SANCHEZ’S HEARSAY DECISION THREE YEARS LATER
People v. Sanchez (2016) 63 Cal.4th 665 holds that the hearsay rule applies to case-specific out-of-court statements considered by experts as true and accurate and relied upon to support their opinions, because such statements are being admitted for the truth. (Id. at p. 686.) “Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried.” (Id. at p. 676.) In Mediation Message no. 124, I observed that “Although Sanchez is a criminal case, its holding applies to both criminal and civil cases. In criminal cases, expert testimony must also satisfy the Sixth Amendment’s Confrontation Clause.”
Three years later, I’m surprised that there are no published California appellate decisions involving the application of Sanchez in civil proceedings, other than two civil commitment cases (Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1280-1285 and Conservatorship of S.A. (2018) 25 Cal.App.5th 438, 447-448) and a gang injunction case pursuant to Civil Code sec. 3479 (People ex re. Reisig v. Acuna (2018) 9 Cal.App.5th 1, 33-36). I suspect that the absence of such decisions reflects the nonuse of Sanchez in the civil courts rather than that its application has not been appealed. My purpose, therefore, in writing this message is to remind civil trial lawyers that expert testimony in their cases is subject to a hearsay objection if that testimony relies on case specific out-of-court statements to support the testimony.
Sanchez differentiates between expert reliance on background information and case-specific facts. Under Sanchez, experts may continue to rely upon background information, which is not subject to a hearsay objection. “Our decision does not call into question the propriety of an expert’s testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field. Indeed, an expert’s background knowledge and experience is what distinguishes him from a lay witness, and, as noted, testimony relating such background information has never been subject to exclusion as hearsay, even though offered for its truth. Thus, our decision does not affect the traditional latitude granted to experts to describe background information and knowledge in the area of his expertise. Our conclusion restores the traditional distinction between an expert’s testimony regarding background information and case-specific facts.” (Id. at p. 685.) Accordingly, case-specific out-of-court statements “must be properly admitted through an applicable hearsay exception” or, alternatively, “through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner.” (Id. at p. 684.)
Judge Michael D. Marcus (Ret.)
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