Learned Treatises, Periodicals, or Pamphlets: When is a statement admissible?

• A. A statement in a treatise is admissible if it is called to the attention of an expert on cross-examination or relied on by the expert on direct examination.
• B. A statement in a blog post.
• C. A statement in a self-published pamphlet not used by an expert.
• D. A statement in a government report.

Answer: (A)

Learned treatises, periodicals, and pamphlets can be used to support an expert’s testimony, but only in a narrow, controlled way. The admissibility hinges on the expert actually relying on the treatise on direct examination or the treatise being brought to the expert’s attention during cross-examination. When the expert has cited or depended on the treatise in forming the opinion, or the cross-examiner mentions it, a statement from that treatise can be read into evidence or used to bolster the expert’s testimony. This keeps the weight of the authority in the expert’s hands, rather than allowing unsolicited writings to flood the record.

This is why a blog post or a self-published pamphlet not used by an expert isn’t eligible—those writings aren’t recognized as the learned authorities the rule contemplates, and there’s no foundation that the expert has relied on them or that they were focused on during cross-examination. A government report, while potentially admissible under other rules as a government publication or public record, doesn’t fit the specific learned-treatise exception unless it is treated as a reliable authority and the expert has relied on it or it is attacked on cross-examination in the same way.