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<b><i>Practice Tip:</i></b> Cross-Examination Using Learned Treatises

By John L. Tate
December 31, 2015

Anecdotal evidence suggests that a once common cross-examination technique ' impeachment with so-called “learned treatises” ' may be passing out of favor. If so, the trend should be reversed. Using a learned treatise on an opposing expert is, at a minimum, an effective and efficient way to undermine his or her credibility. And in the right hands, cross-examination using a learned treatise can also build affirmative evidence supporting the cross-examiner's case-in-chief.

The technique is rooted in Federal Rules of Evidence (FRE) 803(18), the hearsay exception for “learned treatises, periodicals, or pamphlets.” The rule provides: “A statement contained in a treatise, periodical, or pamphlet [is useable as evidence] if:

(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

(B) the publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice.”

One recent commentator, who will go unnamed, summed up application of FRE 803(18) this way: “Most commonly, medical literature is used in cross-examination of an outside medical expert hired to provide expert opinion and testimony' . An expert may be cross-examined by the use of a learned treatise if he/she admits that the treatise is a recognized and standard authority on the subject involved.”

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