Use of learned treatises on cross examination: practical considerations.

• Author: Trentalange, Mike
• Position: Florida

Trials are about the resolution of disputed facts. For that reason, witnesses generally are precluded from testifying at trial unless they have personal knowledge of the facts about which they are testifying. (1) A lay witness may testify in the form of opinion or inference only when the opinion or inference being offered is rationally based on his or her own perception and the witness cannot readily, and with equal accuracy, communicate his or her testimony to the trier of fact. (2) Additionally, a lay witness' opinion must not require specialized knowledge.

Expert Testimony

In Florida, the general prohibition against opinion testimony has one major exception: testimony by expert witnesses. Expert witnesses are permitted to testify on scientific, technical, or other specialized matters if their testimony will assist the jury in determining a fact in issue, provided the witness is qualified to do so by virtue of special knowledge, skill, experience, training, or education. (3)

Cross Examining Experts With a Learned Treatise

As is the case with every witness, an expert places his or her character for truthfulness in issue by testifying. The witness is subject to cross examination, what Dean Wigmore called "the greatest legal engine ever devised for the discovery of truth." (4)

Traditional cross examination methods include revealing the witness' bias, (5) showing that the witness has given inconsistent testimony or made inconsistent statements, (6) attacking the premise or the factual underpinnings of the witness' opinions, (7) showing that the witness is reputed to be untruthful, (8) or showing that the witness has been convicted of certain crimes. (9)

In addition to the usual modes of impeachment, an expert witness is subject to cross examination with authoritative literature. When a respected author or publication contradicts the testimony of an expert witness on a key point, it may seriously undermine the credibility of the expert. (10) Indeed, presenting an authoritative work to the jury and pointing out the conflict between the author's opinion and the testifying expert's opinion is often the closest a trial lawyer gets to the popular TV image of cross examination.

This fact has not been lost on expert witnesses, who generally are, after all, highly trained, educated, or experienced and have the ability to figure out what goes on in the courtroom. Not surprisingly, expert witnesses have become increasingly unwilling to recognize writings or authors as "authoritative." The reason is clear when one considers the language of ES. [section] 90.706:

90.706 Authoritativeness of literature for use in cross-examination.--Statements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing may be used in cross-examination of an expert witness if the expert witness recognizes the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative, or, notwithstanding nonrecognition by the expert witness, if the trial court finds the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative and relevant to the subject matter.

The rule clearly sets out several methods for establishing literature as authoritative, thereby paving the way for use in cross examination. (11) The first method of establishing a particular publication as authoritative (12) relies upon the witness to concede that a particular work is authoritative. This rarely happens. The questioning usually goes something like this:

Q: Dr. Jones, are you familiar...