The past controlling legal precedent regarding expert testimony Gardeley
To understand how Sanchez operates within the realm of LPS Conservatorship, the first step would be to understand the case that Sanchez overruled. Sanchez overruled People v. Gardeley, 14 Cal. 4th 605, (1996). Gardeley held that expert witnesses may render an expert opinion based on information that is not admitted into evidence so long as that information is (1) material, (2) meets the reliable test, and (3) is the kind of information that experts routinely rely upon to render their opinions. Simply put experts under the Gardeley opinion may relate to case specific hearsay in rendering their opinion.
The evidence code allows expert witnesses to state on direct the reasons for rendering said opinion and the information upon which they based their opinion. Expert witnesses under Gardeley can render an opinion based on inadmissible information should all these dispositive factors be met. Additionally, the California Supreme court added procedural safeguards against abuse of Gardeley’s findings. It opined that the trial court has considerable discretion to control the direct and cross of the expert witness to prevent the jury from hearing hearsay. The trial court must at the same time conduct a balancing test of whether the probative value of the expert’s inadmissible evidence outweighs the risk that the jury might improperly hear and deem the expert’s statements about any inadmissible evidence as independent proof of a material fact. If all has been said and done the expert may render an opinion based on inadmissible hearsay.
How would this look for LPS? An expert could under Gardeley may relate to hearsay subject matter of grave disability, psychiatric decompensation, and PERT reports at the 72 hold as these are matters sufficiently beyond common experience.
These kinds of evidence are usually not admitted into evidence but under Gardeley this evidence (being relied upon by experts) must be reliable. West's Ann.Cal.Evid.Code § 801(b). So long as this threshold of reliability is satisfied, even case specific hearsay that is ordinarily inadmissible may be used to form the basis for expert's opinion testimony. THIS IS DIRECTORY NOT ADVISORY.
Under Gardeley the trial court had the discretion to weigh the probative value of using inadmissible evidence against the risk that jury might improperly consider it as independent proof of facts (expert using hearsay statements for the truth of the matter asserted rather than just a "supplement" to their opinion), because the court does not want to "open the door" for inadmissible matter to routinely turn "case specific hearsay" statements into independent proof of facts.
This is how most counties do it and as a "certain group of med mal" lawyers say, Sanchez/ Gardeley are what the judge say they are. Meaning that counsel usually has to comport to the norms and practices of their bench officers even if it runs counter to controlling case law. Moving on.....
This now brings us to People v. Sanchez, 63 Cal. 4th 665, 374 P.3d 320 (2016) which made Gardeley bad law and technically unciteable
Sanchez clarifies the hearsay exception and experts and now basically says that experts cannot relate to case specific hearsay (information that the expert has no prior independent knowledge of) in rendering their opinions. They may however, continue to relate to non case specific hearsay (information that exists outside of the case ie DSM V, training from med school, research papers).
The issue with Sanchez is that a lot of people questioned experts who relied on out of court statements in rendering their opinion. Under the Gardeley court the experts basically said "we are relying on these statements from out of court witnesses to generate our expert opinion, but we are not relying on them for the truth of the matter..... just as a supplement ". However, with the new Sanchez opinion the court stated that "this paradigm is no longer tenable because an expert’s testimony regarding the basis for an opinion must be considered for its truth". Meaning that no opinion can be created and relied upon unless the expert assumes that it is true. Otherwise if the fact pattern changes or was found to be false then the expert would create an entirely new opinion. In re Sanchez “[T]here is no denying that such facts are being considered by the expert, and offered to the jury, as true.” (Id. at p. 684.)
Simply stated after Sanchez, reliability is no longer the sole basis of hearsay admissibility regarding expert testimony. Admissibility is now cut-and-dried: If it is a case-specific fact and the expert (Dr) has no personal knowledge of it, if no (business record exception) hearsay exception applies and if the expert treats the fact as true, the expert simply may not testify about it and should they it could warrant a reversal from the court of appeals.
Now how would this look with LPS out in the field.
We have a doctor here saying he's basing his findings on what another Dr saw during treatment at an IMD (like during a re estab hearing), and he's relying on what the Dr at Alpine wrote and said about the conservatee to generate his expert opinion, counsel may be able to raise Sanchez and say We never saw the data, report, etc; therefore, we move to exclude the opinion under Sanchez (oral objection or motion in limine). Technically the expert's testimony could be excluded. However, attorneys have different ways to get around Sanchez. Those med mal lawyers opine that you could advise your expert to get around it by saying yes I did receive and considered those reports but based on my training, knowledge of the DSM V, education in med school/residency, experience treating psychiatric patients, when I reviewed the medical records I relied on all of the above and this is my opinion....
Now I personally dont like what these lawyers had to say because there are too many holes but I'm just putting it out there. Another more realistic answer goes something like this "The Dr's testimony was not based entirely on third party reports, but also upon his own experience: serving as a consulting member of the conservatee's treatment team; consulting about appropriate placements and services for conservatee, and conducting several personal interviews and evaluations of conservatee on these dates. (make sure it's entered into the record or you run the risk of reversal due to forfeiture should someone appeal). This Dr also had observed conservatee when they were a patient at _______ psychiatric inpatient facilities. Thus given the totality of the evidence, this Dr when testifying and giving his expert opinion and basis for his opinion is “pretty familiar” with conservatee. He has enough personal independent knowledge of the facts that constitute the basis for his opinion. Thus he may rely on these facts "for the truth of the matter asserted" might want to run that one by a lawyer to make sure I said that right.
I should also note that people tend to forget that Sanchez somewhere says that the expert cannot base his opinion solely on hearsay. Lee Blumen and I would probably try and argue that if the trial court must it may throw out the inadmissible parts and focus on the evidence that is admissible under an exception. Let the Dr's expert opinion rest on the exceptions and not throw out the opinion entirely because someone focused too much hearsay inadmissible under Sanchez.
Another exception that may apply to nursing notes, CERNER, and other hospital records. Many lawyers try and overcome hearsay citing Business Records Exception (Cal. Evid. Code § 1271)
Business records exception states that evidence in the form of a writing made about an act, condition, or event is not made inadmissible by the hearsay rule if conditions are met. The person proffering that record must show that (a) The writing was made in the regular course of a business; (b) The writing was made at or near the time of the act, condition, or event; (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.
This is written in the conjunctive meaning that all the criteria need to be met. It does not mean “either this or that.”. All need to be met and counsel would be wise to ensure that the record shows that the evidence has been properly tendered and foundation laid showing Business records exception has been met. In re E.A. (2018) 24 Cal.App.5th 648. In establishing this exception counsel always needs to bear in mind the high burden of proof for LPS. Counsel also needs to be on notice that Conservatorship of O.B. reminded everyone that standards of proof although subject to human limitations (bias) are not an empty formality so be extra mindful that bench officers may be enforcing that high burden of proof even more stringently.
In the future I will touch on the reality that counsel may one day try to challenge Sanchez objections saying that informal objections or motions in limine are moot as counsel cannot "unring the bell". That would complicate Sanchez even further.
Juvenile Dependency and