Law School Case Brief
People v. Goetz - 135 Misc. 2d 888 (N.Y. Sup. Ct. 1987)
Once a defendant establishes a right to the missing witness charge, the burden shifts to the prosecution to account for the absence of the witness or to demonstrate that the charge would be inappropriate.
Defendant Bernhard Goetz was charged with attempted murder and other felonies based on his alleged shooting of four youths on a subway. At trial in New York state court, one of the prosecution's complaining witnesses had invoked his Fifth Amendment privilege when called to testify because the prosecution refused to grant the witness immunity. Thereafter, Goetz declined to call that same youth as a witness to testify at trial and later filed a motion for a "missing witness" or "unfavorable inference" jury charge. The prosecution opposed the charge.
Was there sufficient ground to grant Goetz's request for a "missing witness" jury charge?
The court granted Goetz's request for a "missing witness" charge. The court found that: (1) the witness-youth was clearly in a position to give material evidence that would reasonably be expected to favor the prosecution because the youth was a complaining witness against Goetz; (2) the youth's evidence was noncumulative as demonstrated by pretrial and other statements; (3) the youth was physically available to testify and was properly considered under the control of the prosecution considering his probable testimony in the prosecution's favor, and; (4) the prosecution's failure to grant the witness immunity was the product of trial strategy and, as such, was insufficient to carry their burden of showing that the requested charge would be inappropriate.
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