EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, May 15, 2013

Learned Person: The Learned Treatise Exception, Impeachment & the Truth of the Matter Asserted

Similar to its federal counterpartMinnesota Rule of Evidence 803(18) provides an exception to the rule against hearsay 

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, [for] 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.

In State v. Thim, 2013 WL 1942975 (Minn.App. 2013), the defendant claimed that he was using Rule 803(18) solely to impeach a witness for the prosecution. Was he correct?

In Thim, Thol Thim was convicted of first-degree criminal sexual conduct and furnishing alcohol to a minor. After he was convicted, Thim appealed, claiming, inter alia, that the district court erred in precluding him from impeaching a witness for the prosecution with a learned treatise under Minnesota Rule of Evidence 803(18). Specifically,

Cheryl Darsow, a registered nurse in the Mayo Clinic's emergency room testified that she observed no vaginal injuries on [alleged victim] C.P. during the sexual-assault exam she completed shortly after the assault. Responding to a question of how often she observes vaginal injuries in sexual-assault cases involving physically-mature victims, Darsow testified, "In my experience, I would say that we don't often see vaginal injuries in cases of assault." Darsow explained that this is "because of the elasticity and...rapid regeneration of cells."

Thereafter, Thim sought to challenge this testimony by reading from an article stating that vaginal injuries occur in 68% of sexual-assault cases." In response, "[c]iting Minn. R.Crim. P. 9.02, subd. 1, which states that, in felony cases the defendant must disclose all "books, papers, [and] documents" that "the defense intends to introduce at trial," the state objected and the district court sustained the objection for lack of disclosure." The district court agreed with the State.

On appeal, Thim claimed "that he was under no obligation to disclose the article because he sought to use it for impeachment on cross-examination, not to admit it into evidence on direct." The Court Appeals of Minnesota concluded that "[a]ppellant is correct" and that, "[b]ecause appellant satisfied the requirements of Minn. R. Evid. 803(18), the district court erred by excluding the article." 

I don't necessarily disagree with the court's conclusion, but I do disagree with Thim's argument that "he sought to use [the learned] treatise for impeachment..." Or, more specifically, I dispute the implied assertion that he was using the treatise solely for impeachment.

Rule 803(18) is an exception to the rule against hearsay, meaning that a statement offered under the rule is offered to prove the truth of the matter asserted. Indeed, the Advisory Committe's Note to Federal Rule of Evidence 803 provides that Rule 803(18)

does not require that the witness rely upon or recognize the treatise as authoritative, thus avoiding the possibility that the expert may at the outset block cross-examination by refusing to concede reliance or authoritativeness....Moreover, the rule avoids the unreality of admitting evidence for the purpose of impeachment only, with an instruction to the jury not to consider it otherwise. The parallel to the treatment of prior inconsistent statements will be apparent. See Rules 6130(b) and 801(d)(1).



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