Michael J Hutter

December 05, 2013 | New York Law Journal

In his Evidence column, Albany Law School professor Michael J. Hutter writes: While a recent opinion from the Court of Appeals involved the presentation of expert opinion and its basis grounded in hearsay in the context of its admissibility against a due process challenge in a Mental Hygiene Law Article 10 proceeding, its discussion is clearly applicable to all trials where admissibility of expert opinion is predicated under New York common law.

By Michael J. Hutter

14 minute read

February 07, 2013 | New York Law Journal

In his Evidence column, Albany Law School professor Michael J. Hutter writes that while the Court of Appeals' 2012 decisions involving an application of the 'Molineux' rule may be viewed by some as nothing more than ad hoc decision-making which provides no guidance to, or at worst obfuscates a 'Molineux' analysis, when the decisions are read together, a general framework governing the application of 'Molineux' to a proffer of other crimes evidence is suggested.

By Michael J. Hutter

14 minute read

July 30, 2013 | New York Law Journal

In his Evidence column, Michael J. Hutter, a professor at Albany Law School, analyzes two recent rulings that addressed the limits and the exercise of a trial court's discretion to exclude or limit proof of a conviction that is otherwise admissible.

By Michael J. Hutter

13 minute read

April 04, 2013 | New York Law Journal

In his Evidence column, Albany Law School professor Michael J. Hutter writes: The Court of Appeals in 'People v. Pealer' could have embarked on a course lamenting the lack of guidance from and uncertainty in the Supreme Court decisions. Instead, the court commendably reached its own conclusions as to the teachings of the Supreme Court cases, and set up an analytical framework based on those conclusions to determine the testimonial/nontestimonial issue.

By Michael J. Hutter

13 minute read

August 02, 2012 | New York Law Journal

In his Evidence column, Michael J. Hutter, a professor at Albany Law School, writes that, as attorneys and their clients are painfully aware, much discovery in New York state and federal courts now involves the retrieval and review of electronically stored information because it may involve matter that is potentially relevant pursuant to CPLR 3101(a) or FRCP 26(b).

By Michael J. Hutter

14 minute read

October 03, 2013 | New York Law Journal

In his Evidence column, Michael J. Hutter, a professor at Albany Law School and special counsel to Powers & Santola, writes that the "missing witness" rule is routinely invoked where the absent witness is a treating or examining physician, and rarely leads to a probing analysis as to whether it is appropriate to invoke the rule or how the elements for the invocation of the rule are to be applied and considered when a physician is involved. A thoughtful and thorough opinion from the Second Department has provided much needed guidance.

By Michael J. Hutter

14 minute read

December 01, 2011 | New York Law Journal

In his Evidence column, Michael J. Hutter, a professor at Albany Law School and special counsel to Powers & Santola, writes that recently, in a thoughtful opinion authored by Justice Peter Skelos, the Second Department held that the conventional wisdom, that compensation to fact witnesses is prohibited beyond the minimal "attendence fees" permitted by CPLR 8001(a), is not at all reflective of the current legal landscape.

By Michael J. Hutter

12 minute read

December 06, 2012 | New York Law Journal

In his Evidence column, Albany Law School professor Michael J. Hutter reviews recent decisions that discussed whether the refreshing recollection doctrine applies to sound recordings sought to be used at trial, and, if so, what adjustments to its basic foundation elements are necessary; whether the doctrine applies when a witness uses a writing in preparation for deposition; and whether the use of a privileged document used by a witness to refresh recollection prior to a deposition effects a waiver of the privilege.

By Michael J. Hutter

13 minute read

February 02, 2012 | New York Law Journal

In his Evidence column, Michael J. Hutter, a professor at Albany Law School and special counsel to Powers & Santola, draws upon the sparse case law and prior commentary to suggest an approach for determining the admissibility in civil actions in New York state courts of reports detailing the results of an investigation after an accident or natural disaster as against a hearsay objection.

By Michael J. Hutter

13 minute read

June 07, 2012 | New York Law Journal

In his Evidence column, Michael J. Hutter, a professor at Albany Law School and special counsel to Powers & Santola, analyzes the issue of the admissibility of an unaffirmed medical report on a summary judgment motion or at trial when it is contrary to the litigation position taken by the party who arranged or asked for the report.

By Michael J. Hutter

16 minute read