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http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=46376 Judge Saitta A JURY convicted defendant of assault, menacing and harassment for burning his wife, who had refused to cooperate in defendant’s prosecution. The court had denied a defense request for a missing witness charge based on the prosecution’s failure to call the wife as a witness. The court denied defendant’s motion to set the verdict aside on grounds that the failure to give a missing witness charge was reversible error. Because emotional, economic, familial and cultural reasons for a domestic violence victim’s refusal to testify preclude presumption of the victim’s common interest in prosecution of or hostility to a defendant, the relationship between the prosecution and the domestic violence victim falls short of that presumed by the missing witness doctrine. Because “control” refers to the relationship between the witness and the parties, a “missing witness” charge would be improper. It is also generally improper for the prosecution to call a witness to the stand when it knows that the witness will not testify.

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