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67. Is the evidence offered admissible?
A defendant, a nurse at a nursing home, is charged with murdering a resident at the home by adding an allegedly lethal substance to the resident's food. At trial, to prove that the substance added to the resident's food could result in death, the prosecutor, without first calling any witnesses, offers to read into evidence several pages from a standard medical treatise that support the prosecution's claim that the substance the defendant added to the food is lethal.
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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 a 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. Juries need to be guided through the pertinent parts of the publication by the testifying experts.
A is correct. Learned treatises are not admissible on their own substantively. They may be admissible, however, if: (i) relied upon by an expert during direct examination; and (ii) established as a reliable authority. When these elements are satisfied, excerpts from the text may be read into evidence as an exception to the hearsay rule, but the treatise may not be submitted to the jury as an exhibit. In this case, the treatise was not offered through expert testimony, and therefore, is not admissible.
B is incorrect. This answer reaches the correct answer with the wrong reasoning, and is a misstatement of the law. Passages from a learned treatise may be read into evidence when the elements of the exception are met, but the treatise may not be submitted to the jury as an exhibit. Here, the evidence offered is inadmissible because there was no expert witness testifying to the learned treatise, as required by the exception.
C is incorrect. Although there is an exception to the hearsay rule for learned treatises, as stated above, the evidence must be introduced through expert witness testimony. In this case, the prosecutor offered the treatise without an expert, which is why it is inadmissible.
D is incorrect. It is true that the lethal nature of the substance is relevant to the defendant's state of mind, and evidence must be relevant to be admissible. However, not all relevant evidence is otherwise admissible. The relevance of an item of evidence will not ensure its admissibility if it is hearsay that does not satisfy an exception.