26 | November/December 2021 | BAEC Bulletin Using Learned Treatises To Examine Expert Witnesses BY HON. TIM FRANCZYK (RET.)
Introduction In New York State civil and criminal trials, it can be an effective impeachment technique to confront an expert witness on cross examination with passages from learned treatises, acknowledged by the witness to be authoritative, that contradict the witness’ opinion on a relevant matter. This rule which is more restrictive than Federal Rule of Evidence (FRE) 803 (18) and those of most other states, finds its origin in Egan v Dry Dock, East Broadway Battery & Rail Railroad, 12 AD 556(1st Dep’t 1896). In short, under the New York rule, learned treatises that an expert concedes has sufficient scientific gravitas can be used to IMPEACH the witness but NOT to prove the truth of their content. The Federal Rule FRE 803 (18) provides that a statement contained in a TREATISE, PERIODICAL OR PAMPHLET that is: a). either called to the attention of an expert on CROSS EXAMINATION or RELIED ON by an expert on DIRECT EXAMINATION and b). the publication is ESTABLISHED AS RELIABLE by the EXPERT’S ADMISSION OR TESTIMONY, by ANOTHER EXPERT’S TESTIMONY or by JUDICIAL NOTICE constitutes an EXCEPTION to the RULE AGAINST HEARSAY. So, the Federal rule not only allows the cross examiner to impeach an opposing expert by reading passages from a learned treatise but also permits the contrary information to be considered as substantive evidence. While portions of the text may be read out loud to the witness, the document itself will NOT be received in evidence for fear that jurors would spend their time reading through scientific or technical writings without the benefit of expert guidance. New York Evidence Advisory Committee Rule 7.01(b) An expert witness can testify to an opinion based upon out-of- court material if it is established by evidence other than just the expert’s own word (e.g., peer-reviewed articles or other experts) that the material is of a kind accepted as reliable in the profession in forming such opinions on a relevant matter. The opinion cannot, however, be based solely on hearsay. The opinion may also come in if it is based upon information provided by a witness who is subject to cross examination. In either case, this does NOT mean that the expert can testify to the CONTENTS of the out-of-court material. This is particularly a matter of concern in criminal cases where allowing an expert to testify to statements made by non-testifying witnesses may violate the defendant’s Sixth Amendment right of CONFRONTATION. (See People v Goldstein, 6 NY3d 119 [2005]).
Recent Debate Over Whether New York Should Conform to the Federal Rule Spirited debate has arisen among evidence scholars and trial attorneys over whether the New York rule should be expanded to mirror FRE 803(18). In a recent New York Law Journal article, Professor Michael J. Hutter of Albany Law School argued that at least insofar as widely accepted authoritative treatises are concerned (e.g., Gray’s Anatomy, Merck Manual), it would be a step forward for New York to abandon its current rule in favor of one that is in line with the Federal Rule. (See Michael J. Hutter, New York’s Outlier Position Regarding the Evidentiary Uses of Learned Treatises: Time to Change? NYLJ, 6/28/21, www.law.com/ newyorklawjournal/2021/06/28). In deciding when a particular treatise has attained “authoritative” status, Hutter suggests that the courts follow the same “general acceptance” test as in Frye v US, 293 F.1013 (D.C. Cir. 1923) which determines the admissibility of opinion
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