28 | November/December 2021 | BAEC Bulletin Appeals deemed this to be unnecessarily confusing and unduly prejudicial, requiring reversal of the conviction. Trial Court Misstates The Learned Treatise Rule The Court also found reversible error in the trial court’s misapprehension of the rule permitting the use of learned treatises to impeach an opposing expert. When defense counsel asked the expert if he had read a particular textbook, the court admonished counsel that if he wanted to refer to any textbook, he first had to show it to the witness and could inquire about it only if the witness adopted and agreed with it. Referencing Egan v Drydock supra, the Court said that the opposing expert need not agree with a particular text to be asked about it. Rather, he must recognize it as an authority on the subject. Error to Admit Toxicology Text Error was also found in the trial court’s permitting the defendant’s former Pharmacy professor to read from sections of a Toxicology textbook that he had lent the defendant (who said he was studying for the Florida Pharmacy Boards). The sections read from included “Symptoms of Strychnine Poisoning,” and “Fatal Doses and Post-Mortem Appearances.” The Court noted that there was no evidence that the defendant inquired about or read those chapters, or that as a licensed pharmacist, he would need to go out of his way to learn about the particulars of strychnine poisoning. (The trial court instructed the jury that they could consider whether the defendant borrowed the book for the purpose of planning and gaining knowledge about strychnine poisoning). Final Thought While lawyers and legal scholars may continue to spar over whether the New York rule regarding learned treatises should be expanded to include their use on direct examination of a friendly expert as well on cross examination of an opposing one, there is no clear sign on the horizon of any impending change. So, unless counsel is trying a case in federal court, he/she should be prepared to be limited to using treatises only on cross examination of adversary experts who, hopefully, are able and willing to recognize them as authoritative sources. If so, the content comes in for its impeachment value rather than as substantive evidence of the truth of what it asserts. •
HON. TIM FRANCZYK (RET.) Deputy for Legal Education Assigned Counsel Program, Aid To Indigent Prisoner’s Society, Inc
Powered by FlippingBook