In People v. Sanchez (2016) 63 Cal.4th 665, the California Supreme Court held that expert testimony involving case-specific facts is subject to exclusion as hearsay—just like any other testimony. In so holding, the Court overruled its prior decisions, including People v. Montiel (1993) 5 Cal.4th 877, which permitted courts wide latitude in allowing experts to base their opinions on case-specific facts that are hearsay. Montiel’s relaxed approach rested upon the use of limiting instructions informing the jury that they could consider hearsay as going to the basis of the opinion, but not for the truth. Thus, under Montiel, “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 p. 679.)
According to Sanchez, Montiel ignored an undeniable truth, 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.” (Id. at p. 686.) As a result, if an expert will testify to case-specific out-of-court statements as part of the facts supporting the opinion, then “like any other hearsay evidence, such statements will only be admitted through an applicable hearsay exception.” (Ibid.)
Thus, as Sanchez stated, when it comes to case-specific facts, a jury “must consider expert basis testimony for its truth in order to evaluate the expert’s opinion.” (Id. at p. 684, emphasis added.) Sanchez explained that, “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.” (Ibid.) Thus, post-Sanchez, experts can still rely on hearsay when it goes to background in establishing and applying their craft, but any use of case-specific facts for the actual opinion turns on admissibility.
What does Sanchez mean by case-specific facts? “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.) And the Court gave examples:
(1) That 15 feet of skid marks were measured at an auto accident scene would be case-specific information. Those facts could be established, for example, through the estimony of a person who measured the marks;
(2) That hemorrhaging in the eyes was noted during the autopsy of a suspected homicide victim would be a case-specific fact. The fact might be established, among other ways, by the testimony of the autopsy surgeon or other witnesses who saw the hemorrhaging, or by authenticated photographs depicting it;
(3) That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph; and
(4) That an adult party to a lawsuit suffered a serious head injury at age four would be a case-specific fact. The fact could be established, inter alia, by a witness who saw the injury sustained, by a doctor who treated it, or by diagnostic medical records.
(Id. at p. 677.)
When Sanchez was first decided, some civil litigators were blindsided by the opinion. Some argued that it was limited to expert testimony in criminal cases and not applicable to civil cases. But a more judicious reading of Sanchez certainly supports wider application. At any rate, since Sanchez was decided, seven Court of Appeal decisions have applied Sanchez in civil cases (three published, four unpublished). No court has held that Sanchez is limited to cases with Sixth Amendment concerns. The subsequent decisions also remind us that a Sanchez objection can be forfeited and that even if there is error, harmless error analysis still applies.
What’s it all mean for civil litigators? It means that it’s always a good idea to read criminal appellate opinions when they come out because so much of the body of evidence law finds its origins there. It also means that going forward, opposing counsel and trial court judges will be scrutinizing expert testimony for case-specific hearsay for which there is no applicable exception. If there is none, the expert opinion may be gutted. Given the new reality, it’s probably a good idea to bone up on the hearsay rule and its exceptions.
Gary, a State Bar certified appellate specialist, serves as the Chair of Hanson Bridgett’s Appellate Practice. He is on the faculty at U.C. Hastings College of the Law and is also Chair of the Contra Costa County Bar Association’s appellate practice section. He is a frequent contributor to the Daily Journal and other publications.