Danger Zone wrote:
Super precise evidence question: Can you use statements contained in scientific treatises (established as reliable authority) as substantive evidence when questioning your own expert on direct? Or is it limited to cross examination of an opposing expert?
Let's look at the FRE
(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:
(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an exhibit.
So, yes, you can use it as substantive evidence, so long as you lay the necessary foundation.
Other question that has to do with the business record exception. i looked at the FRE but it doesn't help much as its not very detailed.
Let's say there is an traffic incident and a cop comes along. He takes the deposition of a witness who makes a statement under excited utterance
. Does that fall under the business record exception even though the business record does not consist of a matter within the personal knowledge of the entrant or of someone with a duty (another cop) to transmit such matter to the entrant (the cop)?
Edit: That would be a situation of hearsay within hearsay. first statement falls under a hearsay exception. But I wonder if the second statement (the deposition taken in writing) falls under a hearsay exception as well because of the fact that the first statement falls under an exception to hearsay? that could matter when the cop himself is not available to testify and so cannot testify as to what the witness told him under excited utterance.