dissenting:
The majority opinion has concluded that it was reversible error to allow the prosecutor to cross-examine witness Fair less through references to the manual entitled Basic Training Program for Forensic Drug Chemists. In my opinion the use of this manual for cross-examination was entirely proper and I therefore respectfully dissent.
The premise upon which the conclusion of the majority opinion rests is that the authoritative nature of this manual as a learned treatise was not established in the trial court. As this premise falls, so does the conclusion which is based upon it.
The majority opinion correctly points out that the leading case in Illinois on the subject of the cross-examination of expert witnesses through the use of learned treatises is Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326, 211 N.E.2d 253. In that case the Supreme Court stated:
“An individual becomes an expert by studying and absorbing a body of knowledge. To prevent cross-examination upon the relevant body of knowledge serves only to protect the ignorant or unscrupulous expert witness. In our opinion expert testimony will be a more effective tool in the attainment of justice if cross-examination is permitted as to the views of recognized authorities, expressed in treatises or periodicals written for professional colleagues. [Citation.] The authors competence is established if the judge takes judicial notice of it, or if it is established by a witness expert in the subject.” (Emphasis added.) 33 Ill. 2d 326, 336, 211 N.E.2d 253, 259.
As the emphasized portion of this quotation clearly indicates, in this State there are two acceptable methods of establishing a treatise as a proper subject for use on cross-examination of an expert witness. The treatise can properly be used if the trial court takes judicial notice of its authoritativeness in the field or if the party seeking to use it produces an expert witness who testifies that the work has been prepared by an authority in the field.
The manual in question was prepared by the Federal Bureau of Narcotics and Dangerous Drugs. On the title page of the manual appear the names of John W. Gunn, Jr., the Chief of the Bureau, and Roger Kenneth. Obviously, the fact that their names appear there means that the manual was written for the Bureau of Narcotics either by them or under their direction, supervision, or authority, or with their approval. Daniel Lecocq, the supervising criminalist for the Illinois Bureau of Identification, who testified as an expert witness for the State in the instant case, stated that he recognized Gunn and Kenneth as authorities in the field of LSD analysis. It can hardly be more clear that Lecocq’s testimony brought the manual squarely within the Darling rule.
The expert witness testifying for defendant in the instant case, cross-examined through the use of this manual, was Billie Fairless. Mr. Fairless made it clear that his field of expertise was environmental pollution, not narcotics or dangerous drugs. He admitted on cross-examination that he was, at the time of the trial, on leave from the Federal Environmental Protection Agency and that his duties with that agency mainly involved the analysis of “[g]ases and sewage and soil pollution.” Although Fairless stated that he was not familiar with John W. Gunn, Jr. or Roger Kenneth, he agreed that the Federal Bureau of Narcotics and Dangerous Drugs is an authority with respect to LSD analysis.
Considering Mr. Fairless’ field of expertise, it is understandable that he would not be familiar with Gunn or Kenneth. But Fairless’ lack of familiarity with those two men in no way detracts from the identification of Gunn and Kenneth by Lecocq, the State’s expert witness, as authorities in the field.
The majority opinion concludes that because the purpose of the Federal Bureau of Narcotics was to carry out Federal investigations and enforcement of narcotics laws, the manual in question “was written with a view towards litigation involving the prosecution of defendants accused of drug related crimes.” The majority opinion then states that “the record discloses no indication that this manual was ‘written for professional colleagues’ as contemplated by Darling 9 9 9” and points out that the manual contains a printed restriction which indicates that the manual is for the confidential use of law enforcement personnel. In the opinion of the majority these factors indicate that the manual lacks the trustworthiness necessary for its use on cross-examination as a learned treatise. The premise of the majority that the manual was “written with a view toward litigation involving prosecution * 9 °” is not well taken. It would be equally correct to say that the manual was written with a view toward preventing litigation for the processes described will disclose innocuous substances as well as narcotics and dangerous drugs.
Obviously, because the manual in question deals with the chemistry of narcotics and dangerous drugs, such as LSD, it should not be distributed to the public in general or to all chemists in general. The government certainly has a legitimate interest in controlling the dissemination of the type of information appearing in the manual. But the limited distribution of the book does not detract from its trustworthiness. It is sufficiently authoritative to serve as a guide for forensic chemists in the performance of laboratory tests and chemical analysis to determine the presence of dangerous drugs in suspect substances. The tests are necessarily neutral, dependent upon chemical and physical reactions when suspect substances are submitted to analysis. The very processes involved, that is, chemical and physical interaction, lend credence to the notice that the manual is necessarily authoritative. The interplay of chemicals when combined or subjected to physical tests can be “authored” only by laws of nature. Chemists can but collate test results. That is essentially the makeup of the manual in question.
Furthermore, the mere fact that the purpose of the Federal Bureau of Narcotics was to carry out Federal investigations and enforcement of narcotics laws does not support the conclusion that this manual was written with a “view towards a litigation” in the sense that the phrase is contemplated by VI Wigmore on Evidence §1692. The manual was written for the purpose of analyzing drugs to determine if they are illicit drugs. The fact that some person or persons may be arrested or prosecuted because of the analyses outlined in the manual is only indirectly related to the purpose for which the manual was written. In my opinion, this manual can no more be considered as written with a “view to a litigation” than could, for example, an authoritative text on the medical treatment of common industrial injuries. Such a text would, no doubt, often be referred to in litigation arising from industrial injuries; but it can hardly be said that the purpose of the text is anything other than medical treatment.
As Wigmore explains, the ordinary requirement of trustworthiness, which is necessary for an exception to the hearsay rule to be recognized, is fulfilled when the declarant has no “motive to misrepresent.” (VI Wigmore on Evidence §1692.) I am not willing to ascribe to the Federal Bureau of Narcotics a “motive to misrepresent” in the publication of the manual in question. It is only through such an ascription that the majority opinion has reached the conclusion that it has.
As the Darling opinion points out, “[t]o prevent cross-examination upon the relevant body of knowledge serves only to protect the ignorant or unscrupulous expert witness.” (33 Ill. 2d 326, 336, 211 N.E.2d 253, 259.) In my opinion, refusing to let an expert witness testifying in a case involving illicit drugs, whose field of expertise is environmental pollution, to be cross-examined through the use of the manual in question can only serve to afford the type of protection which Darling is aimed at removing.
I would affirm.