One of the most landmark cases related to evidence to come down in years, People v. Sanchez (2016) 63 Cal.4th 665 established new limits on an expert's ability to testify as to hearsay statements relied on in forming his opinion. How does this affect a family law case? Many family law cases involve the use of experts, such as financial experts, pension experts, etc. This article will focus primarily, however, on how Sanchez could affect the manner in which testimony is received from a Child Custody Evaluator, whose testimony is largely based on hearsay statements.
California Evidence Code section 801, relating to expert testimony, states that if a witness is testifying as an expert, his testimony in the form of an opinion can be based on matters reasonably relied upon by an expert in forming such opinion—even if those matters commonly involved out-of-court statements technically considered hearsay. However, the Sanchez court has announced a paradigm shift in how those out-of-court statements used by experts in testimony will be treated under the California hearsay rules.
In Sanchez, California's Supreme Court overruled prior opinions that had permitted an expert's opinion to rely on case-specific facts even when those facts were hearsay. In doing so, the court recognized that jurors must be able to consider expert-based testimony for its truth. Sanchez was a criminal case in which the defendant was charged and convicted with being an active participant of a street gang and with commission of a felony while being in a gang. The prosecution relied upon a gang expert's testimony in obtaining the gang enhancements. The gang expert testified to case-specific facts based on out-of-court statements that were admitted into evidence.
The defense appealed the conviction on the basis of the hearsay. The defense argued that when the jury members hear facts recited by an expert, they will tend to take those statements as true and accurate. As such, that hearsay evidence should have been properly admitted through some exception of the hearsay rule.
Although this was a criminal case, it has great impact on how we as family law practitioners should be considering hearsay objections when an expert, such as a child custody evaluator, is testifying. A custody evaluator typically relies on a substantial amount of hearsay evidence. It follows that, unless a custody evaluation is stipulated and admitted into evidence, nearly all the evidence relied upon by the evaluator could potentially be excluded. The evaluator may consult with multiple sources to help substantiate her conclusions. Custody evaluations are meant to provide context to the court and help to assess custody in light of all available information. This, in turn, requires the evaluator to gather information from many hearsay sources, such as from interviews with family, teachers, coaches, etc.
Historically, these statements could be conveyed in a trial or other setting without affording the opposition the right to cross-examine the source of the information. Now, under Sanchez, unless the parties and/or their counsel stipulate to the introduction of a custody evaluation report, the statements would need to be brought in as evidence under some hearsay exception. Alternatively, the collateral source of the information would need to be brought in and put on the stand to authenticate the statements.
The question now becomes: is this what the court intended by this decision? Custody evaluations are exceptions to the Evidence Code by statute. Under California Rules of Court, rule 5.220, custody evaluators are allowed to collect data from hearsay sources. The very purpose of the evaluation is to help the court assess custody. Whatever the court's intention was, Sanchez is still quite new, and discussion continues as to how its impact will be felt in the family law arena. Family law attorneys should be well-versed in their hearsay rules, though, and be prepared to make and argue objections to the admissibility of a child custody evaluation report.
Jennifer Coenenberg is the chair of the San Joaquin County Bar Association's Family Law Section.