Statements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing may be used in cross-examination of an expert witness if the expert witness recognizes the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative, or, notwithstanding nonrecognition by the expert witness, if the trial court finds the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative and relevant to the subject matter.
Fla. Stat. § 90.706 — Authoritativeness of literature for use in cross-examination
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Using Books to Question Experts: This statute allows a lawyer to use statements from published books, articles, and other scholarly writings (often called "learned treatises") during the cross-examination of an expert witness. This is a powerful tool to challenge an expert's opinion by showing that it contradicts established literature in their field.
Limited Purpose - Impeachment Only: It is crucial to understand that the statements from the treatise are **not** considered substantive evidence (they don't prove the truth of what they say). They can only be used to impeach the credibility of the expert witness by confronting them with a contrary authoritative opinion.
How to Establish a Publication is "Authoritative": Before a lawyer can use a publication, they must show that it is a recognized and reliable authority in the field. There are two ways to do this:
- The Expert Agrees: The lawyer can ask the expert on the stand, "Do you recognize this book by Dr. Smith as an authoritative text in your field?" If the expert says yes, the foundation is laid.
- The Judge Decides: Even if the expert refuses to recognize the publication, the lawyer can still ask the judge to find that it is authoritative. This is usually done by presenting other evidence, such as testimony from the lawyer's own expert or by showing the publication's widespread acceptance in the industry.
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Cite as Fla. Stat. § 90.706 (2024)
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