Vol. 7, No. 6, Pg. 32. Unmined Gold in 803(18).

• Author: By the Hon. G. Ross Anderson Jr.

South Carolina Lawyer

1996.

Vol. 7, No. 6, Pg. 32.

Unmined Gold in 803(18)

32UNMINED GOLD IN 803(18)By the Hon. G. Ross Anderson Jr.Recently, the law of evidence in South Carolina received a facelift. In September of 1995, South Carolina essentially adopted the Federal Rules of Evidence as its own. Understandably, this act brought about substantial change in the law of evidence in South Carolina. Specifically, Rule 803(18) can and will have a dramatic effect on the use of learned treatises by trial lawyers. The purpose of this article is to make lawyers aware of the various ways in which they may take advantage of Rule 803(18).

The learned treatise exception to the hearsay rule has provided additional ammunition in the arsenal of the trial lawyer. Little known and little used is the fact that a single witness can now be transformed into three or four solid witnesses. As discussed below, this ability to exercise the learned treatise rule will be a powerful ally to the trial lawyer.

COMMON LAW

Before the adoption of the new rules of evidence, the use of a learned treatise under South Carolina law was severely limited. Traditionally, such material was permitted, if at all, only to impeach an expert witness on cross-examination and was not admissible as substantive evidence or direct proof. Strong, et al. 2 McCormick on Evidence§ 321 at 350 (4th ed. 1992). Therefore, it became generally accepted in the legal community that learned treatises could only be used on cross-examination.

While the use of a treatise on cross-examination became common throughout the county, the use of treatises in South Carolina was much more limited. Originally, a South Carolina statute provided that medical and scientific books were admissible only in proceedings concerning a question of insanity or the administration of poison. S.C. Code Ann. § 19-5-410.

In fact, it was not until 1973 that the Supreme Court of South Carolina permitted the use of a learned treatise for impeachment purposes on the cross-examination of all experts. In Baker v. Port City Steel Erectors, Inc., 261 S.C. 469, 200 S.E.2d 681 (1973), the court allowed the use of a textbook on cross-examination solely to test the reliability of a factor relied on by the expert in analyzing an accident. And, until now, the law in South Carolina has not recognized the use of a treatise on direct examination or as direct proof in a case. Roof v. Kimbrough, 297 S.C. 156, 375 S.E.2d 318 (Ct. App. 1988).

Thus, the statutory law of South Carolina originally allowed the use of medical books in cases involving questions of insanity or the administration of poison. While this view gradually and grudgingly expanded to allow the use of a learned treatise for the limited purpose of impeachment, South Carolina statutes never allowed a treatise to be used as direct proof or to accredit the testimony of an expert. However, with the adoption of the Federal Rules of Evidence in South Carolina, the prior statute has been

34 repealed and a dramatic and radical departure from the common law has arrived.

FEDERAL RULE OF EVIDENCE 803(18)

When offered to prove the truth of matters asserted in them, learned treatises are classic hearsay. Examples include...