Michael J. Hutter
Michael J. Hutter ()

This column will discuss developments in the application of New York’s missing witness rule and charge and analyze the Court of Appeals’ decisions in Devito v. Feliciano, 22 N.Y.3d 159 (2013) and People v. Thomas, 21 N.Y.3d 226 (2013). Devito decided an issue involving the noncumulative testimony precondition for the charge; and Thomas addressed that precondition in the context of defense counsel’s missing witness argument in summation which was made in the absence of a missing witness charge. Devito and Thomas are sound, pragmatic decisions, and together with Matter of Adam K., 110 A.D.3d 168 (2d Dept. 2013), an instructive decision from the Second Department involving the missing witness rule, which was discussed in a prior column,1 provide further elucidation of New York’s venerable missing witness rule.

Missing Witness Charge

Initially, Devito is important as it confirms the preconditions for the invocation of the missing witness charge as set forth in Pattern Jury Instructions (PJI) 1:75.2 The court states them 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 person’s favor; and (4) the witness is available to that party.” Devito, 22 N.Y.3d at 165-166.3

Notably, the party seeking the charge must initially show there is an uncalled witness who would be expected to testify favorably on behalf of the opposing party on a material issue. It is then incumbent upon the opposing party in order to defeat the request to demonstrate that the witness has no knowledge about the issue, or that the issue is not relevant, or that the witness is physically unavailable, or not under the party’s control, or that the testimony would be cumulative, or otherwise establish that the charge would be inappropriate.4


In Devito, plaintiff was injured in an automobile accident when the car she was riding in was “rear-ended” by a van driven by defendant. She alleged she sustained a “serious injury” as defined in Insurance Law §5102(d), specifically, a fracture of a vertebra and a nasal fracture. After the defendant driver and defendant owner of the van were found negligent as a matter of law, a jury trial was conducted as to whether the accident was a proximate cause of her alleged fractures and assess damages.

At the trial plaintiff called two physicians as expert witnesses who both opined the accident was the cause of her fractures. Defendants, contending that the fractures did not result from the accident, but from a prior fall or other incident, cross-examined both experts, and by that cross-examination raised several inconsistencies relating to plaintiff’s medical history and prior treatments. Although defendants had two physicians conduct independent medical examinations (IME) of plaintiff prior to trial, they did not call either to testify. Devito, 22 N.Y.3d at 164. The trial court observed that “[defense counsel] decided not [to call his medical witnesses] because he thought [plaintiff's] doctors were so bad.”5

Prior to the close of proof, plaintiff requested a missing witness charge. The trial court denied the request for the charge, but permitted plaintiff to argue the issue on summation. In its view, the defense physicians’ testimony “would be cumulative to what your [plaintiff's] doctors have already said.” Id. at 164.6 The jury returned a verdict for defendants, finding the accident was not a proximate cause of plaintiff’s injuries. Id.

The First Department, in upholding the verdict, held the trial court did not err in declining to give the charge. 84 A.D.3d 645 (1st Dept. 2011). In support, the court cited Getlin v. St. Vincent’s Hosp. & Med. Ctr. of N.Y., 117 A.D.2d 707, 708-709 (2d Dept. 1986), which had been relied upon by the trial court. The Second Department in Getlin had rejected plaintiff’s argument that the trial court erred in not granting the charge based on defendants’ failure to call their IME physician on the ground there was no showing that his testimony would have not been cumulative of the plaintiff’s medical testimony.

Before the Court of Appeals, the defendants did not deny that their medical witnesses’ knowledge was material or that they “controlled” the witnesses, or that the witnesses were unavailable. They argued only that the testimony of their IME physicians would have been cumulative of the testimony presented by the plaintiff’s medical experts. Devito, 22 N.Y.3d at 166. In support, they relied on Getlin.

The court phrased the issue before it as whether 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 witness” Devito, 23 N.Y.3d at 161-162. In an opinion authored by Judge Eugene F. Pigott, the court unanimously answered in the affirmative.7 It held the testimony of an uncalled witness “may not be considered cumulative simply because it would repeat or be consistent with an opposing party’s evidence.” Id. at 162.

Although not expressly recognized by the court or by the parties, the Appellate Divisions were evenly split on the issue. The Third Department in Leahy v. Allen, 221 A.D.2d 88, 92 (3d Dept. 1996) and the Fourth Department in Marinaro v. Radolinski, 23 A.D.3d 1079, 1079-1080 (4th Dept. 2005) had expressly rejected the First and Second Departments’ position, holding that an uncalled witness’ testimony could be considered cumulative of another witness’ testimony only when both witnesses are testifying in favor of the same party.8

The Court of Appeals adopted the analysis of the issue by the Third Department in Leahy, finding it to be “appropriate.” Devito, 22 N.Y.3d at 166. As to that analysis the Third Department had cogently noted in Justice Paul J. Yesawich’s opinion 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 a charge.” Leahy, 221 A.D.2d at 92.

In the aftermath of Devito, when a plaintiff is examined by a physician designated by a defendant pursuant to CPLR 3121, the failure by the defendant to call that witness at trial may lead to the missing witness charge unless the defendant can establish the testimony from that witness is cumulative of testimony or other evidence offered by the defendant, or there is some other reason to defeat it. Thus, for example, where the physician’s testimony supports the defendant, e.g., absence of serious injury or causation, the charge could still be invoked unless the witness’ testimony would be cumulative of medical testimony or other medical evidence offered by the defendant.

If defendant offers no other medical proof because of the belief the plaintiff’s medical proof was not credible, the charge could be defeated based on an argument that there was no need then to call the witness. On the other hand, where the uncalled witness’ testimony supports plaintiff’s claim, it will almost always be considered noncumulative, thus permitting the charge. The fact that the testimony of plaintiff’s physician(s) was contradictory, equivocal and seriously undermined on cross-examination, thereby raising credibility and reliability issues, does not render the testimony of the uncalled defense physician noncumulative. On this point Devito is clear.

Are there any public policy reasons why a defendant should not be subject to a missing witness charge as a result of a favorable (for plaintiff) opinion derived from an IME? In Marinaro, defendant made such an argument, contending “[i]t would create a needless peril for the defense if each time an examination was conducted the defense would be put in jeopardy of the onerous consequences of a PJI 1:75 charge.… To schedule a defense examination would do more harm than good.”9 The Fourth Department summarily rejected the argument. Marinaro, 23 A.D.3d at 1079-1080.

Additionally, Devito will make it difficult for a defendant to assert successfully a “harmless error” argument in response to an appellate court”s determination that the request for a missing witness charge was erroneously denied. In that regard, plaintiff’s counsel in Devito conveyed to the jury in his summation much of the substance of the missing witness charge that was denied as it pertained to the case. However, the court held that “summation is not ordinarily a substitute for the appropriate jury charge by the court.” Devito, 23 N.Y.3d at 167.10 The court also rejected defendant’s argument that the cross-examination of plaintiff’s witnesses which cast “doubt” on the causation claim relating to plaintiff’s fractured nose, but did not “thoroughly challenge[ ]” the vertebra fracture claim, was sufficient to render the error harmless. Id. Such cross-examination will support a finding of harmless error only when the evidence “ so clearly supported a verdict in favor of the defendants that Supreme Court’s error did not prejudice a substantial right of the plaintiff.” Id.


In Thomas, defendant was prosecuted for sexually assaulting the mother of his children. At the trial she testified to specific details of the assault. When asked why a statement she had given a police officer shortly after the assault had allegedly occurred omitted one of those details, she testified she told the officer about that matter, and the officer told her that no judge would believe it occurred because of the intimate nature of her relationship with defendant. The officer did not testify.

During summation defense counsel questioned whether the officer actually said that to complainant, and asked why the officer did not testify and explain why that matter was omitted from the statement. The trial court sustained the prosecutor’s objection to the argument and directed the jury to disregard it. The basis for its ruling was that counsel was required to request a missing witness instruction if he wanted to make the argument. Defendant was convicted.

On appeal, the Fourth Department held the trial court erred in ruling that a missing witness instruction is a prerequisite to a missing witness argument. However, the court affirmed the conviction on the ground “there was no good faith basis” to make the argument because “[i]n the event that the officer would have merely confirmed the victim’s story, such testimony would have been cumulative” and that “defendant never made an offer of proof with respect to the officer’s prospective testimony. People v. Thomas, 85 A.D.3d 1572, 1573 (4th Dept. 2011).

The Court of Appeals in an opinion written by Judge Robert S. Smith affirmed. Initially, the court acknowledged that defense counsel who has not sought a missing witness instruction may nonetheless try to persuade the jury to draw inferences from the People’s failure to call an available witness with material noncumulative information about the case. While the court agreed with the Fourth Department that a request for a missing witness instruction is not a prerequisite to a missing witness argument, it rejected the Fourth Department’s imposition of the need for an offer of proof, holding there is “no obligation to make an offer of proof as a predicate for a missing witness argument.” Thomas, 21 N.Y.3d at 231.

As to the Fourth Department’s alternative ground that the missing witness argument was properly barred because the officer’s testimony would have been cumulative, the court held that ruling was erroneous because “confirmation of [complainant's] testimony from that officer would not have been cumulative.” Id. By its citation to People v. Rodriguez, 38 N.Y.2d 95, 101 (1975), the court was expressing its view that the testimony of an uncalled witness will not be viewed as cumulative when it serves to provide the only corroboration of a party’s version of events or on a material issue which is in sharp dispute. However, the error was found to be harmless because there was “strong evidence” that the omitted matter did occur, thereby diminishing the significance of the omission of that matter from the statement in issue. Id. at 231.


Devito and Thomas are important decisions. They need to be kept in mind not only in the pre-trial stage of the litigation when decisions are made as to potential trial witnesses but also at trial as to whether a witness will be called.

Michael J. Hutter is a professor at Albany Law School, and is special counsel to Powers & Santola.


1. Hutter, “Application of Missing Witness Rule to Treating and Examining Physicians,” NYLJ, Oct. 3, 2013, p. 3, col. 3.

2 . 1A NYPJI3d (2014 ed) 1:75.

3 . While the PJI “Comment” recognizes three preconditions, the difference is readily explainable as the court treats the noncumulative requirement as a separate precondition and does not combine it with the control requirement as does the Comment. see, 1A PJI3d 92014 ed), pp. 113-114.

4. See, People v. Gonzales, 68 N.Y.2d 424, 427 (1986).

5. Plaintiff’s Appendix 572.

6. As the physicians’ reports were not marked for identification, plaintiff merely argued that defendants’ physicians “would not have been able to controvert anything that plaintiff’s doctors have testified to.” Plaintiff’s Reply Brief, citing to Record on Appeal at 572-577.

7. Judge Sheila Abdus-Salaam took no part as she sat on the First Department panel.

8. Of note, the Comment to PJI 1:75 cites only to Getlin, and does not identify the split among the Appellate Divisions. 1A PJI3d (2014 ed) at pp. 115-116.

9. Brief for Defendant-Appellant, p. 14.

10. Nonetheless, the court’s use of the word “ordinarily” suggests the possibility of a case where the summation was so powerful or strong that harmless error is present.