Tailoring the Emperor’s New Clothes

Precedent sometimes rests upon a legal fiction, and persists until a later decision exposes the fiction for what it is. People v. Sanchez, 63 Cal. 4th 665 (2016) exposed as a fiction the long-held position that out-of-court statements admitted to explain the basis for an expert witness’ opinion are not admitted for their truth. But what happens after such a revelation? That is what the California courts are struggling with addressing right now.

The fiction that Sanchez exposed started humbly enough.

Unlike a lay witness, expert witnesses may offer opinions based on inadmissible evidence, at least if it is “of a type that reasonably may be relied upon” by experts in that field. Evid. Code Section 801(b). The reason for this rule is a practical one. Experts are experts because of their “special knowledge, skill, experience, training and education,” id., and that expertise is learned from others — whether from books or from conversations. Absent a rule allowing experts to rely upon this inadmissible hearsay, there would be no expert testimony because doctors or engineers would otherwise be barred from testifying unless they “personally replicate[d] all ... experiments dating back to the time of Galen [or Newton].” Sanchez, at 675.

Of course, what makes expert witnesses helpful — and their testimony relevant — is the marriage of their general expertise with the specific facts of the case in which they testify. Was this particular robbery committed “for the benefit of, at the direction of, or in association with a[] criminal street gang”? Pen. Code Section 186.22(b)(1). Does this particular defendant have a “diagnosed mental disorder that makes [him] a danger to the health and safety of others in that it is likely that he ... will engage in sexually violent criminal behavior”? Welf. & Inst. Code Section 6600(a).

But this leads to the question: When, and to what extent, may experts share with the trier of fact the case-specific facts they are relying upon to form their opinions? If those facts come from out-of-court statements (such as police reports or medical records), then they are hearsay if they are admitted for their truth. Evid. Code Section 1200(a).

For decades, the California courts, like their federal counterparts, generally allowed experts to recount the case-specific facts they relied upon in forming their opinions. See People v. Coleman, 38 Cal. 3d 69, 92 (1985); People v. Montiel, 5 Cal. 4th 877, 918-19 (1993); see Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1262 (9th Cir. 1984).

How did they justify this general rule? The courts held that those case-specific facts were not being admitted for their truth, but rather as the basis for the expert’s opinion. This was considered a non-hearsay purpose. So viewed, case-specific facts had two purposes: a non-hearsay purpose (that is, for their effect on the expert’s opinion) and a hearsay purpose (that is, as independent proof of the facts themselves). By giving an instruction limiting the jury’s use of the case-specific facts recited by the expert to their non-hearsay purpose, courts could “cure any hearsay problem” except in “aggravated situations” where, under Evidence Code Section 352, the danger that the jury would consider the facts for their truth was too great for an instruction to eliminate. Coleman, at 92; Montiel, at 919; People v. Dean, 174 Cal. App. 4th 186, 198-200 (2009).

Like the little boy in the Hans Christian Anderson tale who pointed out that the Emperor was naked and that his New Clothes were a fiction, the 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.

Drawing upon the agreement of five concurring and dissenting justices in Williams v. Illinois, 567 U.S. 50 (2012), Sanchez ruled that the case-specific facts an expert relies upon are necessarily admitted for their truth: If those facts are not true, Sanchez reasoned, then the expert’s resulting opinion would not be relevant. Because there is no non-hearsay reason for admitting these statements, Sanchez concluded, courts cannot sidestep hearsay problems with a limiting instruction.

Recognizing that a holding barring all hearsay relied upon by experts would create the practical problems noted above, Sanchez sought to re-establish the line between permissible and non-permissible hearsay that had, in its estimation, become “blurred.” Under this new paradigm, experts “may still rely on hearsay in forming an opinion.” Sanchez, at 685. What Sanchez curtailed was experts’ ability to “supply” that hearsay as evidence. Sanchez permits an expert to (1) explain “background information regarding his knowledge and premises generally accepted in his field,” and (2) “tell the jury in general terms” that his opinion relies on hearsay. Id. at 685-86. But Sanchez does not allow an expert to “relate as true case-specific facts” — that is, facts “relating to the particular events and participants alleged to have been involved in the case being tried” — “asserted in hearsay statements” unless those statements are “properly admitted through an applicable hearsay exception” or “are covered by a hearsay exception.” Id. at 676, 684, 686.

Because Sanchez did not wholly repudiate an expert’s ability to rely upon or to supply case-specific facts that are hearsay, Sanchez’s renunciation of the non-hearsay fiction has left the Emperor with some clothing. The courts are in the midst of tailoring those tatters. This tailoring is particularly important because Sanchez’s holding is not limited to gang experts or even to experts in criminal cases. So far, it has been applied in sexually violent predator cases, People v. Roa, 11 Cal. App. 5th 428 (2017); People v. Burroughs, 6 Cal. App. 5th 378 (2016), in conservatorship cases, Conservatorship of the Person of K.W., 2017 Cal. App. LEXIS 678 (2017), and in cases involving post-insanity verdict hospitalization, People v. Jeffrey G., 2017 Cal. App. LEXIS 619 (2017). But Sanchez conceivably affects experts in all cases.

There are two areas where the tailors are currently tinkering.

First, Sanchez sets forth two principles that could end up on a collision course. On the one hand, Sanchez says an expert may “rely on hearsay in forming” her opinion and can “tell the jury in general terms” that her opinion relies on hearsay. On the other hand, Sanchez says an expert may not “relate as true case-specific facts.” Under these principles, a gang expert would seemingly be able to testify, without more, that “Defendant X is a gang member” (because that is just his opinion). Conversely, the expert would not be able to testify “Defendant X is a gang member because that is what he told Officer Y, as reflected in Officer Y’s police report” (because that would relate case-specific facts not covered by a hearsay exception). But what if the expert testified, “Defendant X is a gang member, and I know this based upon my review of police reports” or, as was the case in one unpublished case, “based upon Department resources”? See People v. Vega-Robles, 9 Cal. App. 5th 382 (2017) (expert may testify he received information from “informants”). Does this statement (permissibly) convey the basis for the expert’s opinion “in general terms” or (impermissibly) “relate as true case-specific facts”?

This uncertainty ostensibly leads to a counter-intuitive result. Although specifics would ostensibly be more helpful to a jury in evaluating an expert’s opinion, Sanchez — as described above — links admissibility to generality. Prosecutors will aim to elicit no more than the expert’s opinion and an assertion that the expert relied “in general terms” on the hearsay found in police reports and the like. Doing so is more likely to place the testimony in Sanchez’s safe harbors. And defense attorneys will be reluctant to probe for greater specificity: They would be inviting error if they are the ones to elicit the case-specific facts, see People v. Gutierrez, 28 Cal. 4th 1083, 1139 (2002), and those facts could well be harmful to the defense.

Second, Sanchez is unclear as to what must be shown before an expert may relate a case-specific fact — must that fact be formally admitted into evidence, or is it enough if the fact could have been admitted into evidence (because it falls under a hearsay exception)? Sanchez itself cites to both standards. A few cases have gone with the “admissible” rule (rather than the “formally admitted” rule). See Burroughs; People v. Stamps, 3 Cal. App. 5th 988 (2016).

Sanchez may have spelled the end of an earlier fiction allowing experts to recount all hearsay, but it ushers in a new era where courts must define how much hearsay is too much.