In People v. Sanchez, 63 Cal. 4th 665 (2016), the California Supreme Court overruled its prior authority permitting an expert’s opinion to rely on case-specific facts even when such facts are hearsay. Sanchez turns on the fundamental reality that a jury “must consider expert basis testimony for its truth in order to evaluate the expert’s opinion.” (Emphasis added.)
Sanchez ended the legal fiction that any hearsay problems can be avoided by giving a limiting instruction that such testimony should not be considered for its truth. As Sanchez emphasized, “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, post-Sanchez, experts are still entitled to rely on hearsay as background in establishing and applying their expertise, but use of case-specific facts for the actual opinion turns on admissibility.
As is apparent, People v. Sanchez is a criminal case. In Sanchez, the defendant was charged and convicted with, among other things, active participation in a street gang and commission of a felony for the benefit of the gang. However, the gang enhancements rested in part upon the testimony of the prosecution’s gang expert, who relied on case-specific facts for which no admissible evidence had been admitted. This included the contents of various documents regarding defendant’s prior contacts with police.
The Supreme Court’s prior decision, People v. Montiel, 5 Cal. 4th 877 (1993), had taken a more relaxed approach to expert reliance on hearsay based on use of limiting instructions informing the jury that it could consider hearsay as going “to the basis” of the opinion but not for the truth. Under the Montiel rubric, courts could provide additional safeguards by exercising discretion to exclude hearsay found to be more prejudicial than probative. The upshot was that Montiel enabled courts to approach expert reliance on hearsay more loosely, so that “there was no longer a need to carefully distinguish between an expert’s testimony regarding background information and case-specific facts.” Sanchez, 63 Cal. 4th at 679.
As Sanchez put it, Montiel and similar decisions ignored the reality that “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.” As a result, when an expert wishes to testify to case-specific out-of-court statements to explain the bases for the opinion, then “like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception.” Id. at 686.
Did Sanchez really make the earth move in civil cases? Or can Sanchez be limited to criminal cases in light of the additional Sixth Amendment confrontation concerns? Structurally and textually, the Sanchez decision speaks to wide application. First, in its introduction, the Sanchez decision states that “in addition” to resolving the Sixth Amendment concerns, it “clarif[ies]the proper application of Evidence Code sections 801 and 802, relating to the scope of expert testimony.” Second, the court turned to the Evidence Code first, and without regard to any criminal/civil distinctions, notes that “an expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge.” Third, the court examined the legislative history of Evidence Code Sections 801 and 802, noting that enactment of these provisions incorporated “reliability of the evidence” as a “key concern” in the determination whether expert testimony may be admitted.
“Sanchez announced a ‘paradigm shift’ regarding how out-of-court statements used as expert testimony basis are treated under California hearsay law.” People v. Ochoa, 7 Cal. App. 5th 575, 588 (2017). And to date, three published and four unpublished Court of Appeal decisions have applied Sanchez in the civil context. All have interpreted it as barring an expert from giving opinions relying on case-specific facts that are inadmissible under the hearsay rule. Despite its criminal law facets, “Sanchez is not, however, limited in its application to criminal proceedings.” Conservatorship of K.W., 13 Cal. App. 5th 1274, 1282 (2017). The aspect of Sanchez “concerning state evidentiary rules for expert testimony applies in civil cases.” People ex rel. Reisig v. Acuna, 9 Cal. App. 5th 1, 34 (2017).
Is Sanchez really new? Sanchez states that “it has long been the rule that an expert may not under the guise of reasons [for the opinion] bring before the jury incompetent hearsay evidence.” And “though most jurists may find this a novel approach, the Supreme Court took pains to explain that the rule announced in Sanchez in fact ‘restores the traditional distinction between an expert’s testimony regarding background information and case-specific facts’ that had existed at common law and in the early California cases.” Universal-Products International, LLC v. Omega Products International, Inc., 2017 WL 1506742 at *10 (unpublished).
Since Sanchez is all about hearsay, a party can forfeit exclusion by failing to make timely objections. David v. Hernandez, 13 Cal. App. 5th 692, 704 (2017). And even if case-specific hearsay comes in through expert opinion despite such objections, harmless error analysis applies on appeal. Conservatorship of K.W., 13 Cal. App. 5th at 1286 (Sanchez error harmless); Acuna, 9 Cal. App. 5th at 36-37 (same). So far, none of Sanchez’s civil progeny has reversed on wrongful admission/exclusion of expert testimony involving case-specific facts.
Whether Sanchez is the new normal, or the not-so-new normal, greater scrutiny of expert testimony for hearsay is certainly a point of emphasis going forward. The time for being surprised that there is a new (or old) expert testimony game afoot has passed. In light of Sanchez, litigators need to be vigilant when it comes to expert testimony involving case-specific facts. Perhaps it’s time to brush up on the hearsay rule and its exceptions.