Intro to the Federal Rules of Evidence - 64

10. Others
a. Learned Treaties (FRE 803(18))
i) Justification
It is trustworthy because “the treatise is written primarily and impartially for professionals, subject to scrutiny and exposure for inaccuracy, with the reputation of the writer at stake” (ACN).

ii) Expert must be on the stand
When the treaties are read into evidence, an expert must be on the stand. Because a treatise written for professionals might be misunderstood or misused by a lay jury, the expert’s presence is needed to interpret it before the lay jury relies on it.

iii) Not admitted as exhibit
Even if all of the requirements are met, the treatise may not be admitted as an exhibit. It is designed to prevent the jury from misunderstanding and misusing a work written for professionals.

iv) Reliability
The proponent of a treatise bears the burden of showing that it is indeed generally reliable: (1) by the witness himself; (2) by another expert; (3) by judicial notice.

b. Market reports, commercial publications (FRE 803(17))
The impartiality and reliability of such publications are recognized.

The proponent of such a document bears the burden of showing that it is indeed generally reliable.

c. Ancient documents (FRE 803(16))
i) Justification
This exception can be justified on several grounds: (1) since a document is required, there is at least the somewhat greater assurance of reliability that comes from a written, rather than oral, out-of-court declaration; and (2) the requirement of 20-years-of-age makes it very likely that the writing predates the present controversy, thus moving a motive for the writer to have lied.

ii) First-hand knowledge required
Though it is not explicitly required, it is interpreted to be required since the requirement of first-hand knowledge is interpreted to be applicable to all of the FRE 803(3) exceptions.

d. Statements in documents affecting an interest in property (FRE 803(15))
This exception is applicable to wills, deeds, contracts to sell real estate, and to contracts and bills of sale affecting personal property.