A comprehensive scholarly work that methodically outlines the basic aspects of doctrine in a particular field with greater depth than an encyclopedia.
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Expert Relies on Inspection Manual
Thomas Thompson hired structural engineer Tiana Tan to testify about balcony safety standards in his negligence suit against the building owner. Tiana relied on checklists from a widely used property inspection manual during direct examination to show that annual inspections were inadequate. On cross-examination defense counsel confronted her with other statements from the same manual. The court permitted Tiana to read the passages into evidence after she confirmed the manual's common professional use.
Treatise Cited for Due Process Limits
Talia Torres sued a nonresident defendant in state court seeking to enforce a judgment against out-of-state property. Her attorney referenced a leading treatise on constitutional limitations to argue that personal service was required before a defendant could be bound. The court examined whether the proceeding qualified as one in rem. The treatise passage helped frame the distinction between in rem and in personam actions.
In February 1866, J.H. Mitchell obtained a judgment in an Oregon circuit court against Neff for less than $300 in an action for attorney services.
At that time, Neff resided outside Oregon, received no personal service of process, and made no appearance in the case. The judgment was entered by default following constructive service by publication as authorized by the Oregon Code for non-resident defendants possessing property within the state.
The Oregon Code also provided for attachment of a non-resident's property in money actions. No such attachment occurred with respect to the land at issue. Instead, after the judgment, an execution issued, leading to a levy on the land and its sale at a sheriff's auction.
Pennoyer purchased the property at that sale and received a sheriff's deed. Separately, in 1866, the United States issued a patent to Neff for the same tract of land under the Donation Law of Oregon, which Neff valued at $15,000. Neff then brought suit against Pennoyer in the circuit court to recover possession of the premises based on his patent title.
The lower court held the Oregon judgment invalid because of deficiencies in the affidavits used to obtain the publication order and to prove publication occurred. The Supreme Court of the United States granted review to consider the validity of the state court judgment and the resulting sheriff's sale.
Tristan Thompson offered expert testimony that a pharmaceutical compound caused birth defects. To satisfy the reliability prong the expert identified a learned treatise on toxicology that described the scientific method his research followed. The court reviewed the treatise citation to confirm the methodology was accepted by a recognized minority of scientists. This showing helped establish the testimony's admissibility.
Daubert v. Merrell Dow Pharmaceuticals, Inc.509 U.S. 579, 592 (1993)
Two minors brought suit against Merrell Dow Pharmaceuticals, claiming they suffered limb reduction birth defects because their mothers had taken Bendectin, a drug prescribed for morning sickness to about 17.5 million pregnant women in the United States between 1957 and 1982.
Limb reduction defects occur in fewer than one birth out of every 1000. Scientists do not know the mechanism by which any teratogen causes such defects. The plaintiffs offered testimony from three groups of experts. One group proposed to testify to a statistical link between Bendectin ingestion during pregnancy and limb reduction defects based on reanalyses of published studies that had reported no such association. A second group proposed to testify that Bendectin causes limb reduction defects in humans because it causes such defects in laboratory animals. A third group proposed to testify based on the similarity of Bendectin's chemical structure to other drugs suspected of causing birth defects.
The district court granted summary judgment to Merrell Dow after excluding the plaintiffs' expert testimony. The Ninth Circuit affirmed that decision. The Supreme Court granted certiorari, reversed, and remanded for consideration under Federal Rule of Evidence 702.
On remand, the Ninth Circuit examined the affidavits and prior trial testimony of the plaintiffs' experts. None of the experts had studied the effect of Bendectin on limb reduction defects before being hired to testify in this or related cases. None had published his work on Bendectin in a scientific journal. The only review their work had received was by judges and juries.
Plaintiffs' epidemiological experts made vague assertions of a statistically significant relationship between Bendectin and birth defects but did not state that the relative risk exceeded two. With the exception of Dr. Palmer, the remaining experts were willing to testify only that Bendectin is capable of causing birth defects. Dr. Palmer alone was willing to testify that Bendectin did cause the limb defects in each of the children, based on his review of the plaintiffs' medical records and his conclusion that Bendectin is a teratogen.
Theresa Tucker challenged a jury instruction that limited the court's ability to comment on facts. Counsel cited a nineteenth-century evidence treatise to show that common-law practice allowed judges to assist juries with factual analysis. The court considered the treatise in determining whether the instruction preserved the historic function of trial by jury. The reference supported the argument that the instruction was consistent with traditional practice.
Fisher v. United States328 U.S. 463 (1946)
In March 1944 petitioner Fisher, the janitor at the library of the Cathedral of Saint Peter and Saint Paul in Washington, D.C., killed librarian Catherine Cooper Reardon inside the library building between eight and nine o'clock on the morning of March 1.
Reardon had complained a few days earlier to the verger about Fisher's care of the premises, and the verger had informed Fisher of the complaint.
Fisher and Reardon were alone in the library at the time of the homicide.
Fisher testified that Reardon spoke insulting words about his work, after which he slapped her impulsively.
He ran up a flight of steps toward an exit but turned back, seized a stick of firewood, struck her, and when the stick broke choked her to silence.
He then dragged her to a lavatory and left the body to clean up some spots of blood on the floor outside.
While Fisher was doing this cleaning up, the victim started hollering again.
Fisher then took out his knife and stuck her in the throat.
After that he dragged her body down into an adjoining pump pit, where it was found the next morning.
Fisher's accounts of the events varied.
His original confession made no reference to insulting words from Reardon.
His written confession mentioned them, and his trial testimony amplified their effect on him.
In the written confession he admitted his main reason for assaulting her was that she had reported him for not cleaning the floor.
The Deputy Coroner testified that the knife wound was not deep and only went through the skin.
Defense psychiatrists testified that Fisher was a psychopathic personality of a predominantly aggressive type, mentally somewhat below average, with minor stigmata of mental subnormalcy, and that he was unable by reason of a deranged mental condition to resist the impulse to kill.
The prosecution introduced competent evidence that Fisher was capable of understanding the nature and quality of his acts.
All evidence offered by the defense was received by the trial court.
Fisher was tried in the District Court of the United States for the District of Columbia on an indictment charging killing by choking and strangling with deliberate and premeditated malice.
The jury returned a verdict of guilty on the first count, and the court imposed a sentence of death.
The United States Court of Appeals for the District of Columbia affirmed the judgment and sentence.
Tori Taylor challenged a city ordinance that restricted single-family housing to nuclear families. Her attorney introduced passages from a treatise on land-use planning that discussed how such limits affect extended family living arrangements. The court used the treatise to evaluate whether the ordinance advanced legitimate community interests without unduly burdening family rights. The analysis helped determine the ordinance's constitutional validity.
Moore v. City of East Cleveland, Ohio431 U.S. 494, 503 (1977)
In early 1973, Mrs. Inez Moore received a notice of violation from the city of East Cleveland. The notice stated that her grandson John Moore, Jr., was an illegal occupant of her home. It directed her to comply with the housing ordinance.
Mrs. Moore lived in her East Cleveland home together with her son Dale Moore, Sr., and her two grandsons Dale Moore, Jr., and John Moore, Jr. John came to live with her after his mother's death when he was less than one year old. When she failed to remove John from the home, the city filed a criminal charge against her.
Mrs. Moore moved to dismiss the charge. She claimed that the ordinance was constitutionally invalid on its face. Her motion was overruled. Upon conviction she was sentenced to five days in jail and a $25 fine.
The East Cleveland ordinance limited occupancy of a dwelling unit to members of a single family. The ordinance defined family to include only a husband or wife of the nominal head of the household, unmarried children of the head or spouse provided they have no children residing with them, a parent of the head or spouse, or not more than one dependent child of the head or spouse along with that child's spouse and dependent children.
The Ohio Court of Appeals affirmed the conviction after giving full consideration to her constitutional claims. The Ohio Supreme Court denied review of the case. The United States Supreme Court noted probable jurisdiction of her appeal.
Topaz Mining's counsel in a constitutional challenge referenced early common-law and canon-law sources compiled in a treatise on the history of abortion regulation. The treatise traced the evolution of legal protections for fetal life from the time of quickening. The court considered these historical materials when assessing whether the challenged statute aligned with longstanding traditions. The reference informed the analysis of substantive due process claims.
Roe v. Wade410 U.S. 113 (1973)
In March 1970, Jane Roe, a single woman residing in Dallas County, Texas, instituted a federal action against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face. She also sought an injunction restraining enforcement of the statutes.
Roe alleged that she was unmarried and pregnant. She wished to terminate her pregnancy by an abortion performed by a competent licensed physician under safe clinical conditions. She was unable to obtain a legal abortion in Texas because her life did not appear to be threatened by continuation of the pregnancy. She could not afford to travel to another jurisdiction to secure a legal abortion.
James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe's action. In his complaint he alleged that he had been arrested previously for violations of the Texas abortion statutes. Two such prosecutions were pending against him in the Criminal District Court of Dallas County. He described conditions of patients who came to him seeking abortions. He claimed that for many cases he was unable to determine whether they fell within or outside the exception recognized by Article 1196 of the Texas Penal Code.
John and Mary Doe, a married couple, filed a companion complaint also naming the District Attorney as defendant. The Does alleged that they were a childless couple. Mrs. Doe was suffering from a neural-chemical disorder. Her physician had advised her to avoid pregnancy until her condition materially improved. She had discontinued use of birth control pills pursuant to medical advice. If she should become pregnant she would want to terminate the pregnancy by an abortion performed by a competent licensed physician under safe clinical conditions.
The two actions were consolidated and heard together by a duly convened three-judge district court for the Northern District of Texas. Upon the filing of affidavits, motions were made for dismissal and for summary judgment. The court held that Roe and members of her class and Dr. Hallford had standing to sue and presented justiciable controversies. The Does had failed to allege facts sufficient to state a present controversy and did not have standing. It concluded that the Texas criminal abortion statutes were void on their face. The court dismissed the Does' complaint while denying injunctive relief.
The plaintiffs Roe and Doe and the intervenor Hallford appealed to the Supreme Court from that part of the District Court's judgment denying the injunction. The defendant District Attorney cross-appealed from the grant of declaratory relief. Both sides also took protective appeals to the United States Court of Appeals for the Fifth Circuit. That court ordered the appeals held in abeyance pending decision by the Supreme Court.
What qualifies a publication as a treatise under the learned treatise hearsay exception?
A publication qualifies when it is a treatise, periodical, or pamphlet that is established as a reliable authority by an expert's testimony, another expert's testimony, or judicial notice. Widespread professional use can support reliability even without peer review. The expert must rely on the statement on direct examination or be confronted with it on cross-examination.
Supporting sources
May statements from a treatise be admitted as an exhibit?
No. Even when all requirements are met the statements may be read into evidence but the publication itself may not be received as an exhibit. This limitation prevents the jury from giving undue weight to the written word apart from the expert's testimony.
Supporting sources
How does a treatise differ from other secondary sources in persuasive weight?
Treatises provide exhaustive coverage of a specific legal field and are often more persuasive than other secondary materials because courts and scholars analyze and apply their doctrines in published decisions. Annotations of court applications further enhance their utility.
410 U.S. 113 (1973)
…of Abortion in Canon Law 15 (Catholic Univ. of America, Canon Law Studies No. 162, Washington, D. C., 1942). Galen, in three treatises related to embryology, accepted the thinking of Aristotle and his followers. Quay 426-427. Later, Augustine on abortion was incorporated by Gratian into the Decretum, published about 1140.…