Posts by Michael J. Hutter:
In his Evidence column, Michael J. Hutter, a professor at Albany Law School, analyzes the Court of Appeals' decisions in 'Devito v. Feliciano,' which decided an issue involving the noncumulative testimony precondition for the missing witness charge, and 'People v. Thomas,' which addressed that precondition in the context of defense counsel's missing witness argument in summation which was made in the absence of a missing witness charge.
In his Evidence column, Michael J. Hutter, a professor at Albany Law School, writes that a threshold question in applying 'Frye' is whether the principle or procedure that would be the subject of an expert's testimony is "scientific" and if so, whether it is "novel." In 'People v. Oddone,' the Court of Appeals addressed the first part of this question in the context of an expert opinion based on the expert's personal experience.
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.
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.
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.
In his Evidence column, Michael J. Hutter, a professor at Albany Law School, discusses two Appellate Division decisions that again raise significant practical concerns as to the nature of the proof necessary to establish the requisite authority to speak, and suggest the time has come to abandon New York's restrictive rule and adopt Federal Rule of Evidence 801(d)(2)(D).
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.
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.
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.
In his Evidence column, Michael J. Hutter, a professor at Albany Law School, discusses whether an inadvertent disclosure as distinct from an intentional and voluntary disclosure effects a waiver of the privilege with respect to the disclosed matter.
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).
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.