§ 33.16 Learned Treatises: FRE 803(18)

• Jurisdiction: United States

§ 33.16 Learned Treatises: FRE 803(18)

Learned treatises were admissible at common law but only for the impeachment of experts.¹⁷⁴ Rule 803(18) changes this result, making the treatise admissible as substantive evidence, not merely for credibility. According to the federal drafters, the "hearsay objection must be regarded as unimpressive when directed against treatises since a high standard of accuracy is engendered by various factors: the treatise is written primarily and impartially for professionals, subject to scrutiny and exposure for inaccuracy, with the reputation of the writer at stake."¹⁷⁵

The common law cases divided over the impeachment requirement—i.e., whether the expert had to rely on the treatise in arriving at her opinion or whether recognition of the treatise as an authoritative text by the expert was sufficient even in the absence of reliance.¹⁷⁶ Experts, of course, know of the rule and tailor their testimony accordingly—i.e., not recognizing any text as authoritative. To avoid this tactic, Rule 803(18) permits the authoritativeness of the treatise to be established by another expert or by judicial notice (e.g., judicially noticing Gray's Anatomy).

Limitations. Two limitations appear in the rule. First, a treatise may be used substantively only when an expert is on the stand.¹⁷⁷ This requirement provides an important safeguard because it ensures that a knowledgeable person is available "to explain and assist in the application of the treatise."¹⁷⁸ Second, the treatise may be read to the jury but not received as an exhibit, thus precluding the treatises's misuse in the jury room.¹⁷⁹

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Notes:

^[174] Some jurisdictions still follow the traditional rule. E.g., Mich. R. Evid. 707 (treatises "admissible for impeachment purposes only").

^[175] Fed. R. Evid. 803 advisory committee's note.

^[176] See id. ("In all jurisdictions an expert may be impeached with a learned treatise. There is, however, disagreement as to the conditions under which a treatise may be used for this purpose. Some jurisdictions allow this method of impeachment only when the expert relies on the treatise in reaching her opinion. . . . Other jurisdictions permit impeachment if the expert recognizes the treatise as an authoritative work, even though the expert did not rely on it. Still other jurisdictions permit impeachment if the treatise is established as a recognized authority by any means, including the testimony of other experts or by judicial notice.").

^[177] See ...