Key Takeaway
New York court ruling on missing witness charges in civil trials - when courts should instruct juries to draw adverse inferences from a party's failure to call expected witnesses.
Alli v Full Serv. Auto Repair, LLC, 2015 NY Slip Op 03308 (2d Dept. 2015)
The missing witness charge
“The plaintiff requested that the Supreme Court deliver a missing witness charge because of the failure of the defense to call Chinsamy as a witness. This request was refused and no such charge was given. The jury returned a verdict in favor of the defendants.
A 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 preconditions for this charge, applicable to both criminal and civil trials, may be set out as follows: (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” (DeVito v Feliciano, 22 NY3d 159, 165-166 ).
Under the circumstances, and considering Chinsamy’s unexplained failure to appear and testify at trial, the Supreme Court should have granted the plaintiff’s request for a missing witness charge (see Katz v Gangemi, 60 AD3d 819; Brown v City of New York, 50 AD3d 937; Crowder v Wells & Wells Equip., Inc., 11 AD3d 360; Farrell v Labarbera, 181 AD2d 715). In this regard, we note that the plaintiff’s use of Chinsamy’s deposition testimony does not constitute a waiver of her right to request a missing witness charge (see Webber v K-Mart Corp., 266 AD2d 534; Farrell v Labarbera, 181 AD2d 715). In light of the evidence presented, the error cannot be deemed harmless (see Crowder v Wells & Wells Equip., Inc., 11 AD3d at 362)”
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