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A Missing Witness Charge

Discussion in 'News & Current Events' started by Salty, Mar 15, 2022.

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  1. Salty

    Salty 20,000 Posts Club
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    In Syracuse, NY a trial just ended for the murder of a wife - the accused is her husband - a MD.
    The death occurred in 2012., and he was convicted shortly thereafter. However the defense
    found out that one juror, during the trial, sent and received hundreds of texts - many relating
    to the trial. Recently, a State judge voided out the first trial and ordered a new one.

    The Second trial just ended. But the DA has requested "A Missing Witness Charge"
    The Defense did NOT call one witness - the only person who was in the house (other than
    the defendant) at the time of the death.

    The law allows for the jury to consider "negative inference"
    The DA contends that witness would have been damaging to the defense.

    Here is the local cable company news station link on the story:

    Neulander murder trial: Jury dismissed until closing arguments Wednesday


    Apparently the purpose of the "A Missing Witness Charge" was for the jury to consider the lack of
    testimony of a spousal abuse when the victim would not testify.

    Memorandum on Missing Witness Charge | Pace Law School

    So what is your thoughts about "A Missing Witness Charge"
     
    #1 Salty, Mar 15, 2022
  2. canadyjd

    canadyjd Well-Known Member

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    I think that particular part of the law is fascinating. I’ve never heard of it before. So the PA can only ask for it if the defense presents no witnesses?

    How do they know the daughter was in the house? Didn’t police get a statement from her?

    So, the judge can instruct the jury they can make a negative inference toward the defendant if he doesn’t call an available witness? Wow!!!

    Very interesting.

    peace to you
     
    #2 canadyjd, Mar 15, 2022
  3. Salty

    Salty 20,000 Posts Club
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    I had not heard of it myself until I saw it in the paper today.


    I understand she did testify in the original trial.- ten years ago.


    yes he can - but I would assume it would have to be requested by the DA.
     
    #3 Salty, Mar 15, 2022
  4. canadyjd

    canadyjd Well-Known Member

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    Why didn’t the prosecutor call her? Please keep us updated. I’d like to see the outcome.

    peace to you
     
    #4 canadyjd, Mar 15, 2022
  5. Salty

    Salty 20,000 Posts Club
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    Any lawyers on here that could help out?
     
    #5 Salty, Mar 15, 2022
    • Useful Useful x 1
  6. canadyjd

    canadyjd Well-Known Member

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    It may be specific to NY Law.

    peace to you
     
    #6 canadyjd, Mar 15, 2022
    • Agree Agree x 1
  7. Van

    Van Well-Known Member
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    Yes, it appears our country has laws on the books that do not support the spirit of our Constitution. Half the names of Army soldiers on the Viet Nam Memorial Wall were conscripts, those whose right to purse happiness, or enjoy liberty, and to life were taken from them. Another dubious law is the felony murder law where if a murder occurs during the commission of a felony, all those involved can be convicted of murder, even though they did not even witness the murder. This is akin to punishing the son for the sins of the father.
     
    #7 Van, Mar 16, 2022
  8. Salty

    Salty 20,000 Posts Club
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    Interesting subject - so not to hijack - I have started this thread:

    Facts of the Vietnam War


    And now back to "A Missing Witness Charge"
     
    #8 Salty, Mar 16, 2022
  9. Van

    Van Well-Known Member
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    Yes, it appears our country has laws on the books that do not support the spirit of our Constitution. Another dubious law is the felony murder law where if a murder occurs during the commission of a felony, all those involved can be convicted of murder, even though they did not even witness the murder. This is akin to punishing the son for the sins of the father. Other laws that violate the spirit of our Constitution have been ruled as off topic.
     
    #9 Van, Mar 16, 2022
  10. Salty

    Salty 20,000 Posts Club
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    This post is basically nothing more than a repeat of post # 9
    This Post has NOTHING to do with the OP - Lets get back ON TOPIC!
     
    #10 Salty, Mar 16, 2022
    • Agree Agree x 1
  11. canadyjd

    canadyjd Well-Known Member

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    Do you know how the daughter testified in the last trial?

    peace to you
     
    #11 canadyjd, Mar 16, 2022
  12. Reynolds

    Reynolds Well-Known Member
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    I do not think a missing witness charge should be legal.
     
    #12 Reynolds, Mar 16, 2022
  13. canadyjd

    canadyjd Well-Known Member

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    It does seem biased to claim a witness not called should be a negative inference toward the defendant.

    If we don’t know why the witness didn’t testify, and there could many reasons, there seems to be an unfairness to this law.

    peace to you
     
    #13 canadyjd, Mar 16, 2022
  14. Salty

    Salty 20,000 Posts Club
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    not off hand - will see what I can find
     
    #14 Salty, Mar 16, 2022
  15. canadyjd

    canadyjd Well-Known Member

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    Thanks

    peace to you
     
    #15 canadyjd, Mar 16, 2022
  16. Salty

    Salty 20,000 Posts Club
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    News was just on - The DA was asked why he did not call that witness -
    he said he cannot answer until after the trial is over.
     
    #16 Salty, Mar 16, 2022
  17. canadyjd

    canadyjd Well-Known Member

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    Just more curious, isn’t it? So let’s think a bit, what could be the reason for the DA to not call a witness?

    a. She refuses to answer questions.
    b. She is unable to answer questions (medical/mental) issues.
    c. She would answer questions, but it wouldn’t be helpful to the prosecution (most likely imo)
    d. The prosecutor knows her testimony will hurt his case, so he took the chance the defense wouldn’t call the daughter and traumatize her again, and then pushed an arcane, rarely used section of the law to get a negative inference by the daughter not testifying.

    Why would the defense not call this witness?

    a. Her testimony would hurt the defendant
    b. Her father believes she has suffered enough with the death of her mother and doesn’t want to traumatize her again
    c. She refuses because she knows he did it
    d. She refuses because she thinks he did it but isn’t sure and doesn’t want to help him.
    e. She made an agreement with the prosecutor to not testify, so he could push an arcane law to get a negative inference by the daughter not testifying.

    Perry Mason where are you?

    I’d settle for Matlock.

    peace to you
     
    #17 canadyjd, Mar 16, 2022
  18. Salty

    Salty 20,000 Posts Club
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    From what I understand - that was probably the reason

    William Fitzpatrick has been county DA since 1992
     
    #18 Salty, Mar 16, 2022
  19. canadyjd

    canadyjd Well-Known Member

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    DA for 30 years? Are they elected or appointed?

    peace to you
     
    #19 canadyjd, Mar 16, 2022
  20. Salty

    Salty 20,000 Posts Club
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    They are elected to 4 year terms - he has been elected 8 times - and from what I understand - he has won election 8 times, and only had a opponent twice.
    The county is heavily Republican.

    There was one controversial election. Shortly after he won election - he announced his retirement. But stayed on the job. So he could receive his retirement pay in addition to his DA pay. ----BUT ---https://www.syracuse.com/news/2018/02/da_fitzpatrick_ny_state_wont_let_me_collect_pension_and_pay_yet.html
     
    #20 Salty, Mar 16, 2022
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