How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Zachary Your Own Question

Zachary
Zachary, Attorney
Category: Legal
Satisfied Customers: 3928
Experience:  Lead trial/International commercial attorney licensed 11 yrs
17219180
Type Your Legal Question Here...
Zachary is online now
A new question is answered every 9 seconds

Hello great friends, Calif. Evidence Code 712 (b)(3) The

Resolved Question:

Hello great friends,
Calif. Evidence Code 712 (b)(3)
The publication has been established as a reliable authority
by the testimony or admission of the witness or by other expert
testimony or by judicial notice.
If admitted, relevant portions of the publication may be read into
evidence but may not be received as exhibits.

QUESTION:
-What and Why is the difference between "EVIDENCE" and "EXHIBIT"? (I always understand that a publication is entered as evidence by the way of an exhibit)
-How do I "read into evidence" a portion of publication?

Many thanks/
Submitted: 2 years ago.
Category: Legal
Expert:  Zachary replied 2 years ago.
Hi,

I'd be happy to answer your question.

1. What is the difference between "Evidence" and an "Exhibit" in regard to the language of the rule cited above.

When something is ruled as evidence, that means it can be considered by the jury or judge and has been admitted as such by the court.

An exhibit is an actual piece of evidence that can be taken with the jury to the jury room when the case has gone to them to render a verdict.

In the language of the rule you cite above, we are talking about a publication that has been used by an expert as a foundation for his expert opinion. When the publication has been accepted as evidence, it may be read into the record, but the document itself is not given to the jury as an exhibit.

How you do that is you either ask the witness to read the part of the document that has been accepted as evidence, or you stand up and offer it yourself by stating "your honor, we wish to offer into evidence a portion of the publication that has been accepted under the rules of evidence."

That being said, the rule you are citing, 712, is not about expert publications. Rule 712 states the following:


EVIDENCE CODE
Division 6. Witnesses
Chapter 2. Oath and Confrontation

GO TO CALIFORNIA CODES ARCHIVE DIRECTORY

Cal Evid Code § 712 (2012)

§ 712. Blood sample affidavits



Notwithstanding Sections 711 and 1200, at the trial of a criminal action, evidence of the technique used in taking blood samples may be given by a registered nurse, licensed vocational nurse, or licensed clinical laboratory technologist or clinical laboratory bioanalyst, by means of an affidavit. The affidavit shall be admissible, provided the party offering the affidavit as evidence has served all other parties to the action, or their counsel, with a copy of the affidavit no less than 10 days prior to trial. Nothing in this section shall preclude any party or his counsel from objecting to the introduction of the affidavit at any time, and requiring the attendance of the affiant, or compelling attendance by subpoena.



The rule you are citing is not part of the California Rules of Evidence. Rather it is part of the Federal Rule of Evidence 803, which states:

(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:

(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.

If admitted, the statement may be read into evidence but not received as an exhibit.

Are you in federal court or state court? What is the purpose you are trying to read a documet into evidence and what is the document?

Thanks,
ZDN
Customer: replied 2 years ago.
This is the link to my cite: http://law.onecle.com/california/evidence/721.html

I am pro se plaintiff in a California court in an action for medical negligence and fraud.

The publication I have are articles written by researchers published on the internet by prestigious organizations like American Medical Association, American College of Surgeons. One article without name of author published by Univ of Missouri Medical School. They settle the question of when a hernia would truly "need" surgical repair.


QUESTION:

1) Are they admissible for trial by Calif Evidence Code -Chapter 2 (Exception to hearsay rule), Section1341

2) Can I avoid the high cost a live expert by citing these articles?

3) Do I need to have somebody verify their sources, e.g.: a librarian, a sworn witness, any doctor, etc.?

Many thanks/


Expert:  Zachary replied 2 years ago.
You mistranscribed the numbers in your question as 712 rather than 721.

The specific rule you are citing is a limitation on cross-examination of an expert witness. In other words, it states that you cannot ask the other side's expert witness questions about a outside publication (like a text book) unless that expert has cited the book or it is in evidence before the court.

In regard to your intended use of the articles, I'm afraid you won't be able to use them in this manner. Scholarly articles cannot be used to replace expert witness testimony.

Further, because you are in State Court, the rule I was referring to in my last answer is not applicable. Scholarly journals are not even excepted to the hearsay rule unless they are of a special breed. However, this is beside the point because to use the articles, you will have to have the other side admit that they are correct.

The usual way you do this is hire an expert to testify for your side, then you have him say the articles are correct and you use the articles to cross examine the other side's expert.

Customer: replied 2 years ago.
I'm sorry for such typing error.


1) But please check it out, the language of that law indicates that if the publication is of a general notoriety and made by a "person indifferent between the party", then it is permitted, isn't it?


2) Or please cite if U mean ultimately there is no way to avoid the cost of a live expert t unless the defense stipulates to the publication? If so, then can I compel defendant to comment on the publications because they are "relevant" to the dispute? (Because the general rule of evidence is that all "relevant" evidence is permissible) In other words, can defendant refuse to comment on the content of such articles (by invoking the equivalent of the infamous Fifth as the right not to self-incriminate?


3) Finally can I reduce the cost by obtaining an expert affidavit instead of having him come to court to testify in person.


Many thanks/

Expert:  Zachary replied 2 years ago.
Please see my responses to each number below:

1) If it is of "general notoriety" it is seen as an exception to hearsay, but that does not mean it is admitted as evidence over an objection that it is non-qualified expert opinion. If that was so, there would never be any experts, lawyers would just read from books. That's not the way it works.

2) You, as a party and a witness, can't simply stand up and say "I have an article from the American Medical Association journal that says a henia needs surgical repair". The court won't allow that, and it doesn't matter. In order to establish causation in a medical negligence and fraud case, you must have expert testimony that links your specific injury to the need for surgery. Simply stating that a respected journal states that some hernias need surgery is irrelevant to your case.

On the other hand, if your opponent's expert says that hearnia's should never be operated on, you then go:

Q: Do you agree that the AMA journal is a respected and accepted medical journal

Q: Do you agree that it is a reliable authority.

if he refuses, then you move the court to take judicial notice of the publication.

Then you ask the opposing expert questions.

"Dr., in the AMA journal it states that hernias should be operated on in x.y.z. circumstances, why do you disagree with that"

That is the only way you are going to be able to use these types of sources without an expert witness.

3) Affidavit v Live Testimony - An affidavit is not allowed in trial. The only way you can reduce the cost is to hire the expert and depose him. Then you can read the deposition into evidence at the trial rather than having him come live.
Customer: replied 2 years ago.
Yr A#1: But if it is "general notoriety", namely an article or a textbook excerpt about when a hernia in general would require surgery, then it falls into the exception to hearsay rule cited above, then why does it have to be brought in by an expert? An expert would repeat the same thing already stated in the article, just a waste of my money and everyone's time, isn't it? Or that law exists in theory but not in reality?


Yr A#2: U talk about the opponent's expert, but if he presents no expert (bcs no expert would support him), then can I cite the fact that he himself has copped out on the publications in order to move the court to take judicial notice of them.

By "judicial notice" do U mean to permit the publication?

THIS IS AN IMPORTANT Q., CAN U CITE?

Yr A#3: Do U mean the testimonies in deposition can be permitted as evidence in trial? Another guy before U said that the deponents have to come to court to repeat the testimonies. May be I have two conflicting information? I need your cite

(bonus for cites of course)


Many thanks/
Expert:  Zachary replied 2 years ago.
1. A document may not be hearsay and may still be inadmissible as evidence. Again, you will not be able to simply stand up and submit a magazine article into evidence regarding herniated discs. The standard that you have to meet is that you have to show why your particular injury needs to be operated on.

I'm an expert plaintiff's attorney and have done hundreds of trials involving herniated discs. While you have an AMA article which says that herniated discs require surgery, the article does not say EVERY herniated disc requires surgery. Both your oppposing counsel and the court know that, as these are not new topics. You have to get a doctor to say that your herniated disc will not improve on its own and that it requires surgery. Otherwise, you are not going to prove your case. The medical treatment connected to an injury must be reasonable and necessary to treat that injury. The law specifically states that this requires expert testimony to establish.

Now, there are several ways to get this expert opinion into evidence.

Are you seeking to have a surgery performed in the future (i.e., future medical expenses), or are you asking the jury to pay for a surgery which has already occurred?

2. Judicial Notice simply means that you say "Court, please take notice of this document. It is an AMA article and is of general notoriety. As such it is excepted to the bare against hearsay documents." This must be done in a written motion prior to trial.

3. For medical experts deposition testimony may be read in, as a general matter of practice. This isn't true for all witnesses, only for medical experts.

In regard to citations. These are basic principles of personal injury law. Why do you need a citation? Are you drafting a motion?
Customer: replied 2 years ago.
Yr A#1: Let's not focus on my particular issue. Not yet, bcs the focus will be shifted in 3 phases as follows:

PHASE 1 is to educate the jury about this disease (not hernia disc but inguinal hernia (bowel hernia) as taught in text book. That's why the "general notoriety" is permissible. The purpose is to give the jury a "general" (background) knowledge so that they can understand this case and the testimonies involved.

PHASE 2: I will ask the defendant whether he agrees to that publication (e.g. a textbook excerpt or an article published by a medical school). He has already testified consistently with these publication (of course, unless he wants to lose his license).


PHASE 3 shall shift the focus on to this particular case whether defendant did his job consistently to the publication that he himself agrees to as correct.



But the problem is that his attorney blocks PHASE 2 by preventing him from commenting on the publications on grounds that he is not offering his expert testimony.


QUESTION A: Does he have the right to remain silent in order avoid self-incrimination as allowed by the ugly Fifth? In other words, am I right that in civil litigation one does not have such right but one must answer all relevant questions?


QUESTION B: If he insists on silence, then can I seek "judicial notice" to permit the publication for the purpose of educating the jury as a matter of "general notoriety?


QUESTION C: Can I later point out to the jury that his cop- out on the relevant information indicates guilt?


Many thanks/


Expert:  Zachary replied 2 years ago.
Question 1: If you are asking the Defendant about it, then it doesn't matter whether or not he agrees. You have to prove your case. Whether the Defendant admits anything regarding the article doesn't matter, and you won't be allowed to ask such a question, as it lacks foundation.

Question B: You are still not hearing me when I say you simply can't just read an article from a medical journal.

Question C: You mistake the burden of proof. If you are the plaintiff in a civil lawsuit, you have to prove that the Defendant is liable, not that he is guilty. And if you are trying to prove that the Defendant caused an herniated disc that needs to have surgery, then you have to prove this through medical expert testimony.

Zachary, Attorney
Category: Legal
Satisfied Customers: 3928
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 6 other Legal Specialists are ready to help you
Customer: replied 2 years ago.
Many thanks/

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it. Lee Michigan
 
 
 

Meet The Experts:

 
 
 
  • Tina

    Lawyer

    Satisfied Customers:

    8436
    JD, BBA Over 25 years legal and business experience.
< Last | Next >
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Lawyer

    Satisfied Customers:

    8436
    JD, BBA Over 25 years legal and business experience.
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    19941
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
  • http://ww2.justanswer.com/uploads/FL/FLAandNYLawyer/2012-1-27_14349_3Fotolia25855429M.64x64.jpg FiveStarLaw's Avatar

    FiveStarLaw

    Attorney

    Satisfied Customers:

    8189
    25 years of experience helping people like you.
  • http://ww2.justanswer.com/uploads/jespoag/2008-12-17_222355_jessepic.jpg JPEsq's Avatar

    JPEsq

    Attorney

    Satisfied Customers:

    2132
    Experience as general attorney, in house counsel, SSDI, Family Law attorney, and law professor
  • http://ww2.justanswer.com/uploads/gsenmartin/2008-04-22_214950_me1.jpg Guillermo J. Senmartin, Esq.'s Avatar

    Guillermo J. Senmartin, Esq.

    Attorney

    Satisfied Customers:

    110
    7+ years of experience handling various legal matters.
  • http://ww2.justanswer.com/uploads/PA/PaulmoJD/2013-10-10_195858_JAImage.64x64.jpg Law Educator, Esq.'s Avatar

    Law Educator, Esq.

    Attorney

    Satisfied Customers:

    31621
    JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
  • http://ww2.justanswer.com/uploads/dkaplun/2009-05-17_173121_headshot_1_2.jpg Dimitry K., Esq.'s Avatar

    Dimitry K., Esq.

    Attorney

    Satisfied Customers:

    15975
    Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
 
 
 

Related Legal Questions