Putting Learned Treatises Under the Microscope:

Assessing the Rule 803(18) Hearsay Exception and the

Reproducibility Crisis in Social Science

by William E. Braff

By expanding the Daubert standard to expert testimony in all fields, including social sciences, the Supreme Court's decision in Kumho Tire embraced reproducibility and reliability as general benchmarks for expert admissibility. These changes are reflected in Federal Rule of Evidence 702, which was updated post-Daubert to incorporate the Daubert factors for evaluating expert witness testimony. This article argues that the reproducibility crisis in the behavioral and social sciences demands that currently overbroad admissibility of expert testimony be scrutinized, particularly when using Federal Rule of Evidence 803(18) to admit a learned treatise. For attorneys and judges seeking fair procedures for exposing evidence to jurors, reforming the learned treatise exception is a simple step that could limit the unfair prejudice of evidence being presented as scientifically accurate despite lacking the hallmark reliability of science.