I have previously written about the framework for analyzing Sanchez issues, and I explained that the answer turns on the difference between “background information” and “case-specific facts.” Last week, our Supreme Court reaffirmed that “the distinction between case-specific facts and background information thus is crucial—the former may be excluded as hearsay, the latter may not.” (People v. Veamatahau (2020) 9 Cal.5th 16, 26.)
In Veamatahau, the defendant was charged with possession of a controlled substance following his arrest by East Palo Alto police. The First District Court of Appeal ruled as follows:
|Case-specific fact||Background Information|
|Defendant possessed pills imprinted with “GG32 or 249”||Pills imprinted with “GG32 or 249” contain alprazolam, a controlled substance|
The source of the background information was clearly hearsay: a database that identifies pills by their imprints. The expert searched “GG32 or 249” in the database and learned that the pills contained alprazolam, a controlled substance. The expert gave the opinion that pills were a controlled substance, and the defendant was convicted.
On appeal, the defendant argued that the prosecution’s proof violated People v. Sanchez (2016) 63 Cal.4th 665. In rejecting his argument, the Court observed that the case-specific facts were not hearsay. The officer testified that he arrested the defendant with pills, and the expert testified that he examined those pills and saw the imprints himself. The prosecution did not relate case-specific hearsay to the jury, so there was no Sanchez violation.
Veamatahau is noteworthy because of the court’s analysis of the database relied upon by the expert. The defense argued that contents of the database were case-specific: But for the defendant’s arrest, the expert would not have searched the database and learned about pills imprinted with “GG32 or 249.” The Court rejected this “crabbed view” of expert knowledge. If the court adopted the defendant’s view, testimony would be case-specific if the expert has to look it up, but it would be background information if the expert knew it off the top of his head. “We cannot accept a framework under which the standard for admitting expert testimony would . . . ‘turn on the expert’s memory rather than on the reliability of the underlying material.’”
The expert testified that, in his field, it is standard practice to identify pharmaceutical pills by visual inspection and comparison to databases like the one he consulted. The Court found no problem with relying on a database. The Evidence Code allows an expert to refer to, consider, or rely upon “any scientific, technical, or professional text, treatise, journal, or similar publication” and be cross-examined “in regard to the content or tenor” of any such publication. (Veamatahau at 29–30, referencing Evid. Code § 721.) “Accordingly, specific references to their ‘content or tenor’ are not inadmissible because they are specific.” (Id. at 30.)
You can’t say that the Sanchez line of cases favor the plaintiff or the defendant. You can say that they favor the prepared. If you understand the bases of your expert’s opinions (and the opposition’s experts’ opinions), then you will be prepared to handle Sanchez objections at trial. If you don’t understand those bases, or you wait until trial to figure them out, then be prepared have your experts’ opinions excluded.
Donald J. Magilligan is a senior associate with Cotchett, Pitre & McCarthy. He has tried 48 jury trials during his career with CPM and the District Attorney’s Offices in Santa Clara County and Contra Costa County.