We are once again inspired by our friend and colleague, Michael J. Hutter, to address an evidentiary question that has particular importance in medical malpractice litigation. In his most recent New York Law Journal column on evidence, Professor Hutter raises the question of whether New York should adopt FRE 803(18), the Federal Rule of Evidence pertaining to the admissibility at trial of statements contained in learned treatises, periodical or pamphlets. See Hutter, NY’s Position Regarding Evidentiary Uses Of Learned Treatises: Time To Change?, N.Y.L.J June, 2021, p. 3. Professor Hutter posits that adoption of the rule, at least with respect to “treatises that are unquestionably reliable,” such as Gray’s Anatomy, “would be a progressive step forward.” For the reasons described below, we respectfully disagree.
Our analysis commences with the fundamental purpose underlying the general rule prohibiting hearsay evidence. As noted in Prince-Richardson on Evidence (11th ed., Farrell), §8-102:
A witness who testifies upon trial to some fact may be cross-examined for the purpose of determining what weight, if any, should be given to the testimony. The cross-examiner … is given the opportunity to lay bare whatever weakness there may be in the witness’ story, and the trier of fact has the opportunity to assess credibility by observing the demeanor of the witness. *** In the usual case of hearsay, no such opportunity exists. The party against whom the hearsay is offered has no opportunity to cross-examine the declarant, that is, the person who made the hearsay statement. This deprivation of the right of cross-examination constitutes the principal justification for the hearsay rule.