Failure to Give “Missing Witness” Charge Results in New Trial Following Defense Verdict in Car Accident Case

In Devito v. Feliciano, decided November 26, 2013, the New York Court of Appeals held that the trial court erroneously failed to give a “missing witness” charge in a car accident case.

The court held:

[W]hen a missing witness charge is requested in a civil case, the uncalled witness’s testimony may properly be considered cumulative only when it is cumulative of testimony or other evidence favoring the party controlling the witness. It may not be considered cumulative simply because it would repeat or be consistent with an opposing party’s evidence.

This case arises from a 2006 car accident, in which plaintiff was a passenger in a car rear-ended by defendant. Discovery revealed that, four months before the accident (in 2005), plaintiff had fallen and sustained injuries. At trial, plaintiff declined to mention the 2005 fall, and her daughter (the driver of the car in which plaintiff was injured) denied any knowledge of it.

Defendants declined to call any of the physicians who had examined plaintiff on their behalf.  Plaintiff’s counsel thus requested a “missing witness” charge under Pattern Jury Instruction 1.75.

The trial court denied this request, reasoning that the defense physicians’ testimony “would be cumulative to what [plaintiff’s] doctors have already said.” It nevertheless allowed plaintiff’s counsel to address the issue in his summation, which he did.

Defense counsel’s closing argument focused on a “thread of dishonesty” throughout plaintiff’s case, particularly regarding plaintiff’s 2005 fall.

In his summation, plaintiff’s counsel tried to convince the jury to draw the strongest inference against the defendants based on their failure to call their doctors:

[D]on’t you think if these doctors had something to tell you that could help their case, that could show my client didn’t suffer these injuries as a result of this accident, don’t you think they would be here?” he asked, urging the jury “to draw the strongest inference based on the [failure] to call witnesses.”

The jury returned a defense verdict, the trial court dismissed plaintiff’s complaint, and the Appellate Division affirmed.  The Court of Appeals reversed.

It explained the law as follows:

An “uncalled witness” or “missing witness” charge instructs a jury that it may draw an adverse inference based on the failure of a party to call a witness who would normally be expected to support that party’s version of events. The charge, found in Pattern Jury Instructions at 1:75, advises a jury that if a party fails to offer a reasonable explanation for its failure to call a witness to testify on a question, then the jury may, although [it is] not required to, conclude that the testimony of [the witness] would not support [that party’s] position on the question . . . and would not contradict the evidence offered by [the opposing party] on this question (PJI 1:75). The jury is instructed that it may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding.

The preconditions for this charge … [are]: (1) the witness’s knowledge is material to the trial; (2) the witness is expected to give noncumulative testimony; (3) the witness is under the “control” of the party against whom the charge is sought, so that the witness would be expected to testify in that party’s favor; and (4) the witness is available to that party.

It was undisputed that defendants’ uncalled witnesses’ knowledge was material, that “their relationship with the uncalled witnesses makes it natural to expect that the witnesses would testify in their favor”, and that the uncalled witnesses were available.  Defendants argued that “the testimony of the uncalled witnesses would have been cumulative of the plaintiff’s treating physician and plaintiff’s radiology expert.”

The Court of Appeals disagreed, rejecting as a matter of law “defendants’ analysis of whether the uncalled witnesses’ testimony would have been cumulative.”


The appropriate analysis is found in Leahy v Allen (221 AD2d 88 [3d Dept 1996]), in which the Third Department held that “one person’s testimony properly may be considered cumulative of another’s only when both individuals are testifying in favor of the same party”, noting that to hold otherwise would lead to an anomalous result. Indeed, if the testimony of a defense physician who had examined a plaintiff and confirmed the plaintiff’s assertion of a serious injury were deemed to be cumulative to the evidence offered by the plaintiff, thereby precluding the missing witness charge, there would never be an occasion to invoke such charge. Accordingly, our holding is that an uncalled witness’s testimony may properly be considered cumulative only when it is cumulative of testimony or other evidence favoring the party controlling the uncalled witness.

In short, a witness’s testimony may not be ruled cumulative simply on the ground that it would be cumulative of the opposing witness’s testimony. Because the record indicates that the latter was Supreme Court’s rationale in this case, Supreme Court erred in denying plaintiff’s request for a missing witness charge.

Finally, it held that the error in disallowing the missing witness charge was not harmless, nor was it cured by plaintiff’s counsel’s summation.

Notably, while plaintiff’s counsel “conveyed to the jury, in his closing statements, much of the substance of the missing witness charge that plaintiff was denied … a trial counsel’s appeal to the jury during summation is not ordinarily a substitute for the appropriate jury charge by the court.”

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