PEOPLE V. MALIKâTHE "FLIP SIDE" OF SANCHEZ?
By Benjamin M. Beltramo*
On June 30, 2016, the California Supreme Court issued a decision that seismically shifted the landscape of expert witness testimony at trial. In People v. Sanchez (2016) 63 Cal.4th 665, the Court considered the extent to which Crawford v. Washington (2004) 541 U.S. 36 ( Crawford) limits an expert witness from relating case-specific hearsay in explaining the basis for an opinion. In Crawford, the United States Supreme Court held that the Confrontation Clause bars the admission of out-of-court testimonial hearsay statements except when "the declarant is unavailable . . ." and the defendant "had a prior opportunity to cross-examine" the declarant. (Crawford, supra, 541 U.S. at p. 59.) The Sanchez decision held that the case-specific out-of-court statements conveyed by the prosecution’s gang expert constituted inadmissible hearsay under state law and, to the extent they were testimonial, ran afoul of Crawford. (Sanchez, supra, 63 Cal.4th at pp. 670-671.)
The Sanchez decision ushered in a dramatic pivot in the analysis of how judges and criminal practitioners should treat expert basis evidence. Prior to Sanchez, the prevailing precedent held that such out-of-court statements conveyed by an expert were not hearsay at all, since they were not offered for the truth of the matter asserted, but were only offered and admitted as the basis of an expert’s opinion. (See People v. Thomas (2005) 130 Cal.App.4th 1202, 1210; People v. Gardeley (1996) 14 Cal.4th 605, 619-620.) Thus, experts routinely testified about interviews they had conducted with relevant subjects, reports they had read, and witness accounts they had considered in reaching their opinionâwith a limiting instruction from the court that these out-of-court statements were only admitted as basis evidence and not for their truth. But the Sanchez court took issue with this evidentiary interpretation, instead holding:
The Sanchez court made clear that its decision, "does not affect the traditional latitude granted experts to describe background information and knowledge in the area of his expertise." (Sanchez, supra, 63 Cal.4th at p. 685.) The court also observed that its holding does not prevent experts from relying on hearsay in forming an opinion and telling the jury the type of matter relied upon: "An expert may rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. Because the jury must independently evaluate the probative value of an expert’s testimony, Evidence Code section 802 properly allows an expert to relate generally the kind of source of the ‘matter’ upon which his opinion rests." (Id. at p. 686.)