Under Rule of Evidence 803(18) hearsay exception, an expert may be cross-examined concerning learned treatises (periodicals, pamphlets and treatises) if:
a. it is called to the attention of the witness on cross or it was relied on by the witness on direct, and
b. it is reliable authority established by:
(1) admission on cross;
(2) judicial notice, or
(3) testimony by another expert.
Substantive Evidence: Although the treatise itself is inadmissible, it may be read to the trier of fact and is substantive evidence (not just admissible to impeach the expert).
CROSS-EXAMINATION – A MODEL
Q: You know who Dr. E. is, don’t you?
Q: You consider Dr. E. to be an authority in this area, correct?
Q: And, she is a reliable authority, isn’t she?
Q: Dr. E. has published articles and books in this field, hasn’t she?
Q: Showing you what has been marked as State’s Exhibit 50, can you examine this journal and the lead article, and tell us whether this is an article by Dr. E. that was published last year?
Q: And, State’s Exhibit 50 is an authoritative article in this area, isn’t it?
Q: Please read the name of the journal and the title of Dr. E.’s article.
Q: Now, turn to page two of the article and read the first full paragraph to the jury.