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36. Should the court allow the jury to examine the book?
In a civil trial for professional malpractice, the plaintiff sought to show that the defendant, an engineer, had designed the plaintiff's flour mill with inadequate power. The plaintiff called an expert witness who based his testimony solely on his own professional experience but also asserted, when asked, that the book Smith on Milling Systems was a reliable treatise in the field and consistent with his views. On cross-examination, the defendant asked the witness whether he and Smith were ever wrong. The witness answered, «Nobody's perfect.» The defendant asked no further questions. The defendant later called his own expert witness and asked, «Do you accept the Smith book as reliable?» The witness said, «It once was, but it is now badly out of date.» The plaintiff requested that the jury be allowed to examine the book and judge for itself the book's reliability.
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Under FRE 803(18), the learned treatise hearsay exception, a learned treatise may be substantively admissible if it is: (i) called to the attention of the expert witness upon cross-examination or relied upon by her during direct examination; and (ii) established as reliable authority by the testimony or admission of the witness, by other expert testimony, or by judicial notice. If the court finds a publication to be a reliable authority, then «statements» from it may be read into evidence, but the publication may not be received as an exhibit. Thus, the jury is not allowed to bring learned treatises into the jury room. There is a concern that if juries were allowed unrestricted access to the whole publication, they might rely on parts of the publication that are not germane to the case. The intent of the Rule is that juries need to be guided through the pertinent parts of the publication by the testifying experts.
A is correct. FRE 803(18) allowing for the introduction of learned treatises into evidence permits excerpts from a treatise to be read into evidence, but it does not permit the entire treatise to be entered as an exhibit. A jury should not be able to use or rely on other sections of the treatise that are not relevant to the case or the expert's testimony.
B is incorrect. This answer reaches the correct answer with the wrong reasoning. Under FRE 803(18), statements from a treatise may be read into evidence when the treatise is «called to the attention of an expert witness. .. or relied on by the expert» and is found to be reliable by the court. The Rule does not require that an expert relies on the treatise. In this case, the publication was called to the attention of the defendant's expert.
C is incorrect. The issue here is whether the jury may examine the entire treatise, and the Rule allows only «statements» from a learned treatise to be read into evidence. It does not allow the publication to be received as an exhibit. The treatise's reliability (which is contested here) is a question for the court to determine, but such a finding does not determine whether the entire publication can be an exhibit.
D is incorrect. The statement is true, but it does not mean that the jury may consider any evidence that the parties wish to present. The jury may not receive the entire learned treatise as an exhibit under FRE 803(18), only «statements» may be read into evidence.