New York Law Review

Tag: Witness Availability

  • People v. Savinon, 100 N.Y.2d 192 (2003): Adverse Inference Instruction for Uncalled Witnesses

    People v. Savinon, 100 N.Y.2d 192 (2003)

    A “missing witness” instruction, allowing the jury to draw an unfavorable inference from a party’s failure to call a witness, is appropriate where the witness’s knowledge is material, they are expected to give noncumulative testimony favorable to the party, and they are available to that party.

    Summary

    Savinon was convicted of rape. At trial, the prosecution requested a missing witness instruction because Savinon did not call Camacho, a friend and former employee who was present during the alleged rape. Savinon argued Camacho was unavailable because he feared deportation. The trial court granted the instruction, and the jury convicted Savinon. The New York Court of Appeals affirmed, holding that the trial court did not abuse its discretion in granting the missing witness instruction because Savinon failed to demonstrate that Camacho was truly unavailable and that Camacho’s relationship with Savinon suggested he would be a favorable witness.

    Facts

    The complainant and Savinon had a relationship prior to the alleged rape. On the night in question, Savinon and Luis “Flaco” Camacho took the complainant to a club. The complainant testified that Savinon left her to dance with another woman. Feeling ill, the complainant asked to leave, but Savinon refused. Camacho then escorted her outside. Later, Savinon, Camacho, and the complainant drove off together. Savinon began making sexual advances toward the complainant, which she resisted. Savinon then raped her in the back seat of the car. Savinon demanded that Camacho also rape the complainant, but Camacho refused. Camacho later took the complainant home. At trial, Savinon testified that the sexual encounter was consensual, with Camacho nearby. Neither side called Camacho as a witness.

    Procedural History

    Savinon was arrested and indicted for rape and related crimes. At trial, the People requested an adverse inference instruction because Savinon failed to call Camacho as a witness. The trial court granted the request. The jury found Savinon guilty. The Appellate Division affirmed, and a judge of the Court of Appeals granted Savinon leave to appeal. The Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether the trial court improperly granted the People’s request for an adverse inference instruction against Savinon for failing to call Camacho as a witness.

    Holding

    No, because Camacho’s testimony would have been material, Camacho was likely to be a favorable witness for Savinon, and Savinon failed to establish that Camacho was unavailable.

    Court’s Reasoning

    The Court of Appeals explained that the “missing witness” instruction allows a jury to draw an unfavorable inference based on a party’s failure to call a witness who would normally be expected to support that party’s version of events. The court cited People v. Gonzalez, stating that the instruction rests on “the commonsense notion that ‘the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause.’” The court then outlined the three preconditions for the missing witness instruction, established in Gonzalez: (1) the witness’s knowledge must be material to the trial; (2) the witness must be expected to give noncumulative testimony favorable to the party against whom the charge is sought; and (3) the witness must be available to that party.

    The court found that Camacho’s testimony was material and noncumulative. The court then addressed the availability element, noting that a litigant should not be penalized for failing to call a witness who is unavailable. The court stated, “Though a genuine inability to locate a witness will foreclose a missing witness instruction, a witness may be readily accessible and even in the courtroom but still be unavailable within the meaning of the rule.” In this case, the court determined that Savinon failed to demonstrate that Camacho was truly unavailable. The court reasoned that Savinon only communicated Camacho’s disinclination to testify through defense counsel, and counsel failed to subpoena Camacho. As such, the court found that the trial court did not abuse its discretion in determining that Camacho could have been produced if Savinon earnestly wanted him.

    Finally, the court addressed the favorability element, noting that control “does not concern physical availability but rather the relationship between the witness and the parties.” The court stated that where there is “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 control element is satisfied. Here, the court found that Savinon and Camacho had been friends and business associates. Therefore, the trial court did not abuse its discretion in determining that the favorability element was met.

  • 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.