Monday, August 31, 2015

Learned Treatises

Mississippi Rule of Evidence 803(18) provides that: 

"(18) Learned Treatises.  To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. Treatises used in direct examination must be disclosed to opposing party without charge pursuant to discovery.". (emphasis added)

There are a couple of minor points on the last part.  If a treatise is used in direct examination, it must be disclosed.  However, if one is used in cross, it need not be disclosed.  However, it may be hard to lay a foundation that the item is in fact a learned treatise if no foundation is laid.  The second point is that the item may not be entered into evidence.  However, there is some authority from other jurisdictions that indicate if the item is published to the jury, it can go into evidence.  There is no authority one way or the other on this in Mississippi that I have been able to find. 

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