Rationalization and Limitation: The Use of Learned Treatises to Impeach Opposing Witnesses

Abstract:     
The numbers tell the importance of this topic. Litigators are calling expert witnesses more frequently than ever before, and there has never been such a vast body of technical literature available to impeach expert witnesses.

The maddening aspect of this topic is that although in some circumstances all courts will permit the use of publications to impeach an opposing expert, the courts almost never explain why the publication's contents are logically relevant on an impeachment theory. At one time the courts' failure to do so was tolerable; until the last few decades, most jurisdictions did not recognize a learned treatise exception to the hearsay rule. However, following the lead of Federal Rule of Evidence 803(18), most jurisdictions now recognize that exception - at the same time they permit the impeachment use of treatises. Today it is imperative that the courts distinguish between the two doctrines. When a court allows the use of a publication solely for the purpose of impeachment, that distinction determines both what the judge should say in a limiting instruction and what counsel may say during closing argument.

As the title of this article suggests, the purpose of the article is twofold: rationalization and limitation. After describing the current split of authority, the article attempts to rationalize the impeachment doctrine. The article evaluates the various positions taken by the courts to determine under which positions the publication possesses legitimate, nonhearsay relevance to the expert's credibility. The article then argues for a policy limitation on the scope of the impeachment doctrine. Having identified several impeachment theories of logical relevance, the article demonstrates that some courts have gone too far in allowing the impeachment use of publications.

Number of Pages in PDF File: 15

Accepted Paper Series