People v. Sanchez, Hearsay, and Expert Testimony
| Jurisdiction | California,United States |
| Author | By Don Willenburg, Gary A. Watt, and John A. Taylor, Jr. |
| Citation | Vol. 31 No. 1 |
| Publication year | 2018 |
By Don Willenburg, Gary A. Watt, and John A. Taylor, Jr.
Arecent California Supreme Court decision in a criminal case "clarified" the rules regarding hearsay and expert witness testimony, and is making waves in civil practice. People v. Sanchez (2016) 63 Cal.4th 665 involved a gang expert, but its holding and rationale apply across the board to expert testimony generally. What counsel does not know about Sanchez could gut the testimony of an expert witness—and lose a case.
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Experts can base their opinions on matters "whether or not admissible," including hearsay. (Evid. Code, § 801.) And experts have to explain their reasoning, or else their opinions will be ineffectual or even inadmissible. (E.g., Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1120-1121.) Before Sanchez, courts regularly allowed experts to recount any and all hearsay bases for their opinions, accompanied by a limiting instruction to the jury that hearsay evidence relied on by the expert " 'should not be considered for [its] truth.' " (Sanchez, supra, 63 Cal.4th at p. 670.) "We'll get it in through our expert" has been a common refrain for lawyers facing hearsay problems with a critical piece of evidence.
No more. When it comes to case-specific facts, Sanchez recognized the logical fallacy of such a limiting instruction. "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." (Sanchez, supra, 63 Cal.4th at p. 682.) "[H]earsay ... problems cannot be avoided by giving a limiting instruction that such testimony should not be considered for its truth. If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay." (Id. at p. 684.) "[T]he 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." (Id. at pp. 682-683.)
Justice Brian Hoffstadt has likened this insight to an "Emperor's New Clothes" moment: "[T]he California Supreme Court in Sanchez held that case-specific facts forming the basis for an expert's opinion are, in fact, admitted for their truth." (Hoffstadt, Tailoring the Emperor's New Clothes, Daily J. (Aug. 14, 2017.)
Sanchez distinguished "background information" from "case-specific facts." (Sanchez, supra, 63 Cal.4th at p. 676.) "Background" hearsay testimony remains acceptable. (Id. at pp. 676, 685.) "[E]xperts may relate information acquired through their training and experience, even though that information may have been derived from conversations with others, lectures, study of learned treatises, etc." (Id. at p. 675, emphasis added.) The Court illustrated with a quote-worthy example: "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." (Ibid.) This is apparently a rule born more of practical necessity than of any statutory or doctrinal hearsay exception. (No one knows that Caesar conquered Gaul, or that Napoleon died on Elba, except via hearsay.)
But "case-specific" facts are different. While "[a]t common law, the treatment of an expert's testimony as to general background information and case-specific hearsay differed significantly ... the line between the two has now become blurred." (Sanchez, supra, 63 Cal.4th at p. 678.) Courts had come to allow some case-specific hearsay, while giving a limiting instruction to the jury that it is not to be considered "for its truth." Sanchez held that "this paradigm is no longer tenable because an expert's testimony regarding the basis for an opinion must be considered for its truth." (Id. at p. 679.) "Indeed, the jury here was given a standard instruction that it 'must decide whether information on which the expert relied was true and accurate.' ([CALJIC] No. 332 [Expert Witness Testimony].) Without independent competent proof of those...
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