MCLE SELF-STUDY ARTICLE: PEOPLE V. SANCHEZ AND EXPERT USE OF HEARSAY IN TRUST AND ESTATE LITIGATION

Written by Evan D. Winet, Esq.* and John D. Rueppel, Esq.**

I. INTRODUCTION

Trust and estate litigation can involve extensive use of expert witnesses, ranging from medical experts opining on cognitive capacity to forensic accountants opining on the propriety of accountings. There is a fundamental tension between the hearsay rule and how such expert witnesses use or introduce evidence outside of their own personal knowledge. As every law student learns, hearsay is inadmissible unless governed by an exception to the hearsay rule.⁰¹ However, it is the custom and practice of experts in forming their opinions to make use of evidence that would otherwise qualify as hearsay. When they are examined in court, experts may (inadvertently or tactically) act as conduits for such evidence to reach the trier of fact. Until recently, courts allowed experts to discuss otherwise inadmissible hearsay evidence but then instructed triers of fact to consider such evidence only in evaluating the expert’s credibility.

The landmark 2016 California Supreme Court case, People v. Sanchez,⁰² set out strict guidelines for the court to evaluate the admissibility of expert testimony based on such hearsay. Under Sanchez, an expert may present hearsay evidence that is merely "background"—the kind of authorities and source information on which experts customarily base their opinions.⁰³ However, an expert may not introduce hearsay evidence that is "case-specific" unless such evidence is either established independently by competent testimony (i.e., percipient witnesses with personal knowledge of those facts) or demonstrated to fall within an exception to the hearsay rule.⁰⁴