another issue is whether the witness is under a party’s “control.”  “Control” arises when the relationship between the witness and the party raises an inference that the witness would testify in the party’s favor (see Zeck v Melina Taxi Co., 177 AD2d 692 [2d Dept 1991]). An expert witness is deemed to be under a party’s control (see Dacaj v New York City Tr. Auth., 170 AD3d 561 [1st Dept 2019]).  A treating physician can be under a litigant’s control (see Castillo v 62-25 30th Ave. Realty, LLC, 74 AD3d 1116 [2d Dept 2010]). A current employee is under a party’s control, but a former employee is not (see Lacqua v Silich, 141 AD3d 690 [2d Dept 2016]; Hershkowitz v Michel, 143 AD2d 809 [2d Dept 1988]).

Finally, assuming the witness is under a party’s control and will not give cumulative testimony, the witness must also be “available.” A dead, missing, or incapacitated witness is unavailable (see People v Savinon, 100 NY2d 192 [2003]).  Similarly, a witness who is outside of the state and beyond the court’s subpoena power can also be deemed unavailable (see In re Estate of Ch-Chuan Wang, 162 AD3d 447 [1st Dept 2018]). Also, a witness who will appear at trial but invokes their 5th Amendment to avoid answering questions is also unavailable (see People v Alston, 155 AD3d 887 [2d Dept 2017]).  

A missing witness charge also has a procedural component. The party seeking it must notify their adversary “as soon as practicable.” For example, in Rivera v Port Auth. of New York and New Jersey (127 AD3d 415 [1st Dept 2015]), the trial court held the charge conference before the plaintiff rested, and at that time, the defendant sought to have the trial court give a missing witness charge. The trial court held it would give a missing witness charge against the plaintiff. On appeal, the First Department concluded that the defendant’s request was untimely. The parties in Rivera exchanged witness lists at the start of the trial, and the subject witness’s name was not on the list. Thus, the First Department held that the defendant’s request for a missing witness charge was untimely.

Exposure to a missing witness charge can impact the overall trial strategy. Preparation to avoid it being used against your client can make a tremendous difference. On the other hand, being prepared to seek the missing witness charge properly can also make a difference.  Working with appellate counsel to determine whether the missing witness charge can impact your case. Contact me to discuss how appellate counsel can enhance your trial strategy.