Hearsay ruling will affect civil cases, too

A new California Supreme Court decision has "clarified" the rules for expert witness testimony in ways that may require changes in practice. People v. Sanchez, 2016 DJDAR 6570 (June 30, 2016), is a criminal case involving a gang expert, but the analysis will apply in civil cases as well.

Traditionally, experts can base their opinions on matters that may not be admissible in evidence, including hearsay. Courts have allowed experts to recount the hearsay bases for their opinions, when accompanied by a limiting instruction to the jury that it is not to be considered for its truth. Sanchez recognizes that "jurors cannot logically follow" such an 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."

The court distinguished "background information" from "case-specific facts." "[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." The court illustrated with an example that is sure to be widely quoted: "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."

But facts specific to the case at hand 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." Instead, courts have allowed some case-specific hearsay, under the rationale that this is acceptable so long as there is a limiting instruction to the jury, with Section 352 as a backup objection if anything goes too far astray. 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 by the jury."

Sanchez is not a complete break with prior law. "Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so." "There is a distinction to be made between allowing an expert to describe the type or source of the matter relied upon as opposed to presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception." This distinction makes all the difference. "What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception."

In Sanchez, the witness was an expert on criminal street gangs, who (no surprise) opined that the crime was for the benefit of a gang. He testified that his opinion was based in part on "STEP notices," which are warnings given by police to individuals reported to have associated with known gang members, and "FI" cards, which are the officers' written record of contacts with an individual. "[W]hen the gang expert testified to case-specific facts based upon out-of-court statements and asserted those facts were true because he relied upon their truth in forming his opinion, he was reciting hearsay." The court thereupon reversed the gang enhancements.

What is background and what is case-specific may not always be as clear as Sanchez might suggest. For example, in a product liability case, what a defendant "should have known" about risks at some point in the past is typically addressed by experts on what was known generally in the industry. Is that background, or is that attempting to prove a case-specific fact about this defendant? In a gang case, that a certain tattoo designates a member of a particular gang can hardly be considered mere "background" if the defendant has the same tattoo.

Sanchez also does not explicitly address the existing statutory framework for plumbing "the matters upon which [the expert's] opinion is based," which under Evidence Code Section 721 is at cross-examination only and not direct. Is cross-examination on such matters now a waiver of the hearsay objection? Does it require the same kind of limiting instruction that Sanchez found illogical?

For all the possible heartburn Sanchez may create, it also showed two ways around the "new" rule. One if is the evidence comes under an exception to the hearsay rule. Another, more generally within the control of counsel, is to ask hypothetical questions. "[T]he evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner."

Two matters of side interest about the case. First, as noted above, it is a criminal case involving the confrontation clause. The hearsay aspect, however, applies in civil cases with at least as much force (maybe more, because confrontation clause jurisprudence does not automatically exclude hearsay; only if it is "testimonial" in nature, a separate inquiry). Second, the decision borrows liberally from a concurring opinion by U.S. Supreme Court Justice Clarence Thomas in the 2012 decision Williams v. Illinois. Thomas and California's high court may see many issues differently, but they saw eye to eye on this one.

Don Willenburg is chair of the Appellate Practice Group at Gordon & Rees, working from the Oakland office.