New York Law Review

Tag: Missing Witness Charge

  • People v. Keen, 94 N.Y.2d 533 (2000): Missing Witness Charge and Control Over a Witness

    People v. Keen, 94 N.Y.2d 533 (2000)

    A missing witness charge is appropriate when a party fails to call a witness under their control who is knowledgeable about a material issue, and it would be natural to expect the party to call the witness to testify favorably.

    Summary

    Keith Keen was convicted of second-degree murder. On appeal, he argued that his waiver of his right to be present at sidebar conferences was invalid, that he was wrongly excluded from ex parte conferences with a potential witness, and that the trial court erred in giving a missing witness charge. The New York Court of Appeals affirmed the conviction, holding that Keen’s waiver was valid, his exclusion from the conferences was not improper, and the missing witness charge was properly given because the witness was under Keen’s control and could have been expected to testify favorably for him. The Court emphasized that the defense attorney’s opening statement indicated the witness’s anticipated testimony, reinforcing the expectation that she would be a favorable witness.

    Facts

    Keith Keen was convicted of murder. Before jury selection, Keen’s attorney waived Keen’s right to be present at sidebar conferences. During the trial, defense counsel requested two ex parte conferences with Charlotte Jordan, Keen’s ex-girlfriend and mother of his child, because he was concerned that she wouldn’t testify. At the first conference, Jordan expressed reluctance. During opening statements, defense counsel told the jury that Jordan would testify that she and Keen were arguing when they heard a gunshot. However, after another ex parte conference, defense counsel requested that Jordan be released from her subpoena. Keen testified that he was with Jordan when he heard the shot. The prosecution requested a “missing witness” charge because Keen did not call Jordan to testify.

    Procedural History

    The trial court convicted Keen of second-degree murder. The Appellate Division affirmed the conviction, with one justice dissenting. The dissenting justice granted Keen leave to appeal to the New York Court of Appeals.

    Issue(s)

    1. Whether Keen’s waiver of his right to be present at sidebar conferences was valid.
    2. Whether Keen was denied his right to be present at the ex parte conferences with Jordan.
    3. Whether the trial court erred in giving a missing witness charge based on Keen’s failure to call Jordan as a witness.

    Holding

    1. Yes, because the waiver occurred in open court after the trial judge articulated the substance of the right, and neither Keen nor his counsel objected to his absence at sidebar colloquies during the voir dire.
    2. No, because the conferences were held at the behest of the defense, the People were excluded, and the conferences involved procedural matters.
    3. No, because the People established that Jordan was knowledgeable about a material issue, was available, and could reasonably be inferred to be under Keen’s control, such that it would be expected she would testify favorably for him.

    Court’s Reasoning

    The Court found that Keen’s waiver of his right to be present at sidebar conferences was valid because it occurred in open court, and neither Keen nor his counsel objected to his absence during voir dire. The Court rejected Keen’s argument that he was denied the right to be present at the ex parte conferences because the conferences were held at the behest of the defense and involved procedural matters. Regarding the missing witness charge, the Court stated, “A missing witness charge is appropriate if it is shown that the party against whom the charge is given had the ability to locate and produce the witness and ‘there was such a relationship, in legal status or on the facts, as to make it natural to expect the party to have called the witness to testify in his favor’.” The Court emphasized the importance of “control” over the witness, stating that a witness under one party’s control is “in a pragmatic sense unavailable to the opposing party.” The court noted that defense counsel’s opening statement indicated Jordan would testify favorably, and Keen failed to rebut the People’s expectation that Jordan was under his control. Thus, the trial court did not err in instructing the jury that an unfavorable inference could be drawn from Keen’s failure to call Jordan. The court emphasized that “the ‘availability’ of a witness is a separate and distinct consideration from that of ‘control’.”

  • People v. Macana, 84 N.Y.2d 173 (1994): Missing Witness Charge When Witness May Invoke Fifth Amendment

    84 N.Y.2d 173 (1994)

    A missing witness charge regarding a witness who may invoke their Fifth Amendment right against self-incrimination is inappropriate unless the defendant verifies that the witness’s testimony would be self-incriminating and that they would likely invoke the privilege.

    Summary

    Macana was convicted of criminal possession of a weapon. He argued that he possessed the weapon temporarily and lawfully, having taken it from his suicidal, blind father. The prosecution requested a missing witness charge because Macana didn’t call his father to testify. The trial court granted the charge. Macana appealed, arguing that a missing witness charge is inappropriate when the witness might invoke the Fifth Amendment. The Court of Appeals affirmed the conviction, holding that because Macana did not substantiate that his father would likely invoke his Fifth Amendment privilege, the missing witness charge was appropriate.

    Facts

    Police responded to a report of shots fired near Macana’s residence. They observed bullet holes in a window screen and garage door and found a spent round near the house. Macana consented to a search. Police observed Macana reaching toward a pile of clothes, and upon investigation, found a .45 caliber pistol. Macana claimed the gun belonged to his blind, depressed father, who had expressed suicidal intentions. Macana testified he took the gun from his father after hearing gunshots and hid it, but his father was not called to testify.

    Procedural History

    Macana was convicted in Supreme Court, Queens County. The Appellate Division affirmed the conviction. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a missing witness charge is appropriate when the uncalled witness is the defendant’s father, who could potentially incriminate himself if he testified, and the defendant has not provided verification that his father would invoke his Fifth Amendment right.

    Holding

    Yes, because where the defendant is the only source of proof that the uncalled witness would give favorable, self-incriminating testimony, some additional, non-prejudicial substantiation is needed to avoid a missing witness charge.

    Court’s Reasoning

    The Court of Appeals relied on precedent establishing that once a defendant presents evidence, the standards for a missing witness charge apply. The party seeking the charge must show the opposing party failed to call a knowledgeable witness whose testimony would favor that party. The burden then shifts to the opposing party to explain the witness’s absence. If the uncalled witness were a co-defendant or accomplice likely to invoke the Fifth Amendment, a missing witness charge is inappropriate because the witness’s invocation casts doubt on whether they would testify favorably, and the witness is deemed unavailable. “[T]he witness should at least have been summoned and asked, for he may waive the privilege.”

    Where the defendant is the only source of proof the uncalled witness exists and that the witness’s testimony would be self-incriminating, further verification is required. Without it, a defendant could easily fabricate a story shifting blame. Requiring non-prejudicial substantiation balances the People’s interest in deterring perjury and the defendant’s interest in avoiding an unfavorable charge when a witness would likely refuse to testify. The court cited People v. Rodriguez, noting there was no “assertion by or on behalf of the witness that he would invoke the Fifth Amendment.” The Court also found no error in rejecting the defendant’s request for a missing witness charge for the officer who retrieved the gun, as his testimony would have been cumulative.

    The dissent argued that the People did not meet their initial burden of proving that the missing witness would naturally be expected to testify favorably to the defendant. Because the defendant’s father would undeniably have had to place himself in criminal jeopardy to materially support his son’s defense, an adverse inference charge was improper. “[W]here `the most likely result of calling * * * a witness would have been his refusal to testify on self-incrimination grounds’, the inference that the witness would have given testimony favorable to the party who otherwise would have naturally called him or her is negated.”

  • People v. Tankleff, 1990 N.Y. Slip Op. 02969: Missing Witness Charge Requirements Clarified

    People v. Tankleff, 1990 N.Y. Slip Op. 02969

    A missing witness charge is warranted when a party fails to call a witness under their control who possesses material, noncumulative knowledge about a contested issue, and the requesting party only needs to show the witness was in a position to observe relevant events.

    Summary

    Defendant was convicted of drug-related crimes. The Court of Appeals reversed the convictions for sale and possession in the third degree due to the trial court’s improper denial of a missing witness charge request. The defense argued the prosecution failed to call a second undercover officer who allegedly observed the drug sale. The Court of Appeals held that the defendant met the initial burden for the missing witness charge because the uncalled officer was in a position to observe the transaction, and the prosecution failed to adequately explain why the officer was not called.

    Facts

    An undercover officer (Officer 8615) purchased crack cocaine from a man near a corner in Queens. Another undercover officer was present in the car with Officer 8615. Officer 8615 radioed a description of the seller, who was arrested. The police found drugs on the defendant but not the prerecorded buy money. At trial, Officer 8615 identified the defendant as the seller. Officer 8615 testified on cross-examination that his partner was in the car watching him, but he didn’t know if his partner could see the transaction. The prosecution did not call the partner to testify.

    Procedural History

    Defendant was convicted in the trial court. The Appellate Division affirmed the conviction, citing People v. Erts. The defendant appealed to the Court of Appeals, which reversed the convictions for criminal sale and criminal possession of a controlled substance in the third degree.

    Issue(s)

    Whether the trial court erred in denying the defendant’s request for a missing witness charge based on the prosecution’s failure to call the second undercover officer.

    Holding

    Yes, because the defendant made a prima facie showing that the uncalled witness possessed material knowledge about a contested issue (identity of the seller), and the prosecution failed to adequately explain why the witness was not called.

    Court’s Reasoning

    The Court of Appeals clarified the requirements for a missing witness charge, referencing People v. Gonzalez: The charge is appropriate when the uncalled witness has knowledge about a material issue, would naturally be expected to provide noncumulative testimony favorable to the party who did not call him, and is available to that party. The party requesting the charge must show the uncalled witness could be expected to have knowledge and testify favorably to the opposing party. The burden then shifts to the opposing party to account for the witness’s absence or demonstrate that the charge is inappropriate. The Court emphasized that the requesting party only needs to show the witness was in a position to have knowledge of the issues or to have observed the events. Here, the uncalled officer was in a position to observe the drug transaction and could have offered material testimony on the critical issue of identity. The prosecution’s argument that the witness could not have seen anything because it was dark and snowy was rejected. The Court stated, “What the witness actually saw or could have seen are the precise questions which he could have answered if he had been called to testify and which the prosecution chose to leave unanswered by not calling the witness.” Requiring the requesting party to furnish details obtainable only from the missing witness would vitiate the rule established in Gonzalez. The Court also distinguished People v. Dianda, noting that in that case, there was no evidence the uncalled witness was present at the time of the critical conversations. The court found the denial of the missing witness charge was not harmless error and ordered a new trial on the sale and possession charges, emphasizing the importance of the witness’s potential testimony regarding the identity of the seller.

  • People v. Dancy, 76 N.Y.2d 720 (1990): Missing Witness Charge Requirements

    People v. Dancy, 76 N.Y.2d 720 (1990)

    A party seeking a missing witness charge must demonstrate that the uncalled witness is knowledgeable about a material issue, is under the opposing party’s control, and would be expected to testify favorably to that party; the opposing party must then demonstrate the witness is unavailable, not knowledgeable, or that their testimony would be cumulative.

    Summary

    The Court of Appeals reversed the Appellate Division’s order, holding that the trial court erred in denying the defendant’s request for a missing witness charge regarding a police informant. The defendant established a prima facie case that the informant, Pena, was knowledgeable and under the People’s control. The prosecution failed to adequately rebut this showing with conclusory remarks about Pena’s unavailability and lack of control. Because the evidence of guilt was not overwhelming and the jury’s note indicated the importance of Pena’s absence, the error was not harmless, warranting a new trial.

    Facts

    The defendant, Dancy, was found to have cocaine in her apartment. The police were led to Dancy by an informant, Ephraim Pena, who told them Dancy had received part of a cocaine shipment. Prior to Pena’s tip, the police were unaware of Dancy’s existence. During the trial, Dancy’s defense was that Pena planted the cocaine. Several defense witnesses testified that Pena had access to the closet where the cocaine was found. Dancy denied making a spontaneous admission to Detective Ramos about the cocaine. The defense requested a missing witness charge because the prosecution did not call Pena to testify.

    Procedural History

    The defendant was convicted at trial. She appealed, arguing that the trial court erred in denying her request for a missing witness charge. The Appellate Division affirmed the conviction. The defendant then appealed to the New York Court of Appeals.

    Issue(s)

    Whether the trial court erred in denying the defendant’s request for a missing witness charge regarding the informant, Ephraim Pena, and whether such error was harmless.

    Holding

    Yes, because the defendant established a prima facie case that Pena was knowledgeable and under the People’s control, which the People failed to adequately rebut. The error was not harmless because the evidence against the defendant was not overwhelming and the jury specifically inquired about Pena’s absence.

    Court’s Reasoning

    The Court of Appeals determined that the defendant met her initial burden of showing that Pena was knowledgeable about a material issue and was under the People’s control. The court emphasized Pena’s role in providing the initial information that led to Dancy’s arrest. The court stated, “Pena’s relationship with law enforcement officials spanned a number of years, and it was Pena who informed the police that defendant — whose existence was previously unknown to the police — had had part of a shipment of cocaine delivered to her apartment.”

    The court found the prosecution’s response inadequate. The prosecutor’s claim that Pena was no longer under their control because he didn’t work for the District Attorney was insufficient. The court noted that “[c]ontrol is a ‘relative concept’ and the inquiry is directed to the relationship between the witness and the parties rather than physical availability.” The court reasoned that a witness who provided key information in the case at hand can generally be expected to give favorable testimony to the People. The prosecutor’s vague assertion that Pena was incarcerated in Texas also failed to demonstrate that he was beyond the People’s power to produce because the prosecutor had not made diligent efforts to locate Pena.

    Finally, the court determined the error was not harmless, citing People v. Crimmins, 36 N.Y.2d 230, 242. The evidence of Dancy’s guilt was not overwhelming, consisting mainly of the cocaine in her apartment and a contested admission. The defense argued Pena planted the cocaine, and the jury’s note about subpoenaing Pena indicated the importance of his absence. Thus, the court concluded a properly instructed jury could have acquitted Dancy.

  • People v. Kitching, 78 N.Y.2d 532 (1991): Establishing Entitlement to a Missing Witness Charge

    People v. Kitching, 78 N.Y.2d 532 (1991)

    A defendant is entitled to a missing witness charge if they make a prima facie showing that the uncalled witness possessed knowledge on a critical issue and the People fail to account for the witness’s absence or demonstrate the charge is inappropriate.

    Summary

    The New York Court of Appeals affirmed the Appellate Division’s order, holding that the trial court erred in refusing to give a “missing witness” charge. The defendant had demonstrated that an uncalled police officer possessed knowledge about whether the defendant sold drugs, a critical issue in the case. The prosecution failed to show that the witness lacked requisite knowledge, that the knowledge was immaterial, or that the testimony would be cumulative. The Court of Appeals also noted that the People’s argument regarding the untimeliness of the request was not preserved for review as it was not raised at trial.

    Facts

    The defendant was accused of selling drugs. A police officer was present and observed the alleged transaction. This officer was not called as a witness by the prosecution at trial. The defendant requested a “missing witness” charge, arguing the officer could provide relevant testimony about the identity of the drug seller.

    Procedural History

    The trial court refused to give the missing witness charge. The defendant was convicted. The Appellate Division reversed the conviction, finding the refusal to give the charge was reversible error. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether the trial court erred in refusing to give a missing witness charge when the defendant made a prima facie showing that the uncalled witness possessed knowledge on a critical issue in the case.

    Holding

    Yes, because the defendant made a prima facie showing that the uncalled witness possessed knowledge on the critical issue, and the People failed to account for the witness’s absence or demonstrate that the charge would be inappropriate.

    Court’s Reasoning

    The Court of Appeals relied on its prior decision in People v. Gonzalez, 68 NY2d 424, which established the framework for determining entitlement to a missing witness charge. The Court reiterated that the defendant bears the initial burden of making a prima facie showing of entitlement. Once this showing is made, “the court must give the charge unless the People either ‘account for the witness’ absence or otherwise demonstrate that the charge would not be appropriate’ (id., at 428).”

    The Court found that the defendant met this burden by demonstrating the uncalled officer was in a position to observe the transaction and determine whether the defendant was the drug seller. The burden then shifted to the People to demonstrate why the charge was inappropriate.

    The People could have defeated the request by showing that the missing witness did not have the requisite knowledge, that the issues about which he had knowledge were not material or relevant, or that the testimony would have been cumulative. However, the People failed to advance any of these arguments at trial. The Court explicitly stated, “Here, the evidence showed that the uncalled officer was in a position to observe the transaction and to determine whether defendant was the drug seller.”

    The Court also addressed the People’s argument, raised for the first time on appeal, that the defendant’s request was untimely. The Court held that this argument was not preserved for review because it was not raised at trial. The Court cited precedent that issues not raised at trial are not preserved for appellate review (People v Tabarez, 69 NY2d 663; People v Villani, 59 NY2d 781, 783-784).

    This case serves as a reminder to prosecutors to address missing witness charge requests directly and comprehensively at trial. Failing to do so can result in reversible error and a new trial for the defendant. For defense attorneys, this case highlights the importance of making a clear record regarding the potential testimony of the missing witness and preserving objections to the court’s ruling.

  • People v. Porpiglia, 71 N.Y.2d 896 (1988): Missing Witness Charge Requires Knowledge of Material Facts

    People v. Porpiglia, 71 N.Y.2d 896 (1988)

    A missing witness charge is warranted only when the uncalled witness possesses knowledge about a material issue in the case and would be expected to testify favorably to the opposing party.

    Summary

    Defendant Porpiglia was convicted of criminal sale of a controlled substance. He argued that the trial court erred in refusing to give a missing witness charge regarding a police informant who was present at the scene of the crime. The New York Court of Appeals affirmed the conviction, holding that the defendant failed to establish that the informant possessed knowledge about the critical conversations and observations relevant to the defendant’s agency defense. Thus, the defendant did not meet his burden to justify the missing witness charge.

    Facts

    State Trooper Jones, acting undercover, met Porpiglia at a tavern. Jones suggested to Porpiglia that he needed cocaine to go with his beer. Conflicting testimony arose as to whether Porpiglia readily offered to obtain cocaine for Jones or whether Jones badgered him into finding a source. Porpiglia ultimately led Jones to a house where Jones purchased cocaine. A police informant was with Jones at the tavern and accompanied Jones and Porpiglia to the location where the drugs were purchased.

    Procedural History

    Porpiglia was convicted of criminal sale of a controlled substance in the third degree. At trial, Porpiglia raised the defense of agency, arguing he was merely acting on behalf of Jones in procuring the cocaine. Porpiglia requested a missing witness charge, arguing the jury should infer that the informant’s testimony would be unfavorable to the prosecution because the prosecution failed to call the informant as a witness. The trial court refused to give the charge. The Appellate Division affirmed. The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether the trial court erred in refusing to give a missing witness charge to the jury regarding the police informant who was present at the scene of the drug transaction.

    Holding

    No, because the defendant failed to establish that the informant possessed knowledge about the material facts of the case relevant to the defendant’s agency defense. Specifically, there was no evidence the informant overheard critical conversations between Jones and Porpiglia.

    Court’s Reasoning

    The Court of Appeals applied the established rule that a missing witness charge is appropriate when a party has peculiar power to produce a witness whose testimony would elucidate the transaction, and the party fails to do so. The court cited People v. Gonzalez, stating that the defendant seeking the charge must show that there is an uncalled witness knowledgeable about a material issue and that the witness would be expected to testify favorably to the opposing party. The court found Porpiglia failed to meet this burden. The court emphasized that the sole issue at trial was whether Porpiglia acted as an agent for Jones. While the informant was present at the tavern and accompanied Jones and Porpiglia to the location where the drugs were purchased, there was no evidence establishing that the informant was present during critical conversations concerning cocaine, such that he would have heard them or observed Porpiglia’s reactions and behavior. “Absent some foundation connecting the informant to the circumstances relevant to defendant’s agency defense, defendant has failed to sustain his initial burden, and the trial court properly denied the requested charge.” The court distinguished the case from situations where the missing witness directly observed the relevant events. The court reasoned that, without evidence of the informant’s knowledge of the specific interactions related to the drug purchase, the missing witness charge was not warranted. The court effectively requires a specific showing of the witness’s awareness of the events that form the basis of the claim or defense. The court also noted it considered defendant’s remaining contentions and found them to be without merit.

  • People v. Wilson, 64 N.Y.2d 634 (1984): The Marital Privilege and Missing Witness Inference

    People v. Wilson, 64 N.Y.2d 634 (1984)

    The marital privilege does not extend to observations of a spouse’s presence or absence unless those observations constitute a confidential communication made solely due to the marital relationship; furthermore, a missing witness charge is appropriate when a party fails to call an available witness, such as a spouse, who could support their alibi.

    Summary

    Wilson was convicted of a crime, and on appeal, he argued that the trial court erred in giving a missing witness charge regarding his wife, who did not testify to support his alibi. He also claimed that the charge violated his marital privilege and that his lineup identification was unduly suggestive. The New York Court of Appeals affirmed the Appellate Division’s order, holding that the missing witness charge was proper because the wife’s testimony would be favorable and not trivial. The court further clarified that the marital privilege does not automatically extend to observations of a spouse’s presence or absence unless those observations are confidential communications arising solely from the marital relationship. The lineup issue was not reviewable because it was a factual finding affirmed by the Appellate Division.

    Facts

    The defendant, Wilson, presented an alibi defense at trial, implying he was at home with his wife at the time of the crime. However, he did not call his wife to testify and support his alibi. The prosecution requested, and the trial court gave, a “missing witness” charge, allowing the jury to infer that the wife’s testimony would not have supported Wilson’s alibi. Wilson objected, asserting marital privilege.

    Procedural History

    The trial court convicted Wilson. The Appellate Division affirmed the conviction. Wilson appealed to the New York Court of Appeals, arguing that the missing witness charge was improper and violated his marital privilege. The Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    1. Whether the trial court erred in giving a missing witness charge when the defendant failed to call his wife to support his alibi.
    2. Whether the missing witness charge violated the defendant’s marital privilege.

    Holding

    1. Yes, the trial court did not err in giving the missing witness charge because the wife was an available witness whose testimony would likely be favorable to the defendant and not trivial or cumulative.
    2. No, the missing witness charge did not violate the defendant’s marital privilege because the mere fact of his presence or absence from his apartment was not a confidential communication arising solely from the marital relationship.

    Court’s Reasoning

    The Court of Appeals reasoned that the missing witness charge was appropriate because Wilson presented an alibi, and his wife was an available witness who could have supported that alibi. Because she was not called, the jury could infer that her testimony would not have been favorable to Wilson. The court cited People v. Rodriquez, 38 NY2d 95, in support of this holding.

    Regarding the marital privilege, the court clarified that not all interactions between spouses are privileged. The privilege only applies to confidential communications that would not have occurred but for the marital relationship. The court cited People v. Melski, 10 NY2d 78, 80, stating, “The privilege is ‘designed to protect not all the daily and ordinary exchanges between the spouses, but merely those which would not have been made but for the absolute confidence in, and induced by, the marital relationship.’” The court found that Wilson’s mere presence or absence from his apartment was not such a communication. The court emphasized that acts, as well as words, can constitute communications, but only if they are confidential, citing People v. Daghita, 299 NY 194.

    The court distinguished between ordinary observations and confidential communications, highlighting the importance of confidentiality in invoking the marital privilege. The ruling emphasizes that the marital privilege is not a blanket protection against spousal testimony, but rather a shield for genuinely confidential exchanges rooted in the marital bond.