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THE ALLEGED VICTIM IN THIS RAPE PROSECUTION TESTIFIED SHE PROMPTLY NOTIFIED HER BOYFRIEND OF THE RAPE AND, A FEW HOURS LATER, NOTIFIED HER MOTHER; HER MOTHER TESTIFIED BUT THE BOYFRIEND WAS NOT CALLED; THE DEFENSE REQUEST FOR A MISSING WITNESS JURY INSTRUCTION SHOULD NOT HAVE BEEN DENIED ON THE GROUND THE TESTIMONY WOULD BE CUMULATIVE; THE CONCEPT OF “CUMULATIVE” EXPLAINED IN SOME DEPTH (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the defense request for the missing witness jury instruction should have been granted. The alleged victim in this rape case testified she promptly reported the rape to her boyfriend and, a few hours later, told her mother. The People called her mother as a witness, but not her boyfriend. The trial judge denied the missing witness charge on the ground that the testimony would be cumulative:

In People v Smith (33 NY3d 454 [2019]), the Court of Appeals held that the proponent of a missing witness charge has no initial burden to show that the missing testimony would not be cumulative of the remaining testimony, and that the concept of cumulativeness in this context functions only as a tool for defeating an otherwise-meritorious request for a missing witness instruction (id. at 458-460). Thus, the Court of Appeals explained, the opponent of the missing witness instruction has the burden of showing that the missing testimony would be cumulative in order to defeat the requested instruction on that ground (id.).

Applying the standard set forth in Smith, we conclude that the People failed to show that the boyfriend’s testimony would have been cumulative of the mother’s testimony. The respective accounts would concern different outcries, separated by several hours and many blocks. The boyfriend could not have duplicated the mother’s account of the complainant’s outcry, because the boyfriend was not present during that particular event. Conversely, the mother could not have duplicated the boyfriend’s account of the complainant’s outcry, because the mother was not present during that particular event. People v Garcia, 2021 NY Slip Op 01571, Fourth Dept 3-19-21

 

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