Answer Brief of Appellee - Florida State University College of Law

evidence. See, Green v. Goldberg, 630 So. 2d 606, 609 (Fla. 4th
DCA 1993); Chorzelewski v. Drucker, 546 So. 2d 1118 (Fla. 4th
DCA 1989). Instead, Florida law restricts the use of a learned
treatise to cross-examination only. See, § 90.706, Fla. Stat.
When used as substantive evidence (as is the case here), a
treatise is hearsay that does not come within any exception.
See, § 90.803, Fla. Stat. 33 The fact that the treatises at issue
in this case were used in the context of a Frye hearing does not
make any difference -- the Rules of Evidence still apply, and
the trial court ignored them.
CONCLUSION
Based on the foregoing arguments and authorities, Appellee
respectfully requests this Honorable Court affirm the sentence
of death. With respect to the Cross-Appeal, the State submits
that the PET scan was erroneously admitted into evidence.
Respectfully submitted,
CHARLES J. CRIST, JR.
ATTORNEY GENERAL
____
KENNETH S. NUNNELLEY
SENIOR ASSISTANT ATTORNEY GENERAL
Florida Bar #0998818
444 Seabreeze Blvd., 5th FL
Daytona Beach, FL 32118
(386) 238-4990
Fax # (386) 226-0457
33
Federal Rule of Evidence 803.18 contains a learned treatise
exception -- the Florida rules do not.
52