A learned treatise, in the law of evidence, is a text that is sufficiently authoritative in its field to be admissible as evidence in a court in support of the contentions made therein.
Under the common law, such evidence was at one time considered hearsay - a statement made out of court being introduced to prove the truth of the statement - and was not admissible except to rebut the testimony of an opposing expert witness. There were four ways to introduce such evidence:
- Adduce testimony that the opposing expert witness actually used that text to reach his conclusions;
- Adduce testimony by the opposing expert admitting that the text is an authority in the field;
- Have a friendly expert witness testifying against the opposing expert witness attest to the authoritativeness of the text.
- Have the judge take judicial notice of the text, if it is sufficiently notable that the average person would know that it is an authority (for example, Gray's Anatomy[1][2]).
Under the Federal Rules of Evidence 803 (18), either party can introduce a learned treatise as evidence, irrespective of whether it is being used to rebut the opposing party. Such texts are now considered an exception to hearsay, with two limitations:[3]
- For the learned treatise to be introduced, there must be an expert witness on the stand;
- Like a recorded recollection, the actual learned treatise does not go to the jury, but instead comes into evidence only by being read to the jury.
References
- ^ "ADA Policy Statement on Sleep Disordered Breathing From a Lawyer's Perspective by Ken Berley, DDS, JD, DABDSM". Dental Sleep Practice. March 23, 2018. Retrieved May 8, 2018.
For example, courts throughout the country have universally recognized Gray’s Anatomy textbook as a learned treatise
- ^ Ohio Rules of Evidence (PDF), Supreme Court of Ohio, July 1, 1998, Rule 706, p. 66, retrieved May 8, 2018
- ^ Federal Rules of Evidence, Legal Information Institute, December 1, 2015, Rule 803 (18), retrieved May 8, 2018