Kevin G. Faley and Rebecca Rosedale
*Originally published in the
Winter 2015 – Vol. 15 – No. 2

Witnesses are essential to the success or failure of a case. A good witness is every trial lawyer’s dream. A poor witness can lay waste to even the best case. Attorneys, obviously, will try to call to the stand those witnesses who are most favorable to their case, however, sometimes attorneys are stuck with a “bad” witness.

As we also know, the calling of expert witnesses is routine and, at trial, experts are necessary to help establish the elements of a case, to explain the issues to the jury and to provide a reasoned and thoughtful narrative. Attorneys will pay high fees for those experts who can positively affect the outcome of the litigation. However, occasionally, an attorney is faced with a situation where the expert’s testimony will not further his client’s case and the expert may, in fact, be a better witness for his adversary than for him. An attorney may decide not to call the witness at trial and, thus, avoid detrimental testimony. But this may create another problem.

In accordance with CPLR § 3101(d), an attorney discloses to opposing counsel the names of expert witnesses and examining physicians he or she plans to call at trial and the nature of the witnesses’ testimony. Likewise, the names and addresses of lay witnesses are also exchanged. In preparing for trial, opposing counsel may realize that these witnesses will actually support his case, but his adversary, perhaps coming to the same conclusion, decides not to call the witness.1 How can the opposing party make use of this incriminating evidence if an attorney fails to call the witness? The answer: New York’s missing witness charge.

Pursuant to New York’s Pattern Jury Instructions 1:75, a party’s failure to call a particular witness could lead to a jury charge allowing an adverse inference to be drawn. If the jury finds the party’s explanation for not calling the witness to be reasonable, the jury is instructed not to consider the failure of the party to call the witness in evaluating the evidence.

If, however, the explanation is not reasonable or the party did not give an explanation,

[The jury] may, although [is] not required to, conclude that the testimony of [the witness] would not support [the non-calling party’s] position on the question of [the issue]; and would not contradict the evidence offered by [the adverse party] on [the issue] and [the jury] may, although [is] not required to, draw the strongest inference against the [party] on that question, that opposing evidence permits.2


The charge is premised on the “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.”3

There are four preconditions to this jury charge. The requesting party must show: (1) the uncalled witness has knowledge about a material issue; (2) the witness is available to the non-calling party to testify; (3) the witness is under the “control” of the non-calling party, such that the witness would be expected to give testimony favorable to that party; and (4) the witness is expected to give noncumulative testimony.4

This article will initially discuss the definition of what is “noncumulative testimony” in light of a recent 2013 New York Court of Appeals’ decision and will then address the three other preconditions to the missing witness charge.

Non-Cumulative Testimony

In DeVito v. Feliciano, the Court of Appeals clarified the noncumulative testimony requirement of the missing witness charge: testimony will be considered cumulative only if it is cumulative of testimony presented by the non-calling party.5 Even if the uncalled witness’s testimony would be cumulative of testimony presented by the party requesting the charge, the judge can still instruct the jury as to the charge. To determine if the testimony would be cumulative, one needs to cross-check the testimony presented by the non-calling party.

In DeVito, the plaintiff alleged injuries to her nose and back as a result of an automobile accident. Plaintiff’s medical records revealed that four months before the accident, plaintiff fell and sustained a minor concussion and an injury to her wrist. At the trial, two doctors testified on plaintiff’s behalf that the motor vehicle accident was “the competent producing cause” of plaintiff’s neck and nose injuries.

During defense counsel’s cross-examination, however, the same doctors speculated as to the cause of plaintiff’s nose injury. One doctor acknowledged that plaintiff “was not a good historian of her health” and added that based on his evaluation of plaintiff’s medical records “it appeared that plaintiff had not suffered an injury to her nose on the date of the car accident.”6 The other doctor conceded that it was “possible that plaintiff sustained her nasal fracture at some point before the date of the car accident.”7

Despite defense counsel’s obvious goal to cast doubt upon the cause of plaintiff’s injury, defense counsel did not call to testify any of the four doctors who had examined plaintiff on his behalf. Defense counsel opted, instead, to read portions of one of the doctor’s deposition testimony into the record. The testimony defense counsel chose to read included statements by the doctor that plaintiff was “not a very reliable historian” and that the doctor “could not say with certainty that plaintiff’s nasal fracture had been caused by the car accident.”8

Plaintiff’s counsel, noting the defense’s failure to produce any of the four doctors at trial, requested that the court give a missing witness charge. The trial court denied the request and the jury returned a verdict in favor of the defendant.9 The Appellate Division affirmed, holding that the jury’s verdict was based on a fair interpretation of the evidence. The Appellate Court stated that the trial court did not “err in declining to provide a missing witness charge since plaintiff did not satisfy the elements that are a prerequisite for receiving the charge.”10

The Court of Appeals reversed, finding that the trial court’s failure to give a missing witness charge was prejudicial to a substantial right of the plaintiff. Defense counsel argued that the noncumulative precondition to the charge was not satisfied because the doctors’ testimony would have been cumulative of the testimony of the witnesses who testified on plaintiff’s behalf.11 The Court of Appeals ruled 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.”12

The Court relied on the Third Department’s analysis in Leahy v. Allen in deciding the issue. 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.”13 The Third Department explained that without such a holding “there would never be an occasion to invoke [the missing witness charge].”14

The Court in DeVito acknowledged that plaintiff’s counsel’s appeal to the jury during closing – “[D]on’t you think if [the doctors not called by the defense] had something to tell you that could help [defendant’s] 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?” – was not a substitute for the charge.15

Although the jury was capable of making an inference based on such a statement, the jury was not instructed that they could draw the “strongest inference.” Furthermore, the Court stated that the testimony elicited during defense counsel’s cross-examinations was not so conclusive as to cast doubt upon plaintiff’s claims. For these reasons, the Court held that plaintiff was prejudiced by the trial court’s failure to instruct the jury as to the missing witness charge.

The Other Preconditions

  1. Materiality

    Demonstrating that the uncalled witness testimony would be noncumulative in nature is only one piece to the puzzle. The other elements, however, are clearer and simpler than the noncumulative testimony requirement.

    With regards to materiality, the party seeking the benefit of the charge has the burden of establishing that the uncalled witness will give testimony material to the issues in the case. The charge would be improper, for example, if the uncalled witness is a physician who previously treated or examined the plaintiff, but not with regard to injuries alleged in the pending action.16

    In Feneck v. First Union Real Estate & Mortgage Investments, the court denied the missing witness charge as to plaintiff’s primary care physician because the physician did not treat plaintiff for the injuries sustained in the accident and, thus, “could not provide testimony regarding a material issue in the case.”17

    The missing witness charge is proper, however, where the uncalled witness was an eyewitness to the incident in issue. In People v. Hall, the Court of Appeals held that the missing witness charge was proper where the three uncalled witnesses were eyewitnesses to the robbery in question and, thus, had knowledge material to the trial.18

    In Crowder v. Wells & Wells Equipment, Inc., the First Department held that the defendant bus company and bus driver were entitled to the missing witness charge as to the defendant taxi driver where plaintiffs, passengers of the taxi cab, had no recollection of the accident and the taxi driver would have been knowledgeable about a material issue since he was “in a position to give testimony with respect to whether or not the [taxi] was under his control prior to the impact with the [defendants’] bus.”19

  2. Availability

    The availability requirement goes to the party’s ability to produce the witness. A witness is unavailable if he or she is, among other things, beyond the jurisdiction of the court,20 dead, missing, incapacitated or refusing to testify on Fifth Amendment grounds.21 The party against whom the charge is sought has the burden of showing that the witness is unavailable to testify.22

    In Dukes v. Rotem, the First Department found that the unavailability element was not met where, even though plaintiff claimed that the doctor failed to respond to her letters, there was no evidence that the doctor’s medical records and testimony could not be obtained by means of a subpoena.23

    In Taveras v. Martin, the First Department held that the party opposing the missing witness charge failed to demonstrate that the uncalled witness was unavailable where there was no evidence that the witness remained ill after his hospital release.24

  3. Control

Finally, control refers to the witness’s relationship to the party. A party who lists a witness usually expects that witness to testify on its behalf and, thus, the party exercises control over that witness.25 “Control is used in a very broad sense and includes a witness under the influence of a party as well as one under a party’s employment or management.”26

Generally, where a party and a witness once had a strong relationship (i.e., boyfriend/girlfriend, employer/employee), but the relationship has since been “extinguished” (i.e., ex-boyfriend/ex-girlfriend, ex-employer/ex-employee), the element of control will not be satisfied.27 However, in R.T. Cornell Pharmacy, Inc. v. Guzzo, the Third Department held that defendant’s mere testimony that he was no longer in a business relationship with the witness did not “preclude a finding of control as a matter of law” since the defendant failed to offer testimony of a changed business relationship such that the witness would be “hostile or uncooperative” if called as a witness.28

In People v. Smith, the Second Department held that where a witness, among other things, indicated his unwillingness to cooperate, the party opposing the missing witness charge gave a “good reason for the witness’s absence.”29

In Diorio v. Scala, the Third Department concluded that the missing witness charge was properly denied where there was a lack of evidence as to plaintiff’s control over the witness doctor since the uncalled witness doctor had not treated the plaintiff in the five years prior to trial and plaintiff had started treatment with another physician.30

Finally, in Follett v. Thompson, the Second Department denied a missing witness charge request where the only evidence submitted in support of the relationship between the witness and the defendant was that they were co-employees.31 The record was devoid of any evidence of “friendship or loyalty” between the defendant and the witness to satisfy the element of control.32


The missing witness charge is an important tool and litigators who believe that the jury is being denied the whole picture due to a party’s failure to call a witness should request its instruction. “The mere failure of a party to produce a witness at trial, standing alone, is insufficient to justify a missing witness charge.”33 The charge will only be given after a request has been made, which should be made as soon as possible,34 and the four preconditions are satisfied:

1. Materiality – the uncalled witness’s testimony would be about a material issue in the case;

2. Availability – if it was not for the party’s failure to call the witness, the uncalled witness would be available to testify;

3. Control – the uncalled witness, because of his relationship with a party, is expected to testify on that party’s behalf; and

4. Noncumulative – the uncalled witness’s testimony would be noncumulative of testimony presented on behalf of the non-calling party.

Failure to call a witness is clearly intentional. The failure is usually an attempt to prevent damaging evidence being provided by a “friendly” witness. This testimony can be devastating to one’s case as opposing counsel will no doubt point out to the jury that the harmful testimony was supplied by someone friendly to that party and therefore it must be true.

The Court of Appeals’ clarified definition of noncumulative testimony should encourage more parties to request the charge and inevitably hold opposing parties accountable for the absence of a vital witness.


1 N.Y. C.P.L.R. § 3101(d)(1) (McKinney 2013) (“Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify….”).

2 N.Y. Pattern Jury Instr. 1:75 (2013) (emphasis added).

3 People v. Savinon, 100 N.Y.2d 192, 196, 761 N.Y.S.2d 144, 146-47 (2003) (internal quotation marks omitted).

4 See id. at 197; People v. Gonzalez, 68 N.Y.2d 424, 427, 502 N.E.2d 583 (1986).

5 DeVito v. Feliciano, 22 N.Y.3d 159, 1 N.Y.3d 791 (2013).

6 Id. at 163.

7 Id. at 164.

8 Id.

9 DeVito v. Feliciano, 2010 WL 6971895 (Sup. Ct. Bronx Cnty, 2010).

10 DeVito v. Feliciano, 84 A.D.3d 645, 924 N.Y.S.2d 330 (1st Dep’t 2011).

11 DeVito, 22 N.Y.3d at 166.

12 Id. (emphasis added).

13 Leahy v. Allen, 221 A.D.2d 88, 92, 664 N.Y.S.2d 88 (3d Dep’t 1996).

14 Id.

15 DeVito, 22 N.Y.3d at 165, 167.

16 Feneeck v. First Union Real Estate Equity & Mortg. Invs., 266 A.D.2d 916, 916, 697 N.Y.S.2d 442 (4th Dep’t 1999).

17 Id. at 916.

18 People v. Hall, 18 N.Y.3d 122, 936 N.Y.S.2d 630 (2011).

19 Crowder v. Wells & Wells Equip., Inc., 11 A.D.3d 360, 361, 783 N.Y.S.2d 552, 554 (1st Dep’t 2004).

20 See Cohen v. Lukacs, 272 A.D.2d 501, 708 N.Y.S.2d 133 (2d Dep’t 2000) (uncalled witness was unavailable as a matter of law where, at the time of trial, she resided in another state and was “beyond the jurisdiction of the court”); see also Zeeck v. Melina Taxi Co., 177 A.D.2d 692, 576 N.Y.S.2d 878 (2d Dep’t 1991).

21 See N.Y. Pattern Jury Instr. 1:75 cmt. II.C (2013).

22 People v. Gonazalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796.

23 Dukes v. Rotem, 191 A.D.2d 35, 40, 599 N.Y.S.2d 915, 918 (1st Dep’t 1993).

24 Taveras v. Martin, 54 A.D.3d 667, 863 N.Y.S.2d 475 (2d Dep’t 2008)

25 See People v. Hall, 18 N.Y.3d at 131, 936 N.Y.S.2d at 630 (holding that the uncalled witness was in a party’s control where the uncalled witness “could have been expected to support his version of events”).

26 Chandler v. Flynn, 111 A.D.2d 300, 301, 489 N.Y.S.2d 289, 291 (2d Dep’t 1985).

27 See In Re Judicial Settlement of Second Intermediate Account of Chase Manhattan Bank, 2 Misc. 3d 1002(A), 784 N.Y.S.2d 921 (Sur. Monroe Cnty. 2004) (holding that the element of control was missing where witness was a former employee of the petitioner); see also People v. Gonzalez, 68 N.Y.2d 424, 502 N.E.2d 583 (1986) (defense counsel entitled to missing witness charge where the people failed to call complainant’s husband as a witness); Buttice v. Dyer, 1 A.D.3d 552, 767 N.Y.S.2d 784 (2d Dep’t 2003) (ex-girlfriend was not under party’s control).

28 R.T. Cornell Pharmacy, Inc. v. Guzzo, 135 A.D.2d 1000, 1001, 522 N.Y.S.2d 725, 726 (3d Dep’t 1987)

29 People v. Smith, 71 A.D.3d 1174, 1175-76, 898 N.Y.S.2d 599 (2d Dep’t 2010), citing Savinon, 100 N.Y.2d at 196.

30 Diorio v. Scala, 183 A.D.2d 1065, 583 N.Y.S.2d 654 (3d Dep’t1992).

31 Follett v. Thompson, 171 A.D.2d 777, 778, 567 N.Y.S.2d 497, 498 (2d Dep’t 1991).

32 Id.

33 People v. Morris, 140 A.D.2d 551, 552, 528 N.Y.S.2d 630 (2d Dep’t 1988).

34 Early notification “allow[s] the court to appropriately exercise its discretion and the parties to adjust trial strategy.” N.Y. Pattern Jury Instr. 1:75, cmt. (citing People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796 (1986)).