In a New York criminal trial, after both parties present their evidence, the judge will instruct the jury on the applicable law. The court’s jury instructions, or jury charge as it is also known, is an essential part of the trial because it frames how the jury will view the case and what questions the jurors must answer. Like other phases of the trial, each side can present proposed jury instructions to the court in hopes of obtaining a favorable instruction.
One of the most important jury instructions in a New York violent crime case is a missing evidence instruction. Missing evidence instructions can be based on physical evidence or witness testimony. A missing witness instruction is when the court explains to the jury that it can “draw an unfavorable inference based on a party’s failure to call a witness who would normally be expected to support that party’s version of events.” A recent case illustrates the importance of a missing witness instruction.
According to the court’s opinion, the victim was walking with her boyfriend as the defendant approached them from behind. As the defendant neared the couple, the victim’s boyfriend saw that the defendant had a gun and pushed the victim out of the way. The victim fell to the ground, and looked up at the defendant as he shot her. The victim was later found by police and identified the defendant.
Initially, the prosecution intended on calling the victim’s boyfriend as a witness. However, he never testified. The defendant sought a missing witness instruction, but the court denied the request. The defendant was convicted and filed an appeal.
On appeal, the defendant argued that the trial court should have given the jury a missing witness instruction based on the prosecution’s failure to call the victim’s boyfriend. The court agreed, explaining that a missing witness instruction is appropriate when the proponent of the charge can establish:
- that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case;
- that such witness can be expected to testify favorably to the opposing party; and
- that the opposing party failed to call the witness.
If the proponent of the charge, in this case, the defendant, can establish each of the above elements, then the burden shifts to the opposing party to show that the charge would not be proper. One way of doing this is to show that the witness’ testimony would be cumulative. If the opposing party meets their burden, then the burden again shifts back to the proponent of the charge to show why the instruction would be appropriate.
Here, the court held that the trial court improperly placed the burden of showing that the witness’ testimony was not cumulative on the defendant. The court reasoned that a defendant would not typically have the information necessary to explain why an uncalled witness’ testimony would not be cumulative. The court went on to hold that the defendant met his initial burden and that the prosecution’s bald assertion that the victim’s boyfriend’s testimony would have been cumulative was insufficient to show that the charge was inappropriate. Thus, the court reversed the defendant’s conviction and ordered a new trial.
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