 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Washington v. United States5/19/2005
IN THE DISTRICT OF COLUMBIA, 8-112 (2002). We agree. Therefore, we consider the argument raised by appellant applying FED. R. EVID. 803 (18).
C. Analysis
Appellant acknowledges that he did not confront the expert witness, Mr. Krebs, with the specific passages he sought to read from the Dimaio book. However, he urges this court to conclude that confrontation of the expert with the specific language a party seeks to have admitted under the rule is not required. The government argues that there is no authority supporting appellant's argument and that case precedents adhere to an interpretation to the contrary.
The plain language of Rule 803 (18) and the principles previously outlined tend to support the interpretation advanced by the government. The rule states explicitly, " o the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statementscontained in published treatises . . . [are not hearsay]." FED. R. EVID. 803 (18) (emphasis added). Thus, the admissibility of the subject "statements" is dependent upon meeting one of the requirements expressed in the disjunctive in the rule. Like the rule for statutory construction, "words of a [rule] should be construed according to their ordinary sense and with the meaning commonly attributed to them." Thompson v. District of Columbia, 863 A.2d 814, 817-18 (D.C. 2004) (citation and internal quotations omitted). This language plainly shows that to qualify for admission under the rule, it is the particular "statement contained in the treatise " that must be called to the attention of the expert. FED. R. EVID. 803 (18). Federal courts have so interpreted the rule. See, e.g., Tart, supra, 697 F.2d at 78 (Rule 803 (18) "permits the admission of learned treatises as substantive evidence, but only when 'an expert is on the stand and available to explain and assist in the application of the treatise . . . . '") (citation and internal quotations omitted); United States v. McQuiston, 998 F.2d 627, 629 (8th Cir. 1993) (The court did not abuse its discretion in rejecting a proffered periodical article not offered in connection with any witness' testimony.). Some states with a similar evidentiary rule have concluded likewise that the expert's attention must be directed not just to the treatise, but to the particular statement in the treatise sought to be placed before the jury. Thus, these state decisions are consistent with the purpose of the federal rule, which is to avoid jury confusion by prohibiting the introduction of treatise material without expert interpretation. FED. R. EVID. 803 (18) (advisory committee to 18)). If the expert's attention is not drawn to the specific material while on the stand, the material could be read to the jury without the benefit of expert guidance. Under the interpretation of the rule that appellant advances, the mere mention of a treatise by the expert would be sufficient to justify reading it later during the trial. However, it has been noted that such a "hide-the-ball" approach is disfavored. Mueller & Kirkpatrick, EVIDENCE ยง 8.60, at 1263 (1995).
Requiring specificity assists the jury and protects the integrity of the adversarial process. Id. .
Appellant contends that he sufficiently met the requirements for admissibility by having the expert witness acknowledge the book as authoritative and by eliciting from him that he knew of no other scientific studies that produced different results for .38 and .22 ammunition than those appearing in the Dimaio book. The question is whether defense counsel's questioning was sufficient to call the witness' attention to the specific portion of the treatise that he soug
Page 1 2 3 4 5 6 7 8 9 10 11 District of Columbia Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|