People v. Sanchez represents a potentially significant evidentiary problem in the context of custody and visitation cases involving a custody evaluation and report.
Under the holding in Sanchez, which is a criminal law case, case-specific, out-of-court statements that are relied upon by an expert to form his or her opinion are considered hearsay and are inadmissible and excluded from the record unless a hearsay exception applies. Custody Evaluators, and to a lesser extent Recommending Mediators, gather collateral testimony and documents and rely on such materials in their reports to formulate their opinions regarding custody and visitation. Unless the parties stipulate to the admissibility of the Custody Evaluator’s report as a whole, any collateral evidence that may have supported the Custody Evaluator’s conclusions could potentially be excluded under Sanchez. What’s more, if the Custody Evaluator’s findings relied primarily on excludable hearsay, there’s a possibility that the report and recommendations might be excluded.
To date, this concern over whether and to what extent Sanchez applies to custody evaluations remains somewhat theoretical. The issue has not yet made its way through the appeals process and some experts in our field predict it never will due to the statutorily-sanctioned, investigative-nature of custody evaluations. Nonetheless, amongst family law attorneys, the holding in Sanchez has created uncertainty as to whether a custody evaluation and its underlying evidence will or will not be excluded. This uncertainty often leads to litigation, and with it, the associated drain on both private and public resources.
Senate Bill 1276, which could come up for a vote later this year, proposes revisions to California Evidence Code §§ 801-803 is designed to address the above problem (and similar ones from the broader context of civil litigation). The most significant changes are found within the text of § 801 of the Code.
The current language of Evidence Code § 801 code is as follows:
If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:
(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and
(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.
Under the proposed legislation, the following section would be added to the above language found Evidence Code § 801 (along with some additional relatively minor changes):
(b) In civil proceedings, evidence of a statement used to support the opinion of an expert is not made inadmissible as hearsay if the court, in its discretion, determines that the statement is reliable. In determining the reliability of a statement, a court shall consider the following:
(1) Whether, the expert routinely relies upon similar statements in his or her professional capacity outside of the court.
(2) The expertise of the expert, including his or her experience, in evaluating the trustworthiness of the sources of information relied upon in forming his or her opinions.
The new Code creates an exception to hearsay that the Court has the discretion to apply in civil cases only, looking at two factors: (1) whether the information considered by the Expert is considered routinely; and (2) whether the Expert has the experience to evaluate the trustworthiness of the sources of information. In the context of custody evaluations, the Evaluators routinely rely on collateral sources of information for their reports – such as documents, testimonials, interviews, etc. Custody Evaluators also have the experience and clinical expertise needed to sufficiently investigate the matter and to apply the proper weight and significance to the facts gathered by them. For example, Evaluators rarely rely on a particular collateral source without assessing the information obtained from one such source in relation to other data and information. Therefore, it seems likely that the case-specific, out-of-court statements often relied on by Custody Evaluators — which may be considered hearsay in other contexts — will not be excluded as such under SB 1276’s proposed revisions to the Evidentiary Code.
Sanchez seems to make sense in the criminal law arena, where the individual rights that are at stake may require the highest due process protections and a more strict application of the hearsay rules. SB 1276 is designed to eliminate the uncertainty created by Sanchez in the context of civil matters that often rely on expert testimony, such as in the custody evaluation context. For many family law practitioners in particular, the above distinction between criminal and civil practice under the new proposed code is a welcome change. Hopefully, SB 1276 will pass.