Physicians, scientists, engineers and other professionals engaged in a trade or profession regularly use, consult or rely to some degree upon published materials, such as treatises, books, reference materials, and articles, regarding specialized areas of knowledge in the course of practicing their profession. Critical decisions will be made in reliance upon these so-called “learned treatises.” Does reliance validate the reliability of these learned treatises such that their admissibility and use in litigation should be freely permitted?

Notably, the Federal Rules of Evidence and the vast majority of the states recognize that learned treatises are usually reliable, and that the truth-finding function of trials is enhanced by according evidential value to learned treatises on a subject relevant to the action on trial. This evidentiary treatment of learned treatises is reflected in rules and statutes based on FRE 803(18), which makes the following admissible:

Statements in Learned Treatises, Periodicals, or Pamphlets

A statement contained in a treatise, periodical, or pamphlet 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. If admitted, the statement may be read into evidence but not received as an exhibit.