708.11Learned Treatises [Rule 803(18)]
Key Concepts
- An expert witness may be examined with statements from a learned treatise as long as the treatise is established as a reliable authority on the subject.
- The treatise’s status as a reliable authority may be established by judicial notice, acknowledgement from the testifying witness, or by other expert testimony.
- Statements from the treatise may be read into evidence, but the treatise itself may not be introduced as an exhibit.
The Basic Rule
Rule 803(18) – Learned Treatises
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To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. |
Admissibility Requirements
On either direct examination or cross-examination, an expert witness may be asked about a statement contained in “published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art.” G.S. 8C-803(18). However, the treatise or periodical must be "established as a reliable authority” on the subject, which may be accomplished by:
- judicial notice (e.g., judge takes judicial notice that the Physician’s Desk Reference is widely recognized as a reliable authority in the medical field);
- testimony or admission of the witness (e.g., the witness being examined acknowledges that the periodical or treatise is a reliable authority); or
- other expert testimony (e.g., defense expert is unwilling to acknowledge that it is a reliable authority, but the state’s expert already established that it is).
See G.S. 8C-803(18). Cf. State v. Lovin, 339 N.C. 695 (1995) (error to allow cross-examination of expert witness with an article that had not been established as a learned treatise on the subject). See also State v. Oliver, 85 N.C. App. 1 (1987) (a party that fails to object to the reliability of an authority offered under Rule 803(18) “must overcome a presumption of admissibility on appeal”).
The statement only has to be “called to the attention” of the witness in order to ask him or her about it on cross-examination. G.S. 8C-803(18). There is no requirement that the witness “rely upon or recognize the treatise as authoritative, thus avoiding the possibility that the expert may at the outset block cross-examination by refusing to concede reliance or authoritativeness.” G.S. 8C-803(18), Official Commentary.
Purpose and Scope
Because Rule 803(18) is a hearsay exception, a statement from the treatise itself may be admitted as substantive evidence in the case. See G.S. 8C-803(18), Official Commentary (noting that “the rule avoids the unreality of admitting evidence for the purpose of impeachment only, with an instruction to the jury not to consider it otherwise”); see also 1 McCormick on Evidence § 13 (7th Ed.) (interpreting the similar provision of Fed. R. Evid. 803(18): “an expert witness may, of course, be confronted with a learned treatise, admissible as substantive evidence under the hearsay exception”).
However, while relevant statements from these resources “may be read into evidence,” the treatises or periodicals themselves “may not be received as exhibits.” G.S. 8C-803(18).
Rule 803(18) is most often used during cross-examination to challenge or impeach an opposing party’s expert witness with a statement from an authoritative publication that undermines the expert’s assumptions, methodologies, or conclusions. The rule can also be used on direct or redirect examination to introduce statements from a treatise or publication that help support or explain the expert witness’s opinion or methodology, as long as the witness "relied upon" those materials in reaching his or her opinion. See, e.g., State v. Oliver, 85 N.C. App. 1 (1987) (finding no error where state’s expert testified “that her profession accepted a body of literature regarding sexual abuse” and trial court allowed her “to mention what the literature said” – the appellate court held that “the literature upon which Dr. Gordon relied would come within the Rule 803(18) exception to the hearsay rule as statements contained in periodicals established as reliable authority by the testimony of Dr. Gordon and relied upon by her in direct examination.”).
