How People v. Sanchez Affects Use of Expert Testimony in Family Law

Family law cases, including divorces and child custody cases, often involve the use of an expert witness. Usually, this is in the form of a psychologist rendering an opinion on the various involved parties based upon interviews with them, or from review of materials and information gathered in preparation for the case.

However, the use of experts has created some difficult questions when it comes to the use of hearsay.

Sanchez Case Impact on Expert Witness Testimony in Family Law

In California, hearsay is usually inadmissible in court, with some exceptions.

Let’s imagine a child custody case in which a wife is attempting to obtain custody based upon claims that her husband is abusive and violent. The wife testifies on the stand that she was never abused by him, but a friend of hers claimed to have had an affair with the husband in which he was physically abusive.

This example embodies the literal definition of hearsay: recounting something that you heard someone else say. And in most instances, this type of ‘out-of-court’ testimony would be inadmissible. That’s because the friend isn’t there to offer firsthand testimony about the affair and the husband’s behavior. This is a violation of the Confrontation Clause of the Sixth Amendment, which specifies that anyone accused of a crime has the right “to be confronted with the witnesses against him.” Essentially, if you’re on trial, any accusations need to be verbalized in person in court, so that you have the opportunity to have your lawyer cross-examine them and test their claims.

However, there are a number of exceptions to the hearsay rule. The California Evidence Code has a long list of exceptions which permits hearsay in certain situations, such as:

  • Testimony from children under 12 in cases of child abuse.
  • Recorded statements in which someone describes a physical injury.
  • Previous statements which reinforce or undermine in-person testimony.
  • Business records

Bear in mind that these aren’t absolute exceptions, but are subject to a long list of qualifications which they need to meet before being considered court-admissible.

But where hearsay becomes particularly problematic and tricky is when expert testimony is involved, as demonstrated in People v. Sanchez.

Experts play a very important role in family law, as the mental state of parents and their children has a greater role in the evaluation of a case than in just about any other area of law.  Often, these evaluations are made based upon a mixture of firsthand interviews and reviews of secondary information for a variety of sources.

The problem with expert testimony is there is the potential for it to become a means for laundering hearsay—taking what would typically be inadmissible and making it court-accepted by virtue of the invocation of an expert’s experience. In our hypothetical case above, the wife could not testify about her friend’s claim of a violent affair. But a psychologist who reviewed interviews with the wife in which she recounted the friend’s story may well factor that inadmissible evidence into his or her opinion that the husband was a violent, dangerous man unfit to have custody of his child.

Evaluating whether an expert’s testimony should be allowed in court or not becomes very complicated when you consider the question of what their testimony is based upon.

This question came to a head in the case of People v. Sanchez, which found its way to the California Supreme Court in 2016.

A few years ago, a man by the name of Edgardo Sanchez was convicted for a long list of gang-related crimes, including murder and attempted murder. A significant part of the testimony against Sanchez was in the form of a gang expert, who gave an overview of how gangs work, and went on to comment relate information documented by police officers about Sanchez’s past gang activity.

However, the expert had never met Sanchez, nor did they have firsthand knowledge of any of his prior contacts with law enforcement. Instead, he based his understanding of Sanchez’s case upon written documentation created by police officers who had previously crossed paths with Sanchez. Rather than having these officers testify in Sanchez’s murder trial—giving him the chance to rebut their statements—the gang expert acted as an intermediary between those officers and the courtroom, more or less regurgitating the specific observations of other officers. This is similar to how the wife in our hypothetical case would act as an intermediary between her friend’s experience and the courtroom, describing events she herself did not witness.

Sanchez’s lawyers appealed his conviction based upon this use of hearsay. In 2016, the California Supreme Court ruled in the defendant’s favor, and granted him a new trial.

The Supreme Court was well aware of the significance of their ruling, and crafted what amounts to as a new litmus for the admissibility of hearsay.

In short, an expert’s opinion can no longer be admitted strictly on the basis of their expertise. Instead, first it must be determined whether they are offering strictly background information, or information specific to the case itself. In the latter situation, any case-specific facts verbalized by the expert must each be individually tested for admissibility.

An expert may use hearsay evidence to help build their understanding of a case. But any aspects of an expert’s testimony significantly based upon information that fails the hearsay test will in turn become inadmissible. This is somewhat similar to the “fruit of the poisonous tree” legal doctrine, in which evidence obtained illegally cannot be used in court. In the case of Sanchez and the countless cases that will rely on it, evidence that would be considered inadmissible hearsay cannot be verbalized by an expert in court.

The Sanchez ruling will have a profound impact on family courts—an impact that cannot yet be fully ascertained.

Quite frankly, hearsay has long been a major source of information in child custody cases. This is because such cases have long relied on interviews collected in Child Custody Recommending Counseling (CCRC) sessions. The information relayed to a court via a CCRC may include testimony from the children at the center of the case, as well interviews with a child’s relatives, teachers, friends, coaches, scout leaders, and just about anyone else that would have insight into a child’s life.

Post-Sanchez, a party placed in a negative light by testimony provided stemming from a CCRC report will be able to raise an objection based on the Sanchez ruling.

Let’s turn back to our hypothetical family law case for a moment. A psychologist gives testimony indicating that the husband is violent, based upon interviews with the wife’s friend, as well as other secondary sources. In this case, the husband would be able to raise an objection, because the sources of this information are not testifying in court.

If a judge finds that the objection is reasonable, then this is where things get messy. If an expert has relied upon certain hearsay, but not relayed it directly, then their opinion might be accepted. Or, a judge may restrict only certain contaminated aspects of their opinion. Or they may throw out the expert’s testimony altogether. It’s uncertain how any particular case might play out.

What has become clear is that, where possible, it will be necessary to have primary sources of information testify in court—relatives, teachers, friends, pediatricians, and so on. We can no longer assume that an expert’s words are admissible as evidence based on the weight of their expertise alone.

Given how complicated a case with an expert, including a mediator or CCRC evaluator, will be to bring to trial under the Sanchez ruling, you should have an attorney assist you with your family law case.  We can help you build your case so that critical testimony won’t be thrown out. To learn how Toeppen and Grevious can help, call us at 916-400-4516, or send us a message using our contact form.