People v. Malik—the "flip Side" of Sanchez?

• Publication year: 2018
• Author: By Benjamin M. Beltramo

PEOPLE V. MALIK—THE "FLIP SIDE" OF SANCHEZ?

By Benjamin M. Beltramo^*

On June 30, 2016, the California Supreme Court issued a decision that seismically shifted the landscape of expert witness testimony at trial. In People v. Sanchez (2016) 63 Cal.4^th 665, the Court considered the extent to which Crawford v. Washington (2004) 541 U.S. 36 ( Crawford) limits an expert witness from relating case-specific hearsay in explaining the basis for an opinion. In Crawford, the United States Supreme Court held that the Confrontation Clause bars the admission of out-of-court testimonial hearsay statements except when "the declarant is unavailable . . ." and the defendant "had a prior opportunity to cross-examine" the declarant. (Crawford, supra, 541 U.S. at p. 59.) The Sanchez decision held that the case-specific out-of-court statements conveyed by the prosecution's gang expert constituted inadmissible hearsay under state law and, to the extent they were testimonial, ran afoul of Crawford. (Sanchez, supra, 63 Cal.4^th at pp. 670-671.)

The Sanchez decision ushered in a dramatic pivot in the analysis of how judges and criminal practitioners should treat expert basis evidence. Prior to Sanchez, the prevailing precedent held that such out-of-court statements conveyed by an expert were not hearsay at all, since they were not offered for the truth of the matter asserted, but were only offered and admitted as the basis of an expert's opinion. (See People v. Thomas (2005) 130 Cal.App.4^th 1202, 1210; People v. Gardeley (1996) 14 Cal.4^th 605, 619-620.) Thus, experts routinely testified about interviews they had conducted with relevant subjects, reports they had read, and witness accounts they had considered in reaching their opinion—with a limiting instruction from the court that these out-of-court statements were only admitted as basis evidence and not for their truth. But the Sanchez court took issue with this evidentiary interpretation, instead holding:

"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. It cannot logically be maintained that the statements are not being admitted for their truth." (Sanchez, supra, 63 Cal.4^th at p. 687). The Sanchez court went on to find that if such erroneously admitted statements are "testimonial" under Crawford there is a Confrontation Clause violation. (Id. at p. 686.) Reviewing a lineage of post-Crawford cases, the California Supreme Court concluded that hearsay statements are testimonial if they are made "primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Id. at p. 689.)

The Sanchez court made clear that its decision, "does not affect the traditional latitude granted experts to describe background information and knowledge in the area of his expertise." (Sanchez, supra, 63 Cal.4^th at p. 685.) The court also observed that its holding does not prevent experts from relying on hearsay in forming an opinion and telling the jury the type of matter relied upon: "An expert may rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. Because the jury must independently evaluate the probative value of an expert's testimony, Evidence Code section 802 properly allows an expert to relate generally the kind of source of the 'matter' upon which his opinion rests." (Id. at p. 686.)

In light of Sanchez, trial courts must now consider whether an expert's basis testimony includes "case-specific facts," that is, "those relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4^th at p. 676.) If the answer is in the affirmative, and the expert is the treating the content of those statements as true and accurate to support her opinion, then such statements are inadmissible hearsay. For a reviewing court, the next question is whether such erroneously admitted hearsay statements...