Hearsay and circumstances of its admissibility - Learned treatises

Learning Outcomes

After reading this article, you will understand when statements from learned treatises are admissible under the hearsay rule on the MBE. You will be able to identify the requirements for introducing learned treatises as substantive evidence, explain how they may be used with expert witnesses, and distinguish between their use for impeachment and as direct proof. You will also be able to apply these principles to MBE-style questions.

MBE Syllabus

For MBE, you are required to understand the rules governing the admissibility of learned treatises as hearsay exceptions. This includes:

• The definition and scope of learned treatises.
• The requirements for admitting learned treatises as substantive evidence.
• The proper use of learned treatises with expert witnesses.
• The distinction between using learned treatises for impeachment and as direct evidence.
• The limitations and procedures for reading learned treatises into evidence.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is required for a learned treatise to be admissible as substantive evidence under the Federal Rules of Evidence?
   1. The treatise must be published within the last five years.
   2. The treatise must be established as a reliable authority by expert testimony, admission, or judicial notice.
   3. The treatise must be introduced by the judge.
   4. The treatise must be physically given to the jury as an exhibit.
2. In a federal trial, when may statements from a learned treatise be read into evidence?
   1. Only if the expert on the stand is the author of the treatise.
   2. Only if the expert relied on the treatise during direct examination or it is called to their attention on cross-examination.
   3. Only if the opposing party consents.
   4. Only if the treatise is a government publication.
3. What is the primary limitation on the use of learned treatises as evidence under the hearsay exception?
   1. The treatise may not be used to impeach an expert.
   2. The treatise may only be read into evidence and not received as an exhibit.
   3. The treatise must be written by a living author.
   4. The treatise may only be referenced in closing argument.

Introduction

Learned treatises are a recognized exception to the hearsay rule on the MBE. They allow authoritative writings to be used as substantive evidence in court, but only under specific conditions. Understanding when and how learned treatises may be used is essential for answering MBE Evidence questions correctly. This article explains the requirements for admissibility, the procedures for use with expert witnesses, and the limitations imposed by the rules.

What Is a Learned Treatise?

A learned treatise is a published work recognized as a reliable authority in a particular field, such as medicine, science, or history. Treatises are often used in litigation to support or challenge expert testimony.

Key Term: Learned Treatise A published work recognized as a reliable authority in a field, used as evidence to support or challenge expert testimony.

The Hearsay Exception for Learned Treatises

Under the Federal Rules of Evidence, statements from learned treatises are generally hearsay. However, there is a specific exception that allows their use as substantive evidence if certain requirements are met.

Key Term: Hearsay Exception for Learned Treatises A rule permitting statements from reliable treatises to be read into evidence for their truth when used with expert testimony, subject to specific conditions.

Requirements for Admissibility

For a learned treatise to be admitted as substantive evidence:

• The treatise must be established as a reliable authority by expert testimony, admission, or judicial notice.
• The treatise must be relied upon by an expert witness during direct examination, or called to the expert's attention on cross-examination.
• The relevant portion of the treatise may be read into evidence, but the treatise itself is not received as an exhibit for the jury.

Key Term: Reliable Authority A treatise or publication recognized as trustworthy in its field, as shown by expert testimony, admission, or judicial notice.

Use with Expert Witnesses

A learned treatise may only be used in conjunction with expert testimony. The expert must either rely on the treatise during direct examination or have it called to their attention during cross-examination. The treatise cannot be used as substantive evidence if no expert is on the stand.

Key Term: Expert Testimony Evidence given by a qualified specialist in a field, often required for the use of learned treatises as substantive evidence.

Reading into Evidence

The contents of a learned treatise may be read into evidence, but the treatise itself is not given to the jury as an exhibit. This rule prevents undue emphasis on the treatise and ensures the jury focuses on the testimony and the relevant excerpt.

Impeachment vs. Substantive Evidence

Learned treatises may be used for two purposes:

• Impeachment: To challenge the credibility of an expert witness by showing that the treatise contradicts the expert's opinion.
• Substantive Evidence: To prove the truth of the matter asserted, but only if the treatise is established as a reliable authority and used with expert testimony as described above.

Worked Example 1.1

A plaintiff sues a hospital for medical malpractice. The plaintiff's expert testifies that the standard of care required a specific procedure. On cross-examination, the defense attorney refers to a passage in a well-known medical textbook that states the procedure is not required. The expert admits the textbook is a reliable authority.

Answer: The relevant passage from the textbook may be read into evidence as substantive proof of the standard of care, because the treatise is established as a reliable authority and is called to the expert's attention during cross-examination. The treatise itself is not given to the jury.

Worked Example 1.2

In a product liability case, the defendant's expert testifies that a chemical is safe. On cross-examination, the plaintiff's attorney refers to a scientific article recognized as authoritative in the field, which states the chemical is hazardous. The expert denies relying on the article but admits it is a standard reference.

Answer: The article may be read into evidence for its truth, since it is established as a reliable authority and is called to the expert's attention during cross-examination.

Exam Warning

Be careful: A learned treatise cannot be used as substantive evidence unless an expert is on the stand and the treatise is established as a reliable authority. If no expert is testifying, the treatise is inadmissible for its truth.

Revision Tip

Remember: The treatise may only be read to the jury, not submitted as an exhibit. Focus on the requirements for admissibility and the need for expert testimony.

Key Point Checklist

This article has covered the following key knowledge points:

• Learned treatises are a hearsay exception when used with expert testimony.
• The treatise must be established as a reliable authority by expert testimony, admission, or judicial notice.
• The treatise may be read into evidence but not received as an exhibit.
• An expert must be on the stand, and the treatise must be relied on or called to the expert's attention.
• Learned treatises may be used for impeachment or as substantive evidence if requirements are met.

Key Terms and Concepts

• Learned Treatise
• Hearsay Exception for Learned Treatises
• Reliable Authority
• Expert Testimony