Practice point: The charge instructs the jury that it may draw an
adverse inference based on a party's failure to call a witness who
normally would be expected to support that party's version of events. The preconditions for the charge, in both criminal and
civil trials, are: (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 party's favor; and (4) the witness is available to that
party.
Student note: The use of the missing witness' deposition testimony does not constitute a waiver of the
right to request a missing witness charge.
Case: Alli v. Full Serv. Auto Repair, LLC, NY Slip Op 03308 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: Denial of a motion for leave to renew.
