Michael J. Hutter

For the past 30 years the New York State Judicial Institute has conducted in the first week of January a four-day training program for newly elected state court judges designed to prepare them for their new position as they take the bench. A veritable “judicial boot camp,” as described by a New York Times reporter (Kilgannon, “Legal Boot Camp for New Judges in New York,” New York Times, Jan. 4, 2018), the program covers a wide range of topics from control of the courtroom and judicial ethics to areas of substantive and procedural law.

I have been privileged to make presentations on New York evidence at these programs. This year my presentation was in the form of an Evidence Quiz, providing the judges with 20 questions derived from appellate and trial court decisions. Each one asks whether the evidence described in the question is admissible. I then review with them the “correct” or “best answer,” tabulating and displaying electronically their answers. I am pleased to report that the judges did quite well. I mention this because I am not known to be an “easy A” or prone to give out routinely what my college era would call a “Gentleman’s C.” This group of judges have a solid grasp of evidentiary rules which will only get better through the years.

This column will consist verbatim of a Quiz I gave to the judges, and answers, e.g., citations to the decisions from which the question is derived, are provided. Take a break and see if you know evidence as well as the judges before whom you will be appearing.

Quiz

(1) In a personal injury action arising out of a slip and fall in the parking lot at defendant’s automobile dealership, the defendant’s general manager, called as a witness by plaintiff, is asked whether there was ice covering the parking lot on the day the accident is alleged to have occurred. He says he “cannot recall.” Plaintiff seeks to refresh his recollection by having him listen to the tape of a 911 call he made that day wherein he reported that a woman slipped on ice which “covered the parking lot.” The 911 tape is not separately admissible. Defendant objects. Ruling?

(2) In a theft prosecution, police officer testifies that he observed defendant in a subway car lifting the wallet from the back pocket of the person standing in front of him. Defendant has denied the charge but admits that due to the crowded subway car his left hand was pressed against the backside of the person standing in front of him. Defendant’s attorney seeks to question the officer about allegations of prior misconduct, e.g., false arrest and an illegal strip search, made against him by a person in a civil rights action pending against him in federal court. The prosecutor objects. Ruling?

(3) Plaintiff claims he was fired without cause in a breach of employment contract action commenced against defendant, his former employer. Defendant asserts plaintiff was properly dismissed because in violation of the terms of his employment contract he was accessing while at work pornographic websites on his office PC, which defendant provided him to him. Plaintiff denies the charge. At trial, defendant offers into evidence an email sent by plaintiff to his attorney using the PC with his office email address wherein he asks his attorney whether he (plaintiff) can be fired because he (plaintiff) has been accessing while at work numerous pornographic websites. Defendant’s HR person found the email on plaintiff’s PC’s hard drive during a routine check of its employees’ PCs, as permitted by defendant’s HR policies which are distributed to all employees. Plaintiff objects on the ground the email is a privileged communication. Ruling?

(4) Defendant was charged with constructive possession of drugs in an apartment. His wife testified that she and defendant lived elsewhere at the time of the seizure. She left the stand. The People then procure her employment application from her employer. Her W-4 completed a week before the seizure showed the address where the drugs were found. When it was offered, the defense objected that it was inadmissible as a prior inconsistent statement because the witness had not been confronted with it. The People agree, but argue it is admissible as a business record to prove its truth and rebut the wife’s testimony about where she lived. Defendant objects. Ruling?

(5) Plaintiff has sued defendant hospital alleging that Nance, a nurse employed by the hospital, failed to give her medication during her hospitalization as instructed by her physician. At trial, the hospital has properly introduced plaintiff’s hospital chart which contains entries by Nance that she complied with those instructions. Nance is unavailable to be called as a witness. On rebuttal, plaintiff calls as a witness Warren, who will testify that Nance told him (Warren) that he (Nance) hated plaintiff because plaintiff terminated the employment of Nance’s father at plaintiff’s company. The hospital objects. Ruling?

(6) In a criminal prosecution for burglary, the prosecution offers into evidence a fingerprint comparison report prepared by a fingerprint examiner wherein he concludes that the latent fingerprint taken from the crime scene matched with “100 percent certainty” defendant’s fingerprint card. The examiner does not testify. Defendant objects. Ruling?

(7) In a DWI prosecution, the prosecutor offers into evidence the routinely-prepared certificates prepared by a forensics technician reporting the result of calibration tests and simulator solution tests which are used to establish the accuracy of the breathalyzer test. The test recorded defendant’s blood alcohol level at .23 percent. Defendant objects. Ruling?

(8) Plaintiff slipped on a spill on the floor of defendant’s grocery store near the produce section. At trial to establish that defendant had knowledge of the spill, plaintiff seeks to testify that after she fell a store employee came up to her and said: “I’m sorry. I was instructed by my boss two hours ago to clean up the spill, but I never got around to doing so.” Defendant objects. Ruling?

(9) In a personal injury action arising out of an automobile accident, defendant offers into evidence the police accident report prepared by the responding police officer wherein the officer records a statement made by a claimed eyewitness to the accident that she (the eyewitness) “saw plaintiff run the red light.” Plaintiff objects. Ruling?

(10) In a personal injury action arising out of an automobile accident, plaintiff offers into evidence the police accident report prepared by the responding police officer wherein the officer records a statement made by the defendant that he (the defendant) “ran the red light.” Defendant objects. Ruling?

(11) In a wrongful death action, decedent’s husband seeks to testify that during the seven days decedent was in the hospital and he was with her decedent continuously complained to him about the intense pain in her abdomen she was experiencing. Defendant objects. What ruling?

(12) In a personal injury action, plaintiff alleges a police officer used excessive force in a chase incident to his own arrest by pushing him off a fence. At trial, the officer offers into evidence certain portions of plaintiff’s medical records which refer to plaintiff’s injuries as having been caused by his “jump” from the fence. Plaintiff objects. Ruling?

(13) In a personal injury action, plaintiff alleges that he sustained injuries when he fell down a flight of stairs in defendant’s home as a result of the stairs being in a state of disrepair. At trial, defendant offers into evidence certain portions of plaintiff’s hospital ER records wherein it is recorded that plaintiff told the admitting physician that he fell down the flight of stairs because he was “in a rush” and he “missed a step.” Plaintiff objects. Ruling?

(14) In a criminal prosecution for assault in the first degree arising out of an incident involving a five-year old child, prosecution seeks to elicit testimony from the pediatrician treating the child that the child told her in response to her questioning about what happened that the defendant placed him in a bathtub with hot water and would not let him out. Defendant objects. Ruling?

(15) In this motor vehicle accident action, defendant’s attorney seeks to question plaintiff about information in her federal tax returns for the past three years. The claim is that plaintiff improperly filed as head of household in order to receive a tax credit to which she was not entitled. The attorney has the tax returns and states that he will then offer them into evidence, and as well call an accountant who will testify that plaintiff’s filing constitutes “tax fraud.” Plaintiff contends that this proffer constitutes improper impeachment. Ruling?

(16) In a proceeding to revoke a Town issued permit allowing a music festival to be held subject to compliance with specified conditions, the Town offers into evidence a printout from the festival’s owner’s website wherein numerous activities are promoted. These activities violate the permit’s condition. The owner objects. Ruling?

(17) In this theft prosecution, the People allege that defendant stole $1,000.00 from complainant. Defendant denies the theft. At trial the complainant testifies about the theft. On defendant’s case, Warren is called to testify that complainant has a bad reputation for untruthfulness in the accounting firm she is employed by. The office has twenty (20) employees, and Warren is one of the employees. The prosecution objects. Ruling?

(18) Plaintiff has commenced a personal injury action against defendant, alleging that defendant created an icy condition on the sidewalk in front of defendant’s home upon which plaintiff slipped and fell. At trial plaintiff testifies as to his trip and fall. Defendant seeks to impeach plaintiff by questioning him regarding his conviction for statutory rape, an incident that occurred 10 years ago, when plaintiff was fifteen years of age and the girl was fourteen years of age. The intercourse was consensual. Defendant pled guilty and was sentenced to a five-year term. Since his release, defendant has been gainfully employed and has kept out of trouble. Plaintiff objects to the proposed impeachment. Ruling?

(19) In a Dram-Shop action against a convenience store arising out of the sale of alcohol to an allegedly visibly intoxicated person, the store’s sales clerk testifies at trial that the person did not show any signs of intoxication when he purchased the alcohol. During cross-examination, plaintiff offers into evidence a sworn supporting deposition given to a State Trooper investigating the accident involving the person shortly after the accident and sale wherein the sales clerk avers that the person exhibited all of the telltale signs of being intoxicated. The deposition is offered to establish that the person was visibly intoxicated. The store objects. Ruling?

(20) In a custody dispute, the child’s mother seeks custody of the child and a denial of visitation rights to the child’s father. At trial the mother offers into evidence a printout from the family computer of its “history” which shows viewing of hard-core child pornography sites at a time the father was alone with the child at home. The father objects. Ruling?

Answers

(1) Overruled. Seaberg v. NorthShore Lincoln-Mercury, Inc., 85 A.D.3d 1148 (2d Dep’t 2011). Tape must be played outside the presence of the jury.

(2) Overruled. People v. Smith, 27 N.Y.3d 652 (2016). Subject to court’s determination as to whether its asking raises issues of unfair prejudice.

(3) Overruled. Peerenboom v. Marvel Ent., 148 A.D.3d 531 (1st Dept. 2017).

(4) Overruled. People v. McKissick, 281 A.D.2d 212 (1st Dep’t 2001).

(5) Overruled. People v. Fratello, 92 N.Y.2d 565 (1998). 

(6) Sustained. People v. Rawlins, 10 N.Y.3d 136 (2008).

(7) Overruled. People v. Pealer, 20 N.Y.3d 447 (2013).

(8) Sustained. Tyrell v. Wal-Mart Stores, 97 N.Y.2d 650 (2001).

(9) Sustained. Johnson v. Lutz, 253 N.Y. 124 (1930).

(10) Overruled. Jackson v. Donien Trust, 103 A.D.3d 851 (2d Dep’t 2013).

(11) Overruled. Taft v. Transit Auth., 193 A.D.2d 503 (1st Dep’t 1993).

(12) Sustained. Benavides v. City of New York, 115 A.D.3d 518 (1st Dep’t 2014). Court noted there was no evidence that plaintiff’s treating physicians needed to know whether plaintiff jumped or was pushed off the fence in order for the physicians to determine what medical testing plaintiff needed.

(13) Sustained if in the Second Department (Merriman v. Integrated Building Controls, 84 A.D.3d 897 (2d Dep’t 2011)), but overruled if in First Department. (Grant v. New York City Transit Auth., 105 A.D.2d 445 (1st Dep’t 2013)). Dispute is whether plaintiff’s statement, clearly an admission, needs to first be shown that it is germane to treatment.

(14) Overruled. People v. Duhs, 16 N.Y.3d 405 (2011).

(15) Overruled. Young v. Lacy, 120 A.D.3d 1561 (4th Dep’t 2014). The tax returns, however, may not be admitted.

(16) Overruled. Town of Bethel v. Howard, 95 A.D.3d 1489 (3d Dep’t 2012).

(17) Overruled. People v. Fernandez, 17 N.Y.3d 70 (2011).

(18) Sustained. Tripp v. Williams, 39 Misc.3d 318 (Sup. Ct. Kings Co. 2013).

(19) Overruled. Kaufman v. Quickway, 14 N.Y.3d 907 (2010).

(20) Overruled. People v. Stultz, 284 A.D.2d 350 (2d Dep’t 2001) (caller ID); U.S. v. Hamilton, 413 F.3d 1138 (10th Cir. 2005) (computer generated “header” information).

Michael J. Hutter is a Professor of Law at Albany Law School and is Special Counsel to Powers & Santola. He is currently serving as the Reporter to the Judicial Advisory Committee on Evidence, which is charged with compiling a Guide to New York’s existing law of evidence.