Expert Witness Testimony: What's All the Hype Over People v. Sanchez?

• Publication year: 2017
• Author: Melinda Sammis, Esq.

Expert Witness Testimony: What's all the Hype over People v. Sanchez?

Melinda Sammis, Esq.

Melinda Sammis specializes in divorce litigation, mediation consultation, and the drafting of complex pre- and postmarital agreements. She is certified by the California State Bar as a Family Law Specialist and regularly acts as a Settlement Master, Attorney for the Day, and Judge Pro Tem for the San Francisco Superior Court. As an Advisor to the State Bar's Executive Committee on Family Law (FLEXCOM), she is responsible for commenting on pending family law legislation in the State of California, including appearing in Sacramento to consult on changes to pending legislation. Ms. Sammis was a Member of FLEXCOM from 2013-2016 and served as Chair of the Education Committee.

Some family law attorneys say that People v. Sanchez, 63 Cal. 4th 665 (2016), is a game-changer. Others say it simply clarifies the law and is "much ado about nothing." Either way, the California Supreme Court has given us a bright line rule: when any expert relates to the jury case-specific, out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay.

People v. Sanchez was a criminal case. The expert was a policeman with gang expertise but who had never met the Defendant, had not seen the Defendant's past contacts with the police, and had no personal knowledge of such contacts. The issue was whether the expert's description of the Defendant's past contacts with police was inadmissible hearsay or non-hearsay because it was offered only as a basis for the expert's opinion and not for its truth.

Historically, "because Evidence Code section 802 allows an expert witness to 'state on direct examination the reasons for his opinion and the matter ... upon which it is based,' an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion."¹ This not-admitted-for-its-truth rule had long been followed with some limitations: 1) any material that forms the basis of an expert's opinion testimony must be reliable, and 2) courts must use their power to limit the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay.² Thus, trial courts were left with broad discretion to determine whether particular facts to which an expert was prepared to testify were sufficiently "reliable" to come before the jury and the court would instruct the jury not to consider the facts for their truth.

Under this paradigm, there was no longer a need to carefully distinguish between an expert's testimony regarding general background information and case-specific facts. The inquiry instead turned on whether the jury could properly follow the court's limiting instruction in light of the nature and amount of the out-of-court statements admitted. Because the standard for appellate review is abuse of discretion, the trial court's broad discretion went largely unchecked except in cases of marked abuse.

The Sanchez court began by recognizing that the hearsay rule has traditionally not barred an expert's testimony regarding his general knowledge in his field of expertise. The court stated, "This latitude is a matter of practicality. A physician is not required to personally replicate all medical experiments dating back to the time of Galen in order to relate generally accepted medical knowledge that will assist the jury in deciding the case at hand. An expert's testimony as to information generally accepted in the expert's area, or supported by his own experience, may usually be admitted to provide specialized context the jury will need to resolve an issue."³

However, the court stated that it "cannot logically be maintained" that case-specific statements are not being offered by the expert for their truth. When an expert relies on hearsay statements regarding case-specific facts, the court explained, there is a "flaw in the not-for-the-truth limitation" as follows: "When an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert's opinion, it cannot logically be asserted that the hearsay content is not offered for its truth. In such a case, 'the validity of [the expert's] opinion ultimately turn[s] on the truth' of the hearsay statement. If the hearsay that the expert relies on and treats as true is not true, an important basis for the opinion is lacking."⁴

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The court gave several examples illustrating the distinction between general knowledge and case-specific testimony, one of which was: "That an adult party to a lawsuit suffered a serious head injury at age four would be a case-specific fact. The fact could be established...