The opinion
Wendell L. Griffen, Judge, dissenting. Rule 803(18) of the Arkansas Rules of Evidence states:
The following are not excluded by the hearsay rale, even though the declarant is available as a witness:
(18) Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may he read into evidence hut may not be received as exhibits. (Emphasis added.)
I would hold that the trial court abused its discretion when it overruled appellants’ objection to the appellees use of enlargements of medical treatises and periodicals during direct and cross-examination of expert witnesses. Instead of counsel for appellees merely reading the statements from the treatises into the record when he questioned witnesses, he made enlargements of the statements and displayed them during the examination and cross-examination. Although it is true that the enlargements were not received as exhibits in a formal sense, I see no practical difference between receiving the enlargements as exhibits and what the trial court allowed.
Appellees’ argument that the use of an enlarged and emphasized statement from a learned treatise does not differ from use of enlarged deposition testimony during cross-examination is unpersuasive. The rules of evidence allow all prior inconsistent statements to be introduced as substantive evidence, in addition to their use for impeachment. But that applies to prior statements by the witness, not by a third-party non-witness who is neither present nor subject to cross examination. In this case, none of the excerpts involved prior inconsistent statements by the witnesses being questioned when the enlargements were displayed to the jury.
The essence of Rule 803(18) is that statements contained in published treatises, periodicals, or pamphlets which have been established as reliably authoritative may be read into evidence to the extent that those statements are called to the attention of a witness during cross-examination or relied upon by the witness in direct examination. Those statements are not, however, independently admissible as evidence. But for Rule 803(18), those statements would be deemed hearsay. Rule 803(18) avoids the hearsay problem by allowing them to be read into evidence during questioning but not received for display and publication to the jury. When they are read into evidence as provided by the Rule, the contents of learned treatises merely allow the jury to assess the credibility of a witness whose opinion is either inconsistent with or contradicted by a treatise the witness has acknowledged as authoritative on the subject about which the witness has testified.
But when the statements are published to the jury, the focus turns from the testimony of the witness and shifts to the treatise. In the present case, the jury did not need to see the words that were enlarged and prominently displayed on placards in order to know whether witnesses were presenting consistent or contradictory testimony. The transparent reason for enlarging the excerpts from the treatises was to get the contents of the treatises before the jury as substantive evidence. The fact that the enlargements were not marked with exhibit stickers and formally 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 § 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.