Admissibility of Evidence - Privilege - Adverse Inference from Failure of Party to Testify and Failure to Call Favorable Witness - Missing Witness Rule in Civil Case
An unfavorable inference may be drawn from the failure of a party to take the stand and from the invocation of the privilege by a party.[1] Where a party to an action, knowing the truth of a matter in controversy and having the evidence in his possession, omits to speak, every inference warranted by the evidence will be indulged in against him.[2]
A missing witness instruction tells a jury that it may 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. [3] The rationale underlying the rule “derives from the commonsense notion that the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party's cause. [4] The same principles generally apply in a civil jury trial. A party is entitled to a missing witness charge when the party establishes that an uncalled witness possessing information on a material issue would be expected to provide noncumulative testimony in favor of the opposing party and is under the control of and available to that party.[5] Where one or more of these elements is absent, the movant is not entitled to the charge.[6]
The missing witness rule may be applied in a nonjury civil trial, where the trial court, as the finder of fact, is permitted to draw a negative inference against a party failing to call a witness who would be expected to provide noncumulative testimony in favor of the party. [7] However, in the absence of evidence that the witness is within a party’s control, it is error to apply a negative inference based upon a party’s failure to call a witness.[8] This rule does not apply where the testimony from that witness would have been cumulative.[9]
[1] Isquith v. Isquith, 229 App. Div. 555, 242 N.Y. Supp. 383; Butler v. Butler, 134 N.Y.S.2d 108, aff'd 13 App. Div. 900.
[2] Dowling v. Hastings, 211 N. Y. 199, 202; Wylde v. Northern R. R. Co. of N. J. 53 N. Y. 156.
[3] People v Hall, 18 NY3d 122, 131 [2011]; see People v Savinon, 100 NY2d 192, 196 [2003]).
[4] People v Gonzalez, 68 NY2d 424, 427 [1986]; see Graves v United States, 150 US 118, 121 [1893]; People v Savinon, 100 NY2d at 196; People v Hovey, 92 NY 554, 559-560 [1883].
[5] Zito v City of New York, 49 AD3d 872, 874 [2008] [internal quotation marks omitted]; see Jackson v County of Sullivan, 232 AD2d 954, 955 [1996]; Kupfer v Dalton, 169 AD2d 819 [1991].
[6] See Pope v 818 Jeffco Corp., 74 AD3d 1163, 1164 [2010] [the witness was not under the opposing party's control]; Holbrook v Pruiksma, 43 AD3d 603, 605-606 [2007] [the witness was not expected to offer testimony favorable to the opposing party]; Pasquaretto v Cohen, 37 AD3d 440, 441 [2007] [the witness was not available and the testimony would have been cumulative]; Cohen v Lukacs, 272 AD2d 501, 501-502 [2000] [same])
[7] 178 Coliseum Towers Assoc. v County of Nassau, 2 AD3d 562, 565 [2003] [the trial court improperly drew a negative inference against the defendant County for its failure to call former County employees as witnesses because they were not under the County's direction or control); Adam K. v. Iverson, 110 A.D.3d 168, 176-81, 970 N.Y.S.2d 297 (App. Div. 2013).
[8] Matter of Adam K., 110 A.D.3d 168, 176-185 [2013]; Matter of Richard E., 12 A.D.3d 1019, 1021 [2004].
In Spooner-Boyke v. Charles, 121 A.D.3d 1120, 995 N.Y.S.2d 583 ( 2d Dept., 2014), the Appellate Division held that Family Court erred in drawing a negative inference based on the mother's failure to call the child's maternal grandmother as a witness. A party is entitled to a missing witness charge when the party establishes that an uncalled witness possessing information on a material issue would be expected to provide noncumulative testimony in favor of the opposing party and is under the control of and available to that party. The court sua sponte drew a negative inference based on the mother's failure to call the grandmother as a witness, and failed to advise the mother that it intended to do so. The mother, therefore, lacked the opportunity to explain her failure to call the grandmother as a witness, or to discuss whether the grandmother was even available to testify or under her control.
[9] In Matter of Spiegel v Spiegel, 68 A.D.3d 881, 889 N.Y.S.2d 488 (2d Dept., 2009) the Appellate Division held that the Support Magistrate properly declined to draw an adverse inference against the mother for her failure to produce her current child care worker to testify, as testimony from that witness would have been cumulative.
An unfavorable inference may be drawn from the failure of a party to take the stand and from the invocation of the privilege by a party.[1] Where a party to an action, knowing the truth of a matter in controversy and having the evidence in his possession, omits to speak, every inference warranted by the evidence will be indulged in against him.[2]
A missing witness instruction tells a jury that it may 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. [3] The rationale underlying the rule “derives from the commonsense notion that the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party's cause. [4] The same principles generally apply in a civil jury trial. A party is entitled to a missing witness charge when the party establishes that an uncalled witness possessing information on a material issue would be expected to provide noncumulative testimony in favor of the opposing party and is under the control of and available to that party.[5] Where one or more of these elements is absent, the movant is not entitled to the charge.[6]
The missing witness rule may be applied in a nonjury civil trial, where the trial court, as the finder of fact, is permitted to draw a negative inference against a party failing to call a witness who would be expected to provide noncumulative testimony in favor of the party. [7] However, in the absence of evidence that the witness is within a party’s control, it is error to apply a negative inference based upon a party’s failure to call a witness.[8] This rule does not apply where the testimony from that witness would have been cumulative.[9]
[1] Isquith v. Isquith, 229 App. Div. 555, 242 N.Y. Supp. 383; Butler v. Butler, 134 N.Y.S.2d 108, aff'd 13 App. Div. 900.
[2] Dowling v. Hastings, 211 N. Y. 199, 202; Wylde v. Northern R. R. Co. of N. J. 53 N. Y. 156.
[3] People v Hall, 18 NY3d 122, 131 [2011]; see People v Savinon, 100 NY2d 192, 196 [2003]).
[4] People v Gonzalez, 68 NY2d 424, 427 [1986]; see Graves v United States, 150 US 118, 121 [1893]; People v Savinon, 100 NY2d at 196; People v Hovey, 92 NY 554, 559-560 [1883].
[5] Zito v City of New York, 49 AD3d 872, 874 [2008] [internal quotation marks omitted]; see Jackson v County of Sullivan, 232 AD2d 954, 955 [1996]; Kupfer v Dalton, 169 AD2d 819 [1991].
[6] See Pope v 818 Jeffco Corp., 74 AD3d 1163, 1164 [2010] [the witness was not under the opposing party's control]; Holbrook v Pruiksma, 43 AD3d 603, 605-606 [2007] [the witness was not expected to offer testimony favorable to the opposing party]; Pasquaretto v Cohen, 37 AD3d 440, 441 [2007] [the witness was not available and the testimony would have been cumulative]; Cohen v Lukacs, 272 AD2d 501, 501-502 [2000] [same])
[7] 178 Coliseum Towers Assoc. v County of Nassau, 2 AD3d 562, 565 [2003] [the trial court improperly drew a negative inference against the defendant County for its failure to call former County employees as witnesses because they were not under the County's direction or control); Adam K. v. Iverson, 110 A.D.3d 168, 176-81, 970 N.Y.S.2d 297 (App. Div. 2013).
[8] Matter of Adam K., 110 A.D.3d 168, 176-185 [2013]; Matter of Richard E., 12 A.D.3d 1019, 1021 [2004].
In Spooner-Boyke v. Charles, 121 A.D.3d 1120, 995 N.Y.S.2d 583 ( 2d Dept., 2014), the Appellate Division held that Family Court erred in drawing a negative inference based on the mother's failure to call the child's maternal grandmother as a witness. A party is entitled to a missing witness charge when the party establishes that an uncalled witness possessing information on a material issue would be expected to provide noncumulative testimony in favor of the opposing party and is under the control of and available to that party. The court sua sponte drew a negative inference based on the mother's failure to call the grandmother as a witness, and failed to advise the mother that it intended to do so. The mother, therefore, lacked the opportunity to explain her failure to call the grandmother as a witness, or to discuss whether the grandmother was even available to testify or under her control.
[9] In Matter of Spiegel v Spiegel, 68 A.D.3d 881, 889 N.Y.S.2d 488 (2d Dept., 2009) the Appellate Division held that the Support Magistrate properly declined to draw an adverse inference against the mother for her failure to produce her current child care worker to testify, as testimony from that witness would have been cumulative.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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