Rule 706 Learned Treatises for Impeachment.
The common law rule restricted the use of a learned treatise to impeachment. See Hallworth v. Republic Steel Corp., (1950) 153 Ohio St. 349, 91 N.E.2d 690 (syllabus, para. 2) ("Medical books or treatises, even though properly identified and authenticated and shown to be recognized as standard authorities on the subject to which they relate, are not admissible in evidence to prove the truth of the statements therein contained."). When the Rules of Evidence were adopted in 1980, Ohio rejected Federal Evidence Rule 803(18), which recognizes a hearsay exception for learned treatises. Consequently, the common law impeachment rule continued, under Evid.R. 102, as the controlling precedent in Ohio. See Ramage v. Cent. Ohio Emergency Serv. Inc. (1992), 64 Ohio St.3d. 87, 110, 592 N.E.2d 828 ("In Ohio, textbooks and other learned treatises are considered hearsay, may not be used as substantive evidence, and are specially limited to impeachment purposes only.").
This new Rule of Evidence codifies the common law rule, making it more readily accessible for trial use. The syllabus in Hallworth referred to treatises "recognized as standard authorities," without requiring reliance by the expert. In a post-Rules case, the Supreme Court wrote: "[I]n Ohio, a learned treatise may be used for impeachment purposes to demonstrate that an expert witness is either unaware of the text or unfamiliar with its contents. Moreover, the substance of the treatise may be employed only to impeach the credibility of an expert who has relied upon the treatise, . . ., or has acknowledged its authoritative nature." Stinson v. England (1994), 69 Ohio St.3d 451, 458, 633 N.E.2d 532.
A possible expansion of the common law rule concerns the use of judicial notice to establish the treatise as a reliable authority. A court taking judicial notice of Gray's Anatomy illustrates this aspect of the rule.
The trial court decides under Evid.R. 104(A) if the treatise is a "reliable authority" and Evid.R. 105 requires a limiting instruction upon request. If an opposing expert witness refuses to recognize a treatise as reliable, the judge may permit the impeachment subject to counsel's subsequent laying of the foundation through its own expert. There is no need to inform the jury of the trial court's determination.
Rule 706 Learned Treatises for Impeachment Evid.R. 706 is repealed, effective July 1, 2006, in light of the adoption of Evid.R. 803(18).
