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
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