NY Court of Appeals Holds Missing Witness Charge Misapplied By Appellate Court - Reversed

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

Ronald C. Burke, Esq

Trial Attorney with 30+ Years of Experience Attorney Ronald C. Burke, Esq. has more than 30 years of experience and has focused his career on representing clients in cases involving personal injury, medical malpractice and legal malpractice. He is a seasoned trial lawyer and has won many seven-figure settlements and verdicts for his clients over the years, including many case victories listed among the largest in the history of the New York State. He has been featured in the news and is a regular lecturer for the New York County Lawyers Association, as well as having lectured before the New York State Bar Association. Ron is also an attorney with Kelner & Kelner, a New York personal injury law firm. Awards and Accolades Mr. Burke's awards and accolades are many. Among them, he has been included in New York Super Lawyers® each year since 2010, and he has received the highest-possible AV® Rating from Martindale-Hubbell®. Verdict Search, a part of the New York Law Journal, frequently recognizes his notable successes after winning some of the highest settlements and verdicts in past years. He was also featured in their list of the "Top New York Verdicts " and "Top New York Settlements." He is a member of the New York State Bar Association and is licensed to practice law in the U.S. District Court for the Southern and Eastern Districts of New York, as well as before the United States Supreme Court. When Attorney Burke is not handling legal malpractice cases, he is highly involved in the local community. He was a member of the Village of Rockville Centre Volunteer Fire Department, has served on the local school board and as Chairman of the local Zoning Board. Learn more about Attorney Burke and how he can skillfully handle your malpractice case by contacting the Law Offices of Ronald C. Burke, Esq. right away to schedule your complimentary case evaluation. Our firm is here to help! Contact a New York Legal Malpractice Attorney Our firm provides each client's case with thorough preparation and aggressive representation, ensuring that you win the best possible results for your case whether it is settled or goes to trial. As a seasoned trial lawyer, Mr. Burke can provide the strong and relentless representation you need to establish negligence in a legal malpractice case and to recover any damages you may have suffered. Our firm can recover compensation for pre-trial and trial malpractice, violations of fee arrangements, loss of income, pain and suffering, and much more. Contact us today!


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