C.r.e. 803(18): the Learned Treatise Exception to the Hearsay Rule
| Jurisdiction | Colorado,United States |
| Citation | Vol. 38 No. 3 Pg. 39 |
| Pages | 39 |
| Publication year | 2009 |
2009, March, Pg. 39. C.R.E. 803(18): The Learned Treatise Exception to the Hearsay Rule
March 2009
Vol. 38, No. 3 [Page 39]
Evidence articles are presented in a hypothetical format, addressing legal issues of particular import to trial lawyers. Readers who are interested in submitting an article should contact the Coordinating Editor.
Lawrence M. Zavadil, (303) 389-4644, lzavadil@jcfkk.com
About the Author
This article was written by Bradley S. Abramson of Thomas N. Scheffel & Associates, P.C., Denver, babramson@tnslaw.com.
Q: Under what circumstances may a "learned treatise" be introduced as substantive evidence under C.R.E. 803(18)?
A: For a learned treatise to be admissible as an exception to the hearsay rule and be introduced as substantive evidence under C.R.E. 803(18), the learned treatise must be qualified as authoritative by either an expert witness or judicial notice.
During cross-examination of defendant's medical expert witness, plaintiff's attorney brings a medical text to the attention of defendant's medical expert. The medical text was not referred to or relied on by defendant's medical expert in her report or testimony. Plaintiff's attorney reads a portion of the medical text to defendant's expert and asks defendant's expert whether she agrees with that part of the medical text read to her.
Defendant objects, but the court overrules the objection and allows plaintiff's attorney to use the medical text in cross-examining defendant's medical expert. Defendant's expert then testifies that she does not agree with what plaintiff's attorney read from the medical text. Plaintiff's attorney does not have any other expert witness testify concerning the medical text and does not formally attempt to introduce the medical text into evidence.
During closing argument, plaintiff's attorney argues that the portion of the medical text presented to defendant's expert witness constitutes independent evidence for the jury to consider, and that the information as presented in the medical text demonstrates that defendant was negligent in his medical treatment of plaintiff. Defendant's attorney objects and the judge sustains the objection, instructing the jury that it may not consider the medical text as substantive evidence against defendant.
C.R.E. 803(18) provides:
are admissible as an exception to the rule against hearsay (learned treatise exception). C.R.E. 803(18) goes on to provide that "[i]f admitted, the statements may be read into evidence and may be received as exhibits, as the court permits." F.R.E. 803(18) provides the same, except that the federal rule does not allow learned treatises to be received as exhibits. The federal rule only allows statements from learned treatises to be read into evidence.(fn1)[t]o the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice . . .
The basis for the learned treatise exception is that there is a presumptively high standard of accuracy engendered by various factors related to such treatises, including that they are written primarily and impartially for professionals; are subject to scrutiny and exposure for inaccuracy; and carry with them the author's reputation, which an author will be motivated to protect in all his or her professional writings.(fn2) The fact that learned treatises are written primarily...
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