Forensic Evidence.com: 'Of Interest'- Expert Witnesses: Do You Have Any Demonstration Videotapes?....

Drawing upon some broad principles from the common law rules of evidence we know that, traditionally, learned texts and treatises could be used in court only to impeach, on cross-examination, expert witnesses who testified to facts or conclusions that were contradicted in the authoritative professional literature. But, since the published authors' statements were obviously made out-of-court, we could not use them as substantive evidence of the truth of what was contained therein, because that would violate the rule against hearsay evidence. If we wanted to avoid a hearsay objection, we would have to call the author of the text to the stand. But if we used the text only for impeachment purposes, the text itself would not come in for the truth of what was contained therein, but only to reflect on the credibility of a witness who testified contrary to such authoritative publications. That got us around the evidentiary prohibition against hearsay statements.

Today, we can of course still use authoritative texts and treatises for impeachment purposes. That is often what occurs in trials. But modern rules of evidence in many states, and the Federal Rules of Evidence more specifically, go much further. To get around the hearsay problem, Federal Rule of Evidence 803(18) creates a specific exception to the rule against hearsay for "learned treatises." After providing, in its introduction, that "The following are not excluded by the hearsay rule, even though the declarant is available as a witness", Rule 803, in its Subsection (18), provides that:

In other words, not only can the learned text or treatise be used for impeachment purposes to contradict an expert who is on the stand, but the text can come into evidence as substantive proof of its content in support of one's own expert, and the text comes in "for its truth." . The only requirement is that there be some validation of the source as authoritative by an expert witness for either side, or by admission, or by judicial notice.

Only one limitation remains. The text itself is not shown to the jury; it will not go to the jury room. It can only be read into evidence. The reason for that is rather obvious. Since, under the exception to the rule against hearsay, the text is made admissible as a substitute for live witness testimony, we don't want the jurors to attach more weight to it in its written form by allowing them to pour over the text in the jury room than they would have been able to give the evidence had it come in as oral testimony.

These are well established principles of modern evidence law. Now we come to a new issue that was before a federal appellate court recently for the first time. The question is: can a training videotape made by and for experts be admitted into evidence under this "learned treatise" exception to the rule against hearsay. The Second Circuit Court of Appeals, apparently for the first time in federal courts, decided that issue in the affirmative in the case of Costantino v. Herzog, 203 F.3d 164 (2d. Cir. 2000).

In Costantino v. Herzog, the defendant, an obstetrician, encountered unexpected complications when he delivered Amanda Costantino. The baby's shoulder was trapped behind her mother's pubic bone – a condition known as "shoulder dystocia" – which required Dr. Herzog to employ many maneuvers to free the infant, who was ultimately born with "Erb's Palsy," an impairment to the nerves running to the arm. The Costantinos claim that, when Dr. Herzog pulled and rotated Amanda's head during delivery, he caused the palsy by deviating from accepted standards of obstetrical practice, and thus committed malpractice.

Plaintiff's medical expert was Dr. Bernard Nathanson, a fellow of the American College of Obstetricians and Gynecologists ("ACOG"), an organization of some thirty thousand physicians specializing in the field, which also organizes continuing education programs for doctors and publishes educational materials that contribute to setting standards of proper care for obstetricians and gynecologists.

The defense attempted to rebut the plaintiff's expert testimony in several ways. He relied on a learned treatise and then attempted to justify Dr. Herzog's actions during delivery by offering in evidence a 15-minute videotape from ACOG's audiovisual library called "Shoulder Dystocia." According to the defense, the tape was "put out by ACOG to educate physicians and portrayed the various techniques recommended to remedy shoulder dystocia." While using the tape as evidence of the standard of care would make it hearsay, the defense offered it under Federal Rule of Evidence 803 (18). Plaintiff objected to use of the tape because Rule 803 (18) refers only to "published treatises, periodicals, or pamphlets" and does not mention videotapes.

After an in camera review of the tape, the trial judge, acknowledging that ACOG had been shown to be an authoritative body, admitted the tape as satisfying Rule 803 (18). Dismissing the plaintiff's objections, the judge stated, "I think . . . focusing on the distinction between . . . something in the form of a periodical or book, as opposed [to] a videotape is just overly artificial." It is on this point, inter alia, that plaintiffs appealed to the Second Circuit Court of Appeals, which affirmed the trial court's order.

The reviewing court, examining the issue de novo, noted that no federal appellate bodies had faced the precise issue, although various state courts with evidence codes similar to or drawn from the federal rules have confronted the question without reaching a consensus. For example, in Loven v. State, 831 S.W.2d 387 (Tex. App. 1992) and in Schneider v. Cessna Aircraft Co., 722 P.2d 321 (Ariz. App. 1985), the courts admitted videotapes under a learned treatises exception. But in Simmons v. Urchak, 551 N.E.2d 539 (Mass. App. 1990), rev. denied 554 N.E.2d 851 (Mass. 1990), and in Morrison v. Stallworth, 326 S.W.2d 387 (N.C. App.1985), the courts found that videotapes were not admissible under rules comparable to Federal Rule 803 (18).

The court was cognizant of the rationale behind the learned treatise exception and recognized that "as long as the authority of the treatise had been well established, the factfinder should have the benefit of expert learning on a subject, even though it is hearsay." It also recognized that, in this case, it was required to "make law." In accepting that duty, the reviewing tribunal agreed with the trial judge that the distinction between videotapes and printed materials was too "overly artificial" and that trustworthy information should not be disallowed just because it was in the form of a videotape. Said the court, "We see no reason to deprive a jury of authoritative learning simply because it is presented in a visual, rather than a printed, format."

The reviewing court also addressed other issues. The argument that there was an insufficient foundation for the admission of the videotape was easily rejected, as were plaintiff's claims that the tape was confusing and unduly prejudicial. All evidence that is used by a party is, to some extent, prejudicial to the opposing side. That is in fact the reason for offering the evidence. But the court concluded that the evidence was not unfairly prejudicial, and that the jury would not have mistaken it for a recording of Amanda Costantino's birth on the tape.

As was indicated above, the rule announced is one that the federal courts in other appellate circuits are also likely to follow since it represents a modern trend that is even followed by some state courts as well. But not all are in agreement. Recently, in Aldridge v. Edmunds, 750 A.2d 292 (Pa. 2000), the Pennsylvania Supreme Court decided to ignore the modern trend and said that if a portion of a learned treatise is used as a means through which opinion evidence is being conveyed to a jury, then such use violates the prohibition against hearsay evidence. Because experts for both sides had admitted the authoritative nature of the publication, and had relied on it to some extent, the court decided that the trial judge's error did not require a new trial. But the Pennsylvania high court expressly refrained from joining the modern trend to recognize a learned treatise exception to the hearsay rule.