In its March 2018 revision of CC 360 CALCRIM added a citation to Sanchez but failed to explain the crucial changes that case made to the law regarding an expert’s reliance on hearsay. Nor did Calcrim suggest any revisions to the instructional language in light of Sanchez. Furthermore, as to CC 332 [Expert Witness Testimony] CALCRIM provided neither a reference to Sanchez nor an instructional revision. As a result, there appears to be a disconnect between Sanchez and the instructional language in CC 332 and CC 360.
In his criminal street gang trial Sanchez challenged the testimony of a prosecution expert witness offered to prove that the crimes were gang related. The case turned on whether the expert’s recitation of hearsay evidence in the form of police reports, a S.T.E.P. notice and a field interview card was permissible. Sanchez argued this practice violated his Sixth Amendment right to confront the people who prepared those documents.
The California Supreme Court agreed with the defense and adopted the following new rule: “When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing.”(Id. at p. 686.) (Sanchez, supra, 63 Cal.4th at pp. 684, 686.) In so holding, the Supreme Court disapproved of Gardeley, Montiel and other cases that had ruled otherwise. (Id. at p. 686, fn. 13.)
The Court predicated this new rule on the undeniable reality that “the jury must consider expert basis testimony for its truth in order to evaluate the expert’s opinion….” (Id. at p. 684.) Accordingly, “hearsay and confrontation problems [can no longer] be avoided by giving a limiting instruction that such [evidence] should not be considered for its truth.” (Ibid.)
When an expert is not testifying in the form of a proper hypothetical question and no other evidence of the case-specific facts presented has or will be admitted, there is no denying that such facts are being considered by the expert, and offered to the jury, as true. Indeed, the jury here was given a standard instruction that it “must decide whether information on which the expert relied was true and accurate.” (CALCRIM No. 332 [Expert Witness Testimony].) Without independent competent proof of those case-specific facts, the jury simply had no basis from which to draw such a conclusion. The court also confusingly instructed the jury [per CC 360] that the gang expert’s testimony concerning “the statements by the defendant, police reports, F.I. cards, STEP notices, and speaking to other officers or gang members” should not be considered “proof that the information contained in those statements was true.” Jurors cannot logically follow these conflicting instructions. They cannot decide whether the information relied on by the expert “was true and accurate” without considering whether the specific evidence identified by the instruction, and upon which the expert based his opinion, was also true.
In light of the above, those portions of CC 332 and CC 360 identified by the Supreme Court as inconsistent with the rule announced in Sanchez should be re-examined.