Michael J Hutter

December 06, 2017 | New York Law Journal

Proving a witness' bad character for truthfulness is a basic impeaching strategy. Evidence columnist Michael J. Hutter discusses one impeachment method: use of a character witness who testifies that the witness has a bad reputation for truthfulness.

By Michael J. Hutter

22 minute read

October 04, 2017 | New York Law Journal

In his Evidence column, Michael J. Hutter continues his discussion of 2016-2017 evidence decisions which were important due to their practical impact but which might be overlooked by the bench and bar due to their less-heralded nature.

By Michael J. Hutter

12 minute read

August 02, 2017 | New York Law Journal

Evidence columnist Michael J. Hutter takes a look at some of the less-heralded decisions from Court of Appeals and the four Appellate Division departments that will have a practical impact upon the trial of civil and criminal cases.

By Michael J. Hutter

26 minute read

May 31, 2017 | New York Law Journal

Michael J. Hutter, in his Evidence column, analyzes a recent First Department decision that held an employee has no expectation of confidentiality, and therefore no privilege protection (attorney-client or spousal), when using an employer's monitored email system, provided the employee was adequately warned of such monitoring. However, attorney work product protection may still be available for such emails.

By Michael J. Hutter

24 minute read

April 05, 2017 | New York Law Journal

In his Evidence column, Michael J. Hutter analyzes an Court of Appeals decision that is instructive on what is necessary to show a defendant's silence or evasive responses to an accusation are considered assent to the statement, thereby placing it within the adoptive admissions exception to the hearsay rule.

By Michael J. Hutter

21 minute read

February 01, 2017 | New York Law Journal

In his Evidence column, Michael J. Hutter writes: Court of Appeals Judge Stein's conclusion, and her analysis in support, that the Sprint subscriber information offered in a burglary and robbery trial to establish phone calls between the defendant and an accomplice was not barred by the hearsay rule is certainly valuable on that difficult issue. The true value of her opinion, however, lies in how she reached that admissibility conclusion in the context of the offered evidence, the cell phone records, which involved two out-of-court statements.

By Michael J. Hutter

19 minute read

November 30, 2016 | New York Law Journal

In his Evidence column, Michael J. Hutter discusses 'People v. Smith', in which the Court of Appeals provided clear guidance to the bench and bar as to how the "bad acts" impeachment rule is to be applied by the trial court. That rule emerged from a long-held belief of the New York courts is that witnesses "whose lives indicate an abandonment or lack of moral principles, and show them to be lewd and debased characters, void of shame or decency, have not usually a great respect for the truth, or the sanctity of an oath."

By Michael J. Hutter

18 minute read

October 04, 2016 | New York Law Journal

Evidence columnist Michael J. Hutter discusses the significance of 'Stock v. Schnader Harrison Segal & Lewis', in which the First Department addressed the issue of whether attorneys who have sought the advice of their law firm's in-house general counsel on their ethical obligations in representing a then-current firm client may invoke the attorney-client privilege to resist the client's demand for the disclosure of communications seeking or giving such advice. In the current legal environment of exacting disclosure obligations, the court created, in essence, an intra-law firm privilege.

By Michael J. Hutter

14 minute read

August 01, 2016 | New York Law Journal

In his Evidence column, Michael J. Hutter discusses the Court of Appeals' holding in 'Ambac Assurance Corp. v. Countrywide Home Loans,' which, he writes, "rejected substantial contrary precedent in a persuasive and forceful manner such that it may well serve as the intellectual leadership for courts nationally which will be addressing the issue for the first time or revisiting it."

By Michael J. Hutter

23 minute read

June 02, 2016 | New York Law Journal

In his Evidence column, Michael J. Hutter writes: While a review of cases over the past 20 years reveals that New York courts, following the lead of the federal courts, are taking judicial notice of facts from websites, the cases do not set forth any analytical framework for determining when judicial notice is or is not appropriate. That absence s troubling as there is now uncertainty as to when a New York court will take judicial notice of a website-mentioned fact, and the distinct possibility of "facts" being noticed when they should not be.

By Michael J. Hutter

12 minute read