Hearsay and circumstances of its admissibility - Learned tre...

Learning Outcomes

This article explains the learned treatise hearsay exception for the MBE, including:

• How to identify when a publication qualifies as a learned treatise under the Federal Rules of Evidence and common exam fact patterns that signal this issue.
• The precise requirements of Rule 803(18) for admitting statements from a treatise as substantive evidence, and how missing elements affect admissibility.
• The procedural steps for establishing that a publication is a “reliable authority,” including use of expert testimony, party admissions, and judicial notice.
• How learned treatises may be used with expert witnesses on direct and cross-examination, and how those uses differ strategically on the MBE.
• The distinction between using treatises solely to impeach an expert’s credibility and using them as direct proof of medical, scientific, or historical facts.
• The limitations on reading treatises into evidence, why the publication itself is not received as an exhibit, and how this parallels past recollection recorded.
• How the learned treatise exception interacts with other hearsay exceptions, such as business records, public records, and market reports, which often appear as distractors.
• Typical MBE traps involving absence of an expert on the stand, failure to prove reliable authority, or improper attempts to send the publication to the jury.

MBE Syllabus

For the MBE, you are required to understand the hearsay rule and its exceptions as they apply to learned treatises, with a focus on the following syllabus points:

• The definition and scope of a learned treatise, including the types of publications covered.
• The threshold requirements for admitting treatise statements under Federal Rule of Evidence 803(18).
• How to establish that a publication is a “reliable authority.”
• The proper use of learned treatises with expert witnesses on direct examination and cross-examination.
• The distinction between impeachment use and substantive use of treatise statements.
• The rule that treatises are read into evidence but not received as exhibits, and related exam traps.

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 specific hearsay exception that appears frequently in MBE Evidence questions. They allow certain authoritative writings to be read to the jury for their truth, but only when strict conditions are met and an expert witness is involved.

Key Term: Hearsay
An out-of-court statement offered in court to prove the truth of the matter asserted in the statement.

Normally, quoting from a book or article in court to prove the facts it contains is classic hearsay. The learned treatise exception softens that rule in limited circumstances, recognizing that some published sources are trustworthy enough to be considered along with expert testimony.

What Is a Learned Treatise

A learned treatise is a publication that is recognized as authoritative in a particular discipline—commonly medicine, science, engineering, or history. On the MBE, the rule is drawn from Federal Rule of Evidence 803(18).

Key Term: Learned Treatise
A published treatise, periodical, or pamphlet on a subject of history, medicine, or other science or art that is recognized as a reliable authority in its field.

Typical examples:

• A standard medical textbook used in medical schools.
• A leading engineering manual on bridge design.
• A well-known historical work on a particular period or event.
• A peer‑reviewed scientific article from a respected journal.

Note that “learned treatise” is a term of art. Not every article or book counts. The party seeking to use it must show that it is a reliable authority in the relevant field.

Key Term: Reliable Authority
A publication that experts in the relevant field generally regard as trustworthy, established in court through expert testimony, admission, or judicial notice.

Also keep in mind that there is a separate hearsay exception for market reports and commercial publications (e.g., stock price tables). Those are usually tested under a different rule and are not “learned treatises” in the Rule 803(18) sense.

The Hearsay Exception for Learned Treatises

Under the Federal Rules, statements from learned treatises are hearsay because they are out-of-court assertions offered for their truth. Rule 803(18) creates an exception that permits those statements to be considered substantively, but only in a narrow procedural setting.

Key Term: Hearsay Exception for Learned Treatises
A rule allowing statements from a recognized learned treatise to be read into evidence for their truth when used with expert testimony and when certain conditions are satisfied.

The key features of this exception:

• It applies to statements in learned treatises, periodicals, or pamphlets on history, medicine, or other science or art.
• It requires an expert to be on the stand.
• It requires a showing that the publication is a reliable authority.
• It permits the relevant statement to be read to the jury, but the publication itself is not given to the jury as an exhibit.

Core Procedural Concepts

The learned treatise rule interacts closely with expert testimony and the examination of witnesses.

Key Term: Expert Testimony
Evidence given by a witness who is qualified by knowledge, skill, experience, training, or education to offer opinions or inferences within a specialized field.

Key Term: Direct Examination
Questioning of a witness by the party who called the witness, usually aimed at presenting that party’s affirmative case.

Key Term: Cross-Examination
Questioning of a witness by the opposing party, primarily to test credibility, reveal weaknesses, and explore inconsistencies or bias.

Key Term: Judicial Notice
A court’s acceptance of a fact as true without requiring formal proof, because the fact is either generally known or can be accurately determined from reliable sources.

Key Term: Substantive Evidence
Evidence admitted for the purpose of proving a fact in issue, not merely for testing credibility or for some limited, non-hearsay purpose.

These concepts frame how learned treatises are used: an expert must be testifying (on direct or cross), the judge may take judicial notice that a text is authoritative, and the treatise statements may be admitted as substantive evidence.

Requirements for Admissibility

For a learned treatise to be admitted as substantive evidence under Rule 803(18), all of the following elements must be satisfied:

• Qualified type of publication
  • It must be a treatise, periodical, or pamphlet on a subject of history, medicine, or other science or art.
• Reliable authority
  • The publication must be established as a reliable authority by:
  • Testimony or admission of the expert on the stand,
  • Testimony of another expert, or
  • Judicial notice by the court.
• Expert witness on the stand
  • An expert must be testifying at the moment the treatise statement is introduced. The treatise cannot be introduced alone without an expert.
• Connection to the expert’s testimony
  • The statement must either:
  • Have been relied upon by the expert during direct examination, or
  • Be called to the expert’s attention during cross-examination.
• Method of presentation
  • Only the relevant portion may be read into evidence; the publication itself is not received as an exhibit for the jury.

If any element of these requirements is missing, the treatise cannot be used as a hearsay exception for its truth, although it may still sometimes be used in limited ways for impeachment.

Establishing a “Reliable Authority”

A recurring step—and common MBE issue—is showing that the publication is a reliable authority.

The publication can be established as authoritative by any of these methods:

• Admission or testimony of the expert on the stand

  • The easiest method. On either direct or cross, the expert acknowledges that the text is a standard reference in the field.

• Testimony of another expert

  • If the current expert refuses to call the book authoritative, another expert (even one called by the opposing party) can testify that it is widely accepted.

• Judicial notice

  • In rare cases, the court itself may recognize that a text is authoritative based on its reputation (for example, a classic medical manual or an official government manual).

On the MBE, it is common to see a question in which the expert denies that a text is authoritative, but the problem states that “other experts in the field regard the text as a standard reference.” That allows the court to treat it as a reliable authority even without the testifying expert’s endorsement.

Use with Expert Witnesses

A critical limitation: a learned treatise may only be used in conjunction with expert testimony. The expert acts as the bridge that brings the treatise into the trial.

• Use on direct examination

  • A party’s own expert may:
  • Testify that a treatise is authoritative.
  • Explain that the expert relied on that treatise in forming their opinion.
  • Have the relevant passages read into evidence as part of the basis of the opinion.

• Use on cross-examination

  • The opposing party may:
  • Confront the expert with statements from an authoritative treatise.
  • Use those statements to challenge (impeach) the expert’s conclusions.
  • If the treatise is shown to be a reliable authority, have the statements read into evidence substantively.

If no expert is on the stand, the treatise is not admissible for its truth under Rule 803(18). You cannot simply introduce a book passage instead of calling a live expert.

Reading into Evidence

Once these threshold requirements are met, the rule permits the relevant portion of the learned treatise to be read into evidence.

• The jury hears the language of the treatise as part of the testimony.
• The book or article itself is not admitted as an exhibit and is not sent back with the jury during deliberations.

This is similar in structure to the past recollection recorded exception:

• In both contexts, the writing is read to the jury rather than admitted as an exhibit.
• For past recollection recorded, the adverse party is allowed to introduce the writing itself as an exhibit.
• For learned treatises, the rule is stricter: the publication is simply not received as an exhibit at all.

The policy is to prevent undue emphasis on the written document and to keep the focus on expert testimony and the specific passages that matter.

Impeachment vs. Substantive Evidence

Learned treatises can play two roles in litigation.

• Impeachment use

  • A lawyer can use a treatise to show that a respected authority contradicts the expert’s position, damaging the expert’s credibility.
  • When used purely to show inconsistency, the treatise is functioning as an impeachment tool.

• Substantive use

  • Once the treatise is established as a reliable authority and the other Rule 803(18) conditions are met, the statements read to the jury are admissible for their truth.
  • The jury can treat the treatise’s content as evidence of the actual medical standard of care, scientific principle, or historical fact.

On the MBE, answer choices often distinguish between “impeachment only” and “substantive” use. Remember:

• Treatise statements are admissible as substantive evidence only if:
  • The publication is shown to be a reliable authority,
  • An expert is on the stand, and
  • The statement is relied on in direct or called to the expert’s attention in cross.
• Even when those conditions are not satisfied, the mere act of questioning an expert about a treatise can undermine credibility, but the statements themselves will not be considered as proof of the facts asserted.

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. The publication has been established as a reliable authority, it is being used with an expert on the stand, and it has been called to the expert’s attention during cross-examination. The jury may consider the passage for its truth, but the textbook itself is not given to the jury as an exhibit.

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 from a peer‑reviewed journal, 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. The publication qualifies as a learned treatise, it has been established as a reliable authority, an expert is on the stand, and the passage is called to the expert’s attention during cross-examination. Reliance on the article by the expert is not required on cross, as long as the other requirements of Rule 803(18) are satisfied.

Worked Example 1.3

In a negligence case involving complex engineering issues, the plaintiff offers into evidence a widely respected engineering handbook to show that a particular bridge design is unsafe. No expert has been called yet. The plaintiff argues that the court can take judicial notice that the handbook is authoritative.

Answer:
The handbook is not admissible as substantive evidence at this stage. Even if the court could take judicial notice that the handbook is authoritative, Rule 803(18) still requires that an expert be on the stand when the treatise statements are introduced. Without expert testimony, the treatise cannot be used as a hearsay exception for its truth. The plaintiff must call an expert and use the treatise in conjunction with that expert’s testimony.

Worked Example 1.4

In a medical malpractice action, the defense expert denies that a particular obstetrics textbook is authoritative. However, the plaintiff’s expert has already testified that the same book is the leading work in the field. On cross-examination of the defense expert, plaintiff’s counsel wants to confront the expert with a passage from that textbook.

Answer:
The passage may be read into evidence. The textbook has been established as a reliable authority through the testimony of the plaintiff’s expert. Rule 803(18) does not require the testifying expert (the defense expert) to concede that the treatise is authoritative, as long as reliability is established by another expert or by judicial notice. Because an expert is on the stand and the passage is being used on cross-examination, the statement is admissible for its truth and to impeach the defense expert.

Worked Example 1.5

A party’s orthopedic surgery expert testifies on direct examination that she relied on a standard orthopedic manual in forming her opinion that a particular procedure was necessary. Counsel now wants to read to the jury a paragraph from that manual that describes the recommended treatment protocol.

Answer:
The paragraph may be read into evidence as substantive evidence. The expert is on the stand, she relied on the manual in forming her opinion, and she can testify that the manual is a reliable authority. These facts satisfy the requirements of Rule 803(18). The relevant portion of the manual can be read to the jury, but the manual itself is not admitted as an exhibit.

Exam Traps and Distinctions

On the MBE, learned treatise questions are often mixed with other hearsay exceptions. Watch for these distinctions:

• Versus business records

  • A hospital’s internal chart of a patient’s clinical signs is a business record, not a learned treatise.
  • A medical textbook about treatment methods is a learned treatise, not a business record.

• Versus public records

  • A fire department inspection report is a public record.
  • A fire science textbook used in firefighter training is a learned treatise.

• Versus past recollection recorded

  • Past recollection recorded involves a witness’s own prior memorandum that accurately reflected their knowledge at the time.
  • A learned treatise is a general publication used with expert testimony; the expert need not be the author.

• Versus market reports and commercial publications

  • Stock price listings or commodity tables fall under the separate hearsay exception for market reports/commercial publications.
  • They are not “learned treatises” even if businesspeople rely on them.

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. Judicial notice alone does not cure the absence of an expert, and the publication itself is never admitted as an exhibit. On multiple-choice questions, answers that bypass either the expert requirement or the reliability requirement are incorrect.

Revision Tip

Remember: Treatise statements are read to the jury, not handed to them. Focus on three essentials:

• Expert on the stand,
• Reliable authority established, and
• Reliance on direct or use on cross-examination.
  When each element is present, the treatise statements may be considered both to impeach and as substantive evidence.

Key Point Checklist

This article has covered the following key knowledge points:

• Learned treatises are publications on history, medicine, or other science or art that are recognized as reliable authorities.
• Statements from learned treatises are ordinarily hearsay but may be admitted under a specific hearsay exception (Rule 803(18)).
• To use the exception, the publication must be shown to be a reliable authority through expert testimony, admission, or judicial notice.
• An expert must be on the stand when treatise statements are introduced.
• The treatise must be relied upon by the expert on direct or called to the expert’s attention during cross-examination.
• The relevant portions of the treatise are read into evidence; the publication itself is not received as an exhibit.
• Learned treatises may be used both to impeach an expert’s credibility and as substantive evidence when the Rule 803(18) requirements are met.
• Learned treatises should be distinguished from business records, public records, past recollection recorded, and market reports/commercial publications, which fall under different hearsay rules.
• Absence of an expert or failure to establish reliable authority is a common reason for exclusion and a common MBE trap.

Key Terms and Concepts

• Hearsay
• Learned Treatise
• Hearsay Exception for Learned Treatises
• Reliable Authority
• Expert Testimony
• Direct Examination
• Cross-Examination
• Judicial Notice
• Substantive Evidence