THE DEFENSE REQUEST FOR A MISSING WITNESS JURY INSTRUCTION WAS PROPERLY DENIED; ANALYTICAL CRITERIA EXPLAINED (CT APP).

The Court of Appeals, affirming defendant’s conviction, determined the trial judge properly denied the defense request for a missing witness charge. The Court explained the analytical criteria:

A jury convicted defendant of attempted murder in the second degree …  arising from an altercation at a traffic signal where defendant shot and permanently paralyzed the victim. Defendant asserted a justification defense. Defendant, defendant’s son, the victim, and one of the two other men travelling in the victim’s car testified to the events. Because the People did not call the third man travelling in the victim’s car to testify, defendant requested a missing witness instruction. * * *

The proponent of a missing witness charge must first “promptly notify the court that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness can be expected to testify favorably to the opposing party and that such party has failed to call him to testify” … . Once the proponent has satisfied that initial burden, the burden shifts to the opponent “to account for the witness’ absence or otherwise demonstrate that the charge would not be appropriate” … . … [T]he opposing party may establish that the missing witness charge would be inappropriate because the missing witness’s testimony would be cumulative … . If the opponent successfully rebuts the proponent’s prima facie showing, “the proponent retains the ultimate burden to show the charge would be appropriate” … .

… The People met their burden to show that the missing witness’s testimony would have been cumulative by specifically directing the court to the trial testimony and the supporting deposition of the missing witness, which offered a reasonable expectation of how the witness would testify by recounting the witness’s observations of the charged conduct. When the court asked defense counsel if she had anything to add to its review, counsel said, “[n]o,” thus failing to point to any deficiencies in the missing witness’s deposition, inconsistencies with the testimony of the other witnesses, or evidence in the record or elsewhere that might establish noncumulative testimony the missing witness might give … . People v Khiamdavanh, 2026 NY Slip Op 03903, CtApp 6-18-26

Practice Point: Consult this decision for insight into the analytical criteria to be applied when the defense requests a missing witness jury instruction.