New York Law Review

Tag: Uncalled Witness

  • 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. De Jesus, 42 N.Y.2d 519 (1977): Trial Judge’s Conduct Depriving Fair Trial

    People v. De Jesus, 42 N.Y.2d 519 (1977)

    A criminal defendant is denied a fair trial when the trial judge’s conduct, including demeaning counsel and excessive interference, prejudices the jury against the defendant.

    Summary

    Freddie De Jesus was convicted of robbery and grand larceny. The Court of Appeals reversed the conviction, holding that the trial judge’s conduct deprived De Jesus of a fair trial. The court found that the judge’s frequent, caustic remarks directed at defense counsel, coupled with an improper summation by the prosecutor regarding the defendant’s failure to call his brother as a witness, created an environment of partiality that prejudiced the jury. This violated the defendant’s fundamental right to an impartial trial.

    Facts

    Stephen Drowns, a bakery truck driver, was approached by two youths while waiting for a bakery to open. One youth, identified as De Jesus, held a knife to Drowns’ side while the other demanded money. Drowns’ wallet and watch were stolen. Drowns identified De Jesus in a police lineup and at trial. A security guard also testified to seeing De Jesus near the bakery before the robbery. De Jesus presented an alibi defense, claiming he was home at the time of the robbery, supported by testimony from his girlfriend and sister-in-law.

    Procedural History

    De Jesus was convicted of first-degree robbery, second-degree robbery, and third-degree grand larceny. The Appellate Division affirmed the conviction. Two justices dissented. The New York Court of Appeals reversed the Appellate Division’s order, finding that De Jesus was denied a fair trial.

    Issue(s)

    1. Whether the trial judge’s conduct toward defense counsel deprived the defendant of a fair trial.

    2. Whether the prosecutor’s comments during summation regarding the defendant’s failure to call his brother as a witness constituted reversible error.

    Holding

    1. Yes, because the trial judge’s demeaning remarks and excessive interference in the presentation of proof created an atmosphere of partiality, unfairly burdening the defendant.

    2. Yes, because the prosecutor’s comment on the defendant’s failure to call his brother as a witness, who was potentially an accomplice, was improper, and the defense counsel was improperly denied an opportunity to make a specific objection.

    Court’s Reasoning

    The Court of Appeals emphasized the fundamental right to a fair and impartial trial. The court noted that while a trial judge may actively participate to clarify issues and maintain order, this participation must not prejudice the jury. The court cited numerous instances of the trial judge making caustic and sarcastic remarks towards defense counsel in front of the jury. The court found that this conduct, combined with the prosecutor’s improper summation, denied the defendant a fair trial. The court highlighted that “[c]riminal trials are to be so conducted that the proof will be legal evidence, unimpaired by intemperate conduct * * * and irrelevant asides, all of which obfuscate the development of factual issues and sidetrack the jury from its basic mission of determining the facts relevant to guilt or innocence.” Regarding the prosecutor’s comments on the uncalled witness, the Court noted an exception to the general rule exists when the uncalled witness is a co-defendant or accomplice. The court found that since the brother was potentially an accomplice, commenting on the failure to call him was inappropriate. Further, the trial court erred when it summarily rejected defense counsel’s objection, denying counsel the opportunity to specify the basis for the objection. The court concluded that “care must be taken to guard against ‘the possibility that the stated opinion of the trial court or even the suggestion of an opinion might be seized upon by the jury and eventually prove decisive’.” Because the defendant was unfairly burdened with countering implications imputed by the court, the error could not be considered harmless.