Law must be stable, and yet it cannot stand still. This quote from Roscoe Pound is the bare essence of this case and the primary challenge to the law in the face of new technologies. As written, the Federal Rules of Evidence provide an exception to the hearsay rule at 803(18) for “statements contained in published treatises, periodicals, or pamphlets.” But what happens to this rule when those same statements are not confined to paper but appear in other media forms such as audio or video files?

What happens is the stable law has to be given a nudge forward by the courts so that it does not stand still. Our legislative system is designed to be slow. Great problems require slow and meticulous deliberation but in the end decisions have to be reached one way or the other.

In Costantino v. Herzog, 203 F.3d 164 (2nd Cir. 2000), the court had to decide between the spirit or letter of the law; whether to move the law forward into the 21^st century or leave it stagnant in the 19^th when lights were new.

At issue was an instructional videotape concerning difficult deliveries of babies. The Federal Rules of Evidence make an exception to the hearsay rule for learned treatises, but in the past that has been held to only apply to the written word. The court here had to determine if the technological advancement of videotape qualified as a learned treatise exception.

The court found that the learned treatise exception did apply to the videotape for the simple reason that, “We see no reason to deprive a jury of authoritative learning simply because it is presented in a visual, rather than printed, format. In this age of visual communication a videotape may often be the most helpful way to illuminate the truth in the spirit of Rule 102.”

This may be a simple, straightforward case, but the implications are not so simple. The moral of the case, if you will, is that when dealing with technology there often are not any preexisting rules and regulations, so be prepared to argue for expansion or limitation (depending on what side you are on) rather often in your career. And do not be afraid to ask the courts to expand a rule into an area not specifically talked about within the rule.

In other words, it is easier to ask forgiveness than ask permission.