Can the internet provide reliable case-specific facts?

The shockwaves from the unanimous California Supreme Court decision People v. Sanchez, 63 Cal. 4th 665 (2016), continue to reverberate far and wide. Those reverberations recently have shaken loose issues regarding the reliability of information available on the internet.

In Sanchez, the court held that experts may testify about general background information, including general knowledge and premises in the expert's field, but may not testify about case-specific facts on which the expert relied, unless those facts are otherwise admissible. The court defined case-specific facts as those that relate to particular events and or participants at issue in the case being tried before the court.

The Sanchez holding is a substantive departure from the prior, well-established rules governing expert witnesses' reliance on hearsay. Previously, out of court statements upon which expert's relied were not being admitted for their truth, but only as part of the bases or foundation for the expert's opinion. See People v. Gardeley, 14 Cal. 4th 605 (1996) (gang expert could testify to out-of-court statements he had heard from fellow officers and gang members relating to gang activities, as long as the statements were reliable). But the Sanchez court put a stop to this practice when it decided 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."

It's like the Wild West, the internet. There are no rules.

-- Steven Wright

Three months to the day after the Sanchez decision was published, the 1st District Court of Appeal cited Sanchez as the basis for its decision to reverse a drug conviction which was based on expert testimony as to hearsay contents of a website called Ident-A-Drug. People v. Stamps, 3 Cal. App. 5th 988 (2016). In Stamps, the defendant was charged with multiple counts of drug possession. The only evidence of the identity of the drugs in pill form was the expert's visual comparison of the seized pills to those pictured on the Ident-A-Drug website. There was no chemical analysis of the pills, no testimony that the expert had seen the pills before in her experience, and no consideration of the possibility that the pills were counterfeit.

In reversing the convictions related to the pills, the court noted that the parties agreed that expert's testimony regarding the identity of the pills from Ident-A-Drug was case specific and, thus, inadmissible hearsay. The court also cited authority to support what it characterized as "a common judicial skepticism of evidence found on the Internet," including how information on the internet "is inherently untrustworthy." But because it concluded that the testimony regarding information obtained from the website was inadmissible hearsay, the court felt it did not need to analyze the reliability of Ident-A-Drug.

The internet is becoming the town square for the global village of tomorrow.

-- Bill Gates

More recently, almost one year to the date after the Stamps decision was published, a different division of the 1st District upheld a conviction based on expert testimony from the same Ident-A-Drug website. People v. Mooring, 2017 DJDAR 9514 (Sept. 27, 2017). In Mooring, the defendant was charged with possession of various drugs for sale, including certain drugs in pill form. The same criminalist who testified in Stamps testified in Mooring. And she again relied on Ident-A-Drug for the identity of the seized pills. This time, the prosecution argued that the information from that website satisfied the elements of Evidence Code Section 1340, the published compilation exception to the hearsay rule. The appellate court agreed.

The court explained how the Ident-A-Drug website satisfied each of the requirements of Section 1340. The website qualified as a compilation because it collects data from various sources, including the Food and Drug Administration and pharmaceutical pill manufacturers. Based on the expert's testimony, the court also found that the compilation is published, albeit electronically on the internet, and that the compilation is used in the regular course of business, generally accepted in the scientific community, and relied upon as accurate by the crime lab. The expert herself testified that she used the website over 2,000 times to presumptively identify prescription pills. She also considered and rejected the idea that the pills were counterfeit, and explained why. The court further noted that, as a "subscription based and login-controlled Web site, ... Ident-A-Drug has a commercial incentive to be accurate and reliable because subscribers pay to access the Web site."

The holding of Mooring may be perceived as conflicting with the holding in Stamps. After all, both cases involved testimony by the same expert criminologist regarding the same drugs in pill form, not to mention how the expert identified the pills relying on information from the same Ident-A-Drug website. Despite these similarities, one case concluded that the information from the website was inadmissible hearsay, while the other case found it admissible under the published compilation exception to the hearsay rule.

On the other hand, Mooring can be distinguished from Stamps. In fact, the Mooring court did just that, noting that, in Stamps, the criminologist "did not explain the Web site in any detail, nor testify that any special expertise was required to use it." What is more, in Stamps, the prosecution conceded that the information from the website was case specific and, thus, constituted inadmissible hearsay. No party offered any hearsay exception that applied to render the information admissible, at least not in a timely manner. Indeed, the Mooring court accurately characterizes Stamps as a decision which did not even consider the application of the published compilation exception.

Both Mooring and Stamps demonstrate the "paradigm shift" the Sanchez decision represents when it comes to the admissibility of expert testimony on case-specific facts. However, both cases also provide guidance not only on how persistence and strategy can lead to admissibility of expert testimony on case-specific facts, but more specifically, on how the published compilation exception under Evidence Code Section 1340 may apply to information from a source that has been characterized as "inherently untrustworthy" -- the internet.

Finally, it is important to remember that, although Sanchez was a criminal case, its holding on evidentiary rules for expert witness testimony, including "the proper application of Evidence Code sections 801 and 802," apply to civil cases as well. See People v. Burroughs, 6 Cal. App. 5th 378, 405 n.6 (2016) ("[N]othing in Sanchez indicates that the court intended to restrict its holdings regarding hearsay evidence to criminal cases."). As a result, both criminal and civil practitioners alike should heed the lessons of Sanchez, as well as Stamps and Mooring, particularly as they relate to the reliability and admissibility of information available on the internet.