§ 10.08 LEARNED TREATISES

• Jurisdiction: North Carolina

§ 10.08 LEARNED TREATISES

[1] THE DOCTRINE

At common law, most jurisdictions permitted the opponent to use a learned text or article to cross-examine an expert witness to impeach the expert. The cross-examiner could confront the expert with a passage that contradicted something that the expert said on direct examination. However, the overwhelming majority of jurisdictions refused to allow an attorney to introduce a passage in a text or article as substantive evidence. For that matter, although a minority of jurisdictions allowed the substantive use of a text or article, even they narrowly limited the scope of the hearsay exception to publications dealing with "exact" sciences such as mathematics and "static" fields such as geography.

The drafters of the Federal Rules both embraced and expanded the scope of the exception. Rule 803(18) currently codifies a hearsay exception for [a] statement contained in a treatise, periodical, or pamphlet, if:

(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
(B) the publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice.

If admitted, the statement may be read into evidence but not received as an exhibit.

The original version of Rule 803(18) made it clear that the exception is not confined to texts and articles dealing with "exact" sciences or "static" disciplines; that version of the statute referred to publications "on a subject of history, medicine, or other science or art." The Advisory Committee Note accompanying the 2011 restyling of Rule 803 states that the changed wording was not intended "to change any result in any ruling on evidence admissibility."

While the drafters decided to broaden the scope of the exception, they appreciated the dangers that could arise if texts and articles are used too freely. One danger is that the jury might misinterpret the passage being quoted. After all, the jurors are not experts. For that reason, the rule provides that the passage may be admitted only while an expert is on the stand. The expert's live appearance enables the opponent to question the expert about the meaning of the passage. Another danger is that if the judge sent the text or article into the deliberation room, the jurors could focus on—and misinterpret—other passages. To eliminate that danger, the rule forbids physically submitting the...