The Learned Treatise Doctrine in Illinois

In Illinois the Supreme Court adopted the “Illinois Rules of Evidence.”  They are found here. As a practitioner, it is nice to have what is supposed to be the law on evidence spelled out in a simple document.

I had the honor of attending the committee meetings and speaking about an objection to the way they were drafted on a certain technical issue.  At the committee the people who drafted the rules indicated that they were not meant to change Illinois law on evidence. In other words, the rules are supposed to describe existing evidence law, not create new law.

Since the Supreme Court adopted the rules I was concerned about the “Learned Treatise” doctrine. Now for those of you who do not know what I mean by the learned treatise doctrine, in federal court and in Illinois prior to the adoption of the Illinois Rules of Evidence, a lawyer was allowed to impeach a witness who testified inconsistently with an authoritative document described in the law as a learned treatise. The theory is that if a book on the subject is authoritative and the witness testifies inconsistently, either the witness does not know what they are talking about or the witness may not be completely honest.

However, the new evidence rules made it look like the Learned Treatise doctrine was questionable in Illinois.  Here is what the Illinois Supreme Court rules say about the learned treatise doctrine at the beginning commentary.

“Also reserved are Rules 803(1) and 803(18), because Illinois common law does not recognize either a present sense impression or a learned treatise hearsay exception.”

Additionally, at Rule 803, where you would expect to find the learned treatise doctrine, one finds the word “reserved” which I took to mean that the court had reserved writing anything about the learned treatise doctrine as Illinois was unclear.

There is an appellate court case now that addresses the issue. I should point out that this is not a Supreme Court case, so the Supreme Court can do as it pleases. Nevertheless, it is nice to have some authority on the issue following the adoption of the Illinois Supreme Court Rules. I should also add that the appellate court that addresses the Learned Treatise doctrine issue does not discuss the Illinois Supreme Court Rules on the issue. I do not know if the court and the litigants missed the language in the Supreme Court Rules of Evidence or if the appellate court just failed to mention it in the opinion.  The case of I’m talking about is called Fragogiannis v St. Francis Health  2015 IL. App (1st) 142706 and it is found here.

Fragogiannis involves a medical malpractice and wrongful death case, but the facts of the case are not important in this discussion. However, the court holds that medical literature can be used in cross-examination, but not as substantive evidence. The case cites the Federal Rules of Evidence as authoritative even though they are not Illinois law. Fragogiannis says that there is no requirement that adverse witnesses conceded that the book is authoritative. Instead, a witness may testify that the text is “standard,” “well respected,” “a very good book,”, a “standard book” or “a good source.”  The case also says that materials like videotapes may be properly used on cross examination of a witness.

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