The following is an update regarding two decisions issued February 27, 2020 by the California Supreme Court involving hearsay testimony and expert witnesses. The decisions are:
These decisions follow and develop issues previously addressed in People v. Sanchez (2016) 63 Cal.4th 665, in which the Court held that an expert may not use case-specific hearsay to explain the basis for his or her opinion unless the facts are independently proven or fall within a hearsay exception. While both decisions will guide conduct by defense counsel in the criminal context, the Court’s decisions likewise will influence the retention and use of expert witnesses in civil cases.
In Perez, the Court addressed a procedural issue. Specifically, it created the term “Sanchez Objection” as the procedure allowing the defense to raise a hearsay objection to expert testimony. Consistent with both its 2016 decision in Sanchez and last year’s decision in People v. Mendez (2019) 7 Cal. 5th 680, the Supreme Court ruled that a general explanation by the expert of his or her educational hearsay is admissible, but the expert may not republish the educational hearsay. An expert republishes educational hearsay when, after referring to the fact that she read a lab report, she testifies as to the exact content of the report. If an expert has acquired independent knowledge of a case-specific fact, then she may testify that, in forming her opinion, she relied on the case-specific fact and then add that she also reviewed a lab report. On the other hand, if the expert has not acquired independent knowledge of a case-specific fact, then she may not tell the jury that she looked at the lab report. At that point, there is no foundation for the expert opinion and the expert’s testimony is inadmissible.
When an expert has not acquired independent knowledge of a case-specific fact, then the educational hearsay becomes case-specific hearsay and should be excluded. As explained in Perez, the Sanchez Objection may be raised to assert the following: (1) that the expert testimony is case-specific hearsay and should be excluded; and/or (2) that while the expert may testify in general terms about her educational hearsay, she may not republish the specifics of her educational hearsay.
In Veamatahau, the expert witness Scott Rienhardt (“Expert”) used a drug identification database, which became part of his educational hearsay. When the Expert visually inspected a pill taken from the defendant, he acquired independent knowledge of a case-specific fact. Accordingly, at trial, the Expert could testify about how he applied his educational hearsay in forming an opinion as to the chemical make-up of the pill. If the Expert had not acquired independent knowledge of the case-specific fact, then he would have been prohibited from testifying regarding the application of the database in forming his opinion because the database would be inadmissible case-specific hearsay. At that point, his opinion would have lacked foundation and been rendered inadmissible.
After being convicted in the trial court, the defendant in Veamatahau sought reversal on appeal, in part, based on a Sanchez Objection to the Expert having relayed case-specific hearsay to the jury. The Court of Appeal rejected the argument, and its decision was affirmed by the Supreme Court.
In Perez, the Court clarified that, until Sanchez was issued in 2016, it was futile to object to “case-specific expert basis testimony” without reliance on Evidence Code § 352, which requires a showing that such testimony is excessive, inflammatory, or confusing. The procedural issue decided in Perez is that failure of defense counsel to object to such testimony at a trial held before Sanchez was decided did not forfeit a claim on appeal based upon Sanchez.
The Court explained in Veamatahau that, as codified in Evidence Code §§ 801 and 802, the hearsay rule has not traditionally barred and presently does not bar an expert’s testimony regarding his general knowledge in his field of expertise. By contrast, an expert may not relate inadmissible “case-specific facts about which the expert has no independent knowledge.” Citing Sanchez, 63 Cal.4th at p. 676. As succinctly stated by the Court: “The distinction between case-specific facts and background information thus is crucial—the former may be excluded as hearsay, the latter may not.”
In affirming the Court of Appeal’s decision, the Court conducted a thorough analysis of the Evidence Code as it pertains to expert witnesses, including sections governing probative value (352), foundation (402), expert witnesses (720-721), opinion testimony (801-805), the hearsay rule and relevant exceptions (i.e., 1200, 1223, 1271, 1280, and 1340). The Court relied on these provisions to reject the arguments made by the appellant. Specifically, the Court found that: (i) Expert’s testimony concerning standard practice in the field (i.e., visual inspection of pharmaceutical pills and comparison of same against database of imprints required by the FDA) was not hearsay; (ii) Expert’s testimony that the seized pills contained alprazolam based on his own visual inspection of the pills also was not hearsay; and (iii) while some of Expert’s testimony under cross-examination constituted hearsay (i.e., concerning information in the database), such testimony was admissible because it was not case specific.
The California Supreme Court’s decisions in Perez and Veamatahau have refined the terminology necessary to discuss the law governing testimony by expert witnesses involving hearsay evidence at trial. Experts acquire information from their education and experience; and such information may be derived from treatises, data sources, lectures, and conversations with other experts. The California Supreme Court recognizes this information as “educational hearsay.” Experts may testify in general terms about their educational hearsay. Further, if the expert acquires independent knowledge of a case-specific fact, then the expert may testify regarding his or her educational hearsay and its application to the case-specific fact in testifying about the formation of the opinion. However, if the expert has no independent knowledge of a case-specific fact, then the expert’s educational hearsay testimony becomes inadmissible case-specific hearsay.
Commencing in 2016 with the California Supreme Court’s Sanchez decision, this body of law governing expert witness testimony and case-specific hearsay has developed in the criminal context, yet the implications for civil practitioners are far-reaching. The Court’s most recent decision in Veamatahau will guide the entire civil process as it relates to expert witnesses, from initial consultation through testimony at trial. Further, the Court’s discussion of the Evidence Code sections governing expert and opinion testimony is useful reading for all litigators whose practice includes the use or presentation of expert witnesses.
These materials were written for the Business Litigation Committee by member Peter L. Isola of Hinshaw & Culbertson LLP (PIsola@hinshawlaw.com) and real estate expert witness Harold Justman (firstname.lastname@example.org). Mr. Isola is a former Co-Chair of the Business Litigation Committee. Editing contributions were provided by Neil J Wertlieb of Wertlieb Law Corp (Neil@WertliebLaw.com).