On June 6, 2019, the New York Court of Appeals restated a burden-shifting analysis, often misconstrued by lower courts, regarding the application of a missing witness charge. As a result, a Rochester man convicted of attempting to murder a woman will be allowed a new trial. The victim was walking with her then boyfriend, when both came under attack by a stranger who fired his pistol repeatedly at both of them but only struck the woman. The boyfriend and victim were the only eyewitnesses to the shooting. The trial Judge denied the defense request that the jury be given a missing witness charge regarding the failure of the prosecution to call the boyfriend to testify as an eyewitness. The boyfriend was admittedly available, his testimony was relevant and he was under the control of the prosecution.

The missing witness charge is a legal principle explained to juries before they deliberate which tells them that they can draw an unfavorable inference when one side fails to call an available witness who would normally be expected to support their version of the events. 

Both the trial court and the Appellate Division held that the defense had the initial burden of demonstrating that the boyfriend's testimony would not be cumulative to that of any other witness. The Court of Appeals disagreed and explained that "we have never required the proponent of a missing witness charge to negate cumulativeness to meet the prima facie burden." Quoting from another case in 1991 the Court of Appeals held: "[t}o require the party requesting a missing witness charge to furnish details which could only be obtained from the very witness the opposing party has failed to produce... would vitiate the rule we established in Gonzalez...." People v Smith, 2019 WL 2374228