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BRESLAU v. MCALISTER12/13/2000
lly admitted as evidence does not lessen the impact of publishing and prominently displaying the statements to the jury. The trial court's cautionary statement was inadequate to "unring" the bell after the jury read the statements.
Proof which is addressed directly to the senses of the trier of fact without interposing the testimony of witnesses is generally characterized as visual, real, or demonstrative evidence. 29A Am. Jur. 2d Evidence ยง 934 (1994). The enlargements did not demonstrate anything. They were not presented so that the jury could view a scene. They did not diagram, sketch, or otherwise depict a setting. The enlargements were not medicine or science. They were simply placards upon which magnified words from the treatises and periodicals were displayed. It is inaccurate to characterize the placards the same way that we treat photographs, X-ray pictures, maps, models, motion pictures, and videotapes.
Courts should confine counsel to the terms of the rule by allowing them to read the affected statements into evidence during questioning to demonstrate that witness testimony is either in accord with or contradicts statements found in sources recognized as reliably authoritative. When counsel are allowed to publish statements from learned treatises to the jury in any other fashion, those
statements essentially become proof in themselves. When that happens, what our rules intended to not be hearsay becomes, for all effective purposes, implicitly admitted hearsay.
I respectfully dissent.
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