Learned treatise

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Evidence

Part of the common law series

Types of evidence

Testimony · Documentary Physical / Real · Digital Exculpatory · Scientific Demonstrative Eyewitness identification Genetic (DNA) · Lies

Relevance

Burden of proof · Laying a foundation Public policy exclusions Character · Habit · Similar fact

Authentication

Chain of custody Judicial notice · Best evidence rule Self-authenticating document Ancient document

Witnesses

Competence · Privilege Direct examination · Cross-examination  · Redirect Impeachment · Recorded recollection Expert witness · Dead Man's Statute

Hearsay and exceptions

in English law · in United States law Confessions · Business records Excited utterance · Dying declaration Party admission · Ancient document Declaration against interest Present sense impression · Res gestae Learned treatise · Implied assertion

Other common law areas

Contract · Tort · Property Wills, trusts and estates Criminal law

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A learned treatise, in the law of evidence, is a text that is sufficiently authoritiative 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 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:

1. Adduce testimony that the opposing expert witness actually used that text to reach his conclusions;
2. Adduce testimony by the opposing expert admitting that the text is an authority in the field;
3. Have a friendly expert witness testifying against the opposing expert witness attest to the authoritativeness of the text.
4. Have the judge take judicial notice of the text, if it sufficiently notable that the average person would know that it is an authority (for example, Gray's Anatomy).

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:

1. For the learned treatise to be introduced, there must be an expert witness on the stand;
2. 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