Missing Witness Charge Allowed Where Defense Does Not Call Witness

In Devito v. Feliciano, the Court of Appeals has clarified what is considered cumulative testimony when deciding to give a missing witness charge. The Court of Appeals held that testimony is cumulative "only when it is cumulative of testimony or other evidence favoring the party controlling the witness." Thus, the Court rejected the trial court's reasoning that testimony would be "cumulative of the opposing witness's testimony."  The Court then granted a new trial because it was unable to conclude that the error was harmless.