Sanchez Case Creates Uncertainty in Expert Testimony, Including Child Custody Recommending Counseling

The concept of hearsay is generally defined as evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (Evidence Code Sec. 1200)  Hearsay includes documents, text messages, internet posts and the like.  However, like a piece of good swiss cheese, there are more “holes” in the hearsay rule than one might think.  This exceptions include (but are not limited to the following:

1. Admissions by parties to the case that are used against the speaker—for example, a confession to a crime;
2. Statements, by a speaker who is unavailable as a witness, that are against his/her self-interest in an important way;
3. Prior statements by a witness at the trial that are inconsistent with his/her current testimony;
4. Prior statements by a witness at the trial that are consistent with his/her testimony—if these are used to rebut evidence that his/her testimony is unreliable;
5. Written statements by a witness regarding events that were fresh in his/her mind at the time the statement was made but that s/he has forgotten by the time of the trial;
6. Previous eyewitness identifications by a witness that were made when the crime or other event was fresh in his/her memory;
7. Spontaneous statements made in the excitement of the moment;
8. Statements made to explain the speaker’s actions, while s/he was performing those actions (the “present sense” exception);
9. Statements made by a dying person about the causes or circumstances of his/her death;
10. Certain statements about the speaker’s mental or physical state that are offered to prove that s/he experienced that mental or physical state;
11. Certain statements made by children under the age of 12 in California child abuse cases or cases involving California sex crimes against children;
12. Certain business or public records;
13. Former testimony that was given in an earlier court or official proceeding, when the witness is now unavailable to testify;
14. Certain statements about family history, community history, or a person’s reputation in the community;¹⁷
15. In cases involving serious felonies, statements by witnesses who may have been murdered or kidnapped by the defendant;
16. Certain statements in which the speaker describes or explains a physical injury (or the threat of a physical injury) that was inflicted on him/her; and
17. Certain videotaped statements by an elderly or dependent adult in California elder abuse cases.

In Ventura County, we are what is called a recommending county–in that in child custody and visitation matters, the court appointed mediators make a recommendation, which generally gets “published” in the court file and is considered by the Judge.  Many other counties maintain mediation confidentiality, making mediation less important in the family law context.  Many times these mediators have collateral contact with persons such as a child’s therapist or the supervised visitation monitor.

This new decision in People v. Sanchez  (2016) 63 Cal.App.4th 665, holds that an expert cannot testify about specific details of hearsay evidence on which the expert relied in forming an opinion without that evidence being independently admissible.  So, let’s parse this out.  As an expert, the expert may still rely on hearsay.  The expert may still state their opinion to the court based on hearsay.  However, the expert is not allowed to re-state the specific details of hearsay to the court.  The general concept of the hearsay rule is to prevent unreliable evidence from impacting the outcome of court proceedings.  The trouble is that the hearsay rule has been so sliced-and-diced that to some extent the rule (under Sanchez) has lost its way and no longer seems to fit the intent of public policy.  Under the new rule, experts, including mediators can still rely on hearsay, they just can’t testify as to those case-specific details in a court hearing.  That means that the court will have the expert opinion, but won’t even be able to figure out how exactly that opinion was reached unless these hearsay “contacts” are also brought into court for direct examination.  That has the unintended consequence of also making it harder to impeach an expert’s opinion unless you know who there collateral contacts were and you have them under subpoena to appear.

This also has ramifications in the family law arena in the context of vocational examinations.  A vocational examiner is an expert.  They can still rely on hearsay (i.e. contacting specific employers regarding job openings and salaries), however they cannot testify as to case-specific details of hearsay evidence.  That means that if a vocational examiner contacts a party’s doctor, psychologist, therapist, or previous employers–none of that evidence gets heard by the judge without those persons being under subpoena and testifying as well.  So, testimony from vocational examiners will either be more narrowed to their opinion, the basis, and the specific data from databases (i.e. Bureau of Labor Statistics); however, case-specific hearsay contacts will frequently be excluded without such contacts also testifying.

So, Sanchez narrows the testimony of experts, but I would argue that it has unintended consequences.  In many cases, it will increase trial times, the number of witnesses, and the cost of litigation.  In other cases, (assuming the objection is raised) it will allow the opinion to come in, but will prevent the court from having a full understanding of how that opinion was formed.

When making an objection under Sanchez, one needs to be careful.  If one objects under Sanchez, excluding that line of evidence, then wants to impeach the experts testimony by bringing in contrary evidence, such impeachment will not be successful.  That is to say, you need the expert to testify about these case-specific details before you can impeach their opinion by providing evidence contrary to the case specific details.

On an additional note, this decision (Sanchez) flows from a criminal case wherein the defendant was charged with multiple crimes, including firearm and drug possession.  The expert at time of trial was a gang expert who testified as to the specific details of the defendant’s participation in a particular gang.  That testimony relied on “case-specific” out-of-court statements made by third parties, which were hearsay.  Sometimes new case law can have unintended consequences and affect wide areas of legal practice other than the practice area in the underlying decision.