Pennsylvania Opinion Notes That the Keystone State Doesn't Have a Learned Treatise Hearsay Exception

Federal Rule of Evidence 803(18) provides an exception to the rule against hearsay for

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.

As the recent opinion of the Superior Court of Pennsylvania in Majdic v. Cincinnati Mach. Co., 537 A.2d 334 (Pa.Super. 2021), makes clear, however, “Pennsylvania does not recognize an exception to the hearsay rule for learned treatises.”

The language from the opinion comes from the Comment to Pennsylvania Rule of Evidence 803(18). That Comment references Majdic v. Cincinnati Mach. Co., 537 A.2d 334 (Pa.Super. 1988), in which the dissenting opinion noted that 

It is worth noting, however, that other jurisdictions have promulgated rules or enacted statutes which adopt in whole or in part the learned treatise exception to the hearsay rule embodied in Federal Rule of Evidence 803(18).4 See: Ala.Code § 12-21-108; Alaska Rules of Evidence 803(18); Arizona Rules of Evidence 803(18); Arkansas Uniform Rules of Evidence 803(18); Cal.Evid.Code § 1341; Colorado Rules of Evidence 803(18); Delaware Uniform Rules of Evidence 803(18); Hawaii Rules of Evidence 803(b)(18); Idaho Rules of Evidence 803(18); Kan.Stat.Ann. § 60-460(cc) (1986); Minnesota Rules of Evidence 803(18); Montana Rules of Evidence 803(18); Nev.Rev.Stat.Ann. § 51.255 (1986); New Hampshire Rules of Evidence 803(18); New Mexico Rules of Evidence 11-803(R); N.C.Gen.Stat. § 8-40.1; North Carolina Rules of Evidence 803(18); North Dakota Rules of Evidence 803(18); Oklahoma Evidence Code 12 O.S.1981, § 2803(18); South Dakota Rules of Evidence SDCL 19-16-22; Texas Rules of Evidence 803(18); Utah Rules of Evidence 803(18); Washington Rules of Evidence 803(a)(18); West Virginia Rules of Evidence 803(18); Wis.Stat.Ann. § 908.03(18); Wyoming Rules of Evidence 803(18). Several other jurisdictions have embraced the federal view by way of judicial decision. See: Cross v. Huttenlocher, 185 Conn. 390, 440 A.2d 952 (1981); Heilman v. Snyder, 520 S.W.2d 321 (Ky.1975). Those states recognizing a learned treatise exception now constitute a majority.

Whether Pennsylvania should join the growing number of jurisdictions which permit excerpts of treatises and other publications to be read to the jury is not for this Court to decide. That decision is better left to the legislature.  

-CM