California Hearsay Challenge

I. Introduction

Currently, there is some slow progress being made in the quest to reform the use of hearsay in California criminal and Sexually Violent Predator Act (SVP or SVPA) proceedings.   Part of this progress began in 2016, when the California Supreme Court heard a case, People v. Sanchez (2016) 63 Cal.4th  665, that changed the way California applied Crawford v. Washington (2004) 541 U.S. 36 to state court proceedings.  Following the reasoning of the high Court in Williams v. Illinois (2012) 567 U.S. 50, the California Supreme Court did away with the (fraudulent) reasoning that expert testimony was “not admitted for its truth” when applied to case-specific facts.  The Sanchez court adopted the reasoning that, when an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert’s opinion, it cannot logically be asserted that the hearsay content is not offered for its truth.

Below is a summary of the argument I currently have pending before the California Court of Appeal, Second Appellate District, Division 2, which is scheduled for oral arguments in the summer of 2019.  It has been my primary focus for the last year, apart from helping research and argue issues for The [Coalinga Legal Advocacy] Working Group. (Case name: In re JOSEPH MURL BENNETT on Habeas Corpus, Case Number B292368.)  You can follow along here by entering my case number (automatic e-mail notifications are also available by request).


II. The Pertinent California Law

A. General legal principles

In California, hearsay is defined as an out-of-court statement by someone  other than the testifying witness offered to prove the truth of the matter stated, is generally inadmissible unless it falls under an  exception. (Evid. Code, § 1200, subds. (a), (b); People v. Sanchez (2016) 63 Cal.4th 665, 674; People v. Zamudio (2008) 43 Cal.4th 327, 350.)  Documents like reports, criminal records, hospital records, and  memoranda — prepared outside the courtroom and offered for the truth of the information they contain — are usually themselves  hearsay and may contain multiple levels of hearsay, each of which is inadmissible unless covered by an exception. (Sanchez, at p. 675.)

Although expert witnesses frequently acquire knowledge in  their field of expertise from hearsay sources, “[t]he hearsay rule  has traditionally not barred an expert’s testimony regarding his general knowledge in his field of expertise.” (Sanchez, supra, 63 Cal.4th at p. 676.) Thus, an expert witness may offer opinions  based on any matter, including special knowledge, skill, experience, training, and education, “whether or not admissible,  that is of a type that reasonably may be relied upon” by experts in the field. (Evid. Code, § 801, subd. (b).) And prior to Sanchez, an expert witness was also permitted to relate case-specific  hearsay to the jury, as long as the jury was instructed that it could only consider the expert’s recitation of such information for  its effect on the expert’s opinion, and not for its truth. (People v.  Bell (2007) 40 Ca1.4th 582, 608, overruled by Sanchez, supra, 63 Cal.4th at p. 686, fn. 13; People v. Montiel (1993) 5 Ca1.4th 877,  918-919, overruled by Sanchez, supra, at p. 686, fn. 13; People v.  Coleman (1985) 38 Cal.3d 69, 92, overruled by Sanchez, supra, at  p. 686, fn. 13; People v. Dean (2009) 174 Cal.App.4th 186, 197  [applying these rules in SVP proceedings].)


B. Sanchez

In Sanchez, the California Supreme Court ended this practice and  abandoned the “not-admitted-for-its-truth rationale” with respect  to case-specific hearsay. (People v. Stamps (2016) 3 Cal.App.5th  988, 994.) Sanchez preserved an expert’s ability to rely on and  cite “background information accepted in [his or her] field of  expertise,” as well as an expert’s ability to rely on and “tell the  jury in general terms” that he or she relied upon hearsay evidence. (Sanchez, supra, 63 Ca1.4th at p. 685.) But an expert’s  recitation of case-specific facts, which Sanchez defined as “those  relating to the particular events and participants alleged to have  been involved in the case being tried,” is a different matter. (Id. at p. 676.) Sanchez held that an expert is prohibited from  testifying to such facts if they are outside the expert’s personal  knowledge and do not fall under an exception to the hearsay rule or have not been independently established by competent  evidence. (Id. at pp. 676-677, 686.)

Thus, like any other hearsay evidence, case-specific  hearsay an expert relates to the trier of fact as true is not admissible  unless a proper foundation has been laid for its admission under an applicable hearsay exception. “Alternatively, the evidence can  be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner.” (Sanchez, supra, 63 Ca1.4th at p. 684,  fn. omitted; People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 510.)  However, an underlying fact that has not been proven by  independent admissible evidence may not be included in a hypothetical question posed to the expert. (Sanchez, at pp. 677, 686; Stamps, supra, 3 Cal.App.5th at p. 996.)

C. The application of Sanchez to SVP proceedings

Sanchez is not confined to criminal cases. In particular, courts have held Sanchez applicable to SVP proceedings in  several published opinions, including the decision in Roa,  11 Cal.App.5th 428. (See People v. Flint (2018) 22  Cal.App.5th 983, 998-999, 1005; People v. Bocklett (2018) 22  Cal.App.5th 879, 890; Burroughs, supra, 6 Cal.App.5th 378.)

In Burroughs, the People proved the existence and facts of  Burroughs’s qualifying sexually violent offenses by presenting  documentary evidence made admissible by Welfare and Institutions Code section 6600, subdivision (a)(3), including a  Penal Code “section 969b prison packet” and probation reports that recited the facts underlying the qualifying convictions. (Burroughs, supra, 6 Cal.App.5th at p. 403.) Because the  existence and details of the predicate offenses had been  independently established by admissible documentary evidence, Burroughs concluded that “the experts were permitted to relate  the facts to the jury as the basis of their opinions,” consistent  with Sanchez. (Ibid.)

But the Burroughs court found that not all of the information contained in the documentary evidence was relevant or  admissible to prove the qualifying offenses. (Burroughs, supra, 6 Cal.App.5th at pp. 410-411.) Such information included  references to uncharged offenses and other conduct, as well as information about appellant’s prior record, his personal history,  his health, education, and employment, and the terms and conditions of probation. (Id. at p. 410.) This information, the court concluded, constituted inadmissible hearsay, and the trial  court had “erred by allowing the experts to testify to the contents of this evidence as the basis for their opinions.” (Id. at p. 411.) With respect to the hospital records, Burroughs noted that none  had been introduced or admitted at trial, and therefore “any  statements the experts made about the contents of those records  as ‘the basis for their opinions’ necessarily were improper under Sanchez. The experts were permitted to rely on those records,  and to rely on any reports other experts such as appellant’s  treating personnel prepared. [Citations.] They could not testify  to the contents of those reports, however.” (Id. at p. 407, fn. 7.)

Burroughs found the evidentiary errors to be prejudicial  and reversed the judgment. (Burroughs, supra, 6 Cal.App.5th at  pp. 412-413.) The court found that through the admission of  numerous hearsay documents and the experts’ testimony relating  “a significant amount of hearsay to the jury,” the People had presented “in lurid detail, numerous sex offenses that appellant  was not charged with or convicted of committing,” which served to depict “appellant as someone with an irrepressible propensity to commit sexual offenses, and invited the jury to punish him for  past offenses.” (Id. at p. 412.) In short, the court concluded, “the improperly admitted hearsay permeated the entirety of appellant’s trial and strengthened crucial aspects of the People’s case,” requiring reversal. (Ibid.)

Similarly, in Roa, the court found the trial court had erred in  admitting expert testimony which related case-specific facts  about uncharged offenses and other conduct drawn from investigator reports that were not subject to any hearsay  exception. (Roa, supra, 11 Cal.App.5th at p. 452.)  In addition, the Attorney General conceded error in the trial court’s admission  of expert testimony relating information contained in Roa’s state hospital records, which had not been shown to be admissible  under a hearsay objection. (Ibid.) “Finding the erroneous admission of the hearsay testimony to be prejudicial, we reversed the judgment.” (Id. at pp. 454-455; People v. Watson (1956) 46  Cal.2d 818, 836.)


III.  Improper Admission of Hearsay Through Expert Testimony in my Proceedings  

In 2012, I was originally charged with two counts of sexual assault, possession of child pornography, and failure to register as a sex offender.  On the eve of trial, and in pro se (representing myself), the district attorney dismissed the alleged sexual assault charges (the witness/victim was  located once after making the initial report concerning the allegations, but was never located again). A trial on the possession of child pornography and failure to register resulted in an acquittal of the pornography charge and a finding of guilty on the failure to register charge.  I was sentenced to seven (7) years for the failure to register conviction, and served a total of five (5) years for the conviction.

In 2017, near the conclusion of the term of imprisonment, the SVP evaluators began interviewing me for SVPA civil commitment.  In that process the evaluators relied upon the statements that the alleged witness/victim from the 2012 sexual assault allegations, and believed them.  In so doing, three of the four experts opined that I meet the criteria to be committed. (One evaluator said I did not meet the criteria, and one said that, if not for the 2012 allegations, he would not have found me to meet the criteria.)

At my probable cause hearing (in California we get a “probable cause” hearing, much like a preliminary hearing in criminal proceedings)  my appointed attorney allowed the admission of the hearsay from the 2012 incident as a basis for the experts to rely on in forming their opinions, and the court allowed the experts to actually give testimony about the 2012 incident. While my counsel did object, he did so on Sanchez grounds, which is a testimonial hearsay objection.  (In an added twist, the court said it would not allow the testimony, but in the end the court actually  relied on the 2012 incident in finding cause to hold me for trial under the SVPA.)

The state would be correct in the general assertion that many of my criminal records would have been admissible under the  hearsay exception created by section 6600, subdivision (a)(3), had they been introduced. As the California Supreme Court has observed, the  statute specifically authorizes the use of hearsay to show the details underlying the commission of a predicate offense. (Otto, 26 Ca1.4th at pp. 206-207.) More recently, however, the  high court has observed this hearsay exception applies only to  “admission of documentary evidence, not expert testimony.” (People v. Stevens (2015) 62 Ca1.4th 325, 338.) Because the  hearsay exception under section 6600, subdivision (a)(3) is  limited to documentary evidence to show the existence and details of a qualifying offense, and no such documentary evidence  was presented or admitted in this case, the experts simply could not testify to the contents of my criminal records. (See Roa,  supra, 11 Cal.App.5th at p. 452; Stamps, supra, 3 Cal.App.5th at  p.996.)

Here, no records of the 2012 incident were ever admitted through a hearsay exception, and no documents from the arrest or investigation were admitted.  So, the only “evidence” concerning this incident was the testimony of the experts themselves who had read the police reports and a probation report — which was created 10 months before the sexual assaults were dismissed, and based 100% on the contents of the police reports.

The experts also discussed my prison behavior.  The prosecution was similarly mistaken in their contention that  the expert testimony about the contents of my California Department of Corrections and Rehabilitation (CDCR) and  other records were admissible (by extension) because the underlying records were admissible under the business or official records exception  to the hearsay rule. Prison records and similar documents are often admissible as business records, assuming a custodian of records or other duly qualified witness provides proper authentication to  meet the foundational requirements of the hearsay exception. (Evid. Code, § 1271; In re R.R. (2010) 187 Cal.App.4th 1264, 1280; People v. Landau (2016) 246 Cal.App.4th 850, 872, fn. 7.)  Compliance with a subpoena duces tecum may dispense with the  need for a live witness to establish the business records exception  if the records are produced by the custodian or other qualified witness, together with the affidavit described in Evidence Code  section 1561. (Evid. Code, § 1560, subd. (b); In re R.R., at p. 1280; In re Troy D. (1989) 215 Cal.App.3d 889, 903.) In this case,  however, no such foundation was laid for any of the documents  contained in the records from which the experts testified. Moreover, contrary to any assertion by the People, the mere fact that CDCR or other files may have been subpoenaed did not make their entire contents reliable or otherwise admissible as business records. (See People v. Blagg (1968) 267 Cal.App.2d 598,609-610 [in the absence of live  testimony of a qualified witness, affidavit of an authenticating  witness is required in order to lay a proper foundation for admissibility].)

A. Prejudice

Admission of the experts’ hearsay testimony in this case was unquestionably prejudicial. my statements to the experts during interviews regarding the 2012 incident admitted that there was consensual sex acts, but none of the experts’  testimony relating case-specific facts as to the 2012 incident to the trier of fact was admissible. Without the inadmissible hearsay, the foundation for the experts’ opinions goes up in smoke, and with it most of the evidence in support of the court’s SVP finding of probable cause.   

“California has long recognized that an expert’s opinion  cannot rest on his or her qualifications alone: ‘even when the  witness qualifies as an expert, he or she does not possess a carte  blanche to express any opinion within the area of expertise. [Citation.] For example, an expert’s opinion based on  assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors [citation], has no evidentiary  value [citation] and may be excluded from evidence.’ [Citation.] California courts have been particularly chary of expert testimony based on assumptions that are not supported by the  evidentiary record: ‘an expert’s opinion that something could be true if certain assumed facts are true, without any foundation for concluding those assumed facts exist in the case before the jury,  does not provide assistance to the jury because the jury is charged with determining what occurred in the case before it, not hypothetical possibilities.'” (People v. Wright (2016) 4  Cal.App.5th 537, 545.)


IV. Changing the Game Again

In 2001, the California Supreme Court decided People v. Otto (2001) 26 Cal.4th 200 which is still valid in this state.  Otto was an SVP case, where the defendant sought to prevent the state from using the police and probation reports from his criminal conviction from being used in the SVP commitment proceedings.  However, the state had passed a statute that permitted them to do just that, Welfare & Institutions Code § 6600(a)(3). So, for Otto it went badly, as he was convicted of the crimes related to the hearsay contained in those documents by way of a no contest plea.  What the Otto court did was conclude that: “The most critical factor demonstrating reliability of the victim hearsay statements is that Otto was convicted of the crimes to which the statements relate.”  Generally this means that some portion, if not all, of the alleged conduct will have been already either admitted in a plea or found true by a trier of fact after trial. (Ibid.)

These findings were only made after evaluating any civil detainee’s due process rights and determining that there is a significant liberty interest at stake in due process when confronted with hearsay. (Otto, at p. 210 -212.)

“Because civil commitment involves a significant deprivation of liberty, a defendant in an SVP proceeding is entitled to due process protections” (Foucha v. Louisiana (1992) 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437.)   A defendant challenging the statute on due process grounds carries a heavy burden.  Courts have a “‘duty to uphold a [26 Cal.4th 210] statute unless its unconstitutionality clearly, positively, and unmistakably appears;  all presumptions and intendments favor its validity.'” (People v. Hansel (1992) 1 Cal.4th 1211, 1219, 4 Cal.Rptr.2d 888, 824 P.2d 694.)

“Once it is determined that due process applies, the question remains what process is due.”  (Morrissey v. Brewer (1972) 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484.)   “We have identified four relevant factors: (1) the private interest that will be affected by the official action;  (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;  (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail;  and (4) the dignitary interest in informing individuals of the nature, grounds, and consequences of the action and in enabling them to present their side of the story before a responsible government official.  (Malinda S., 51 Cal.3d at p. 383, 272 Cal.Rptr. 787, 795 P.2d 1244.)”

“Applying these factors to reliance on the victims’ hearsay statements in this case, we consider first that the private interests that will be affected by the official action are the significant limitations on Otto’s   liberty, the stigma of being classified as a sexually violent predator, and subjection to unwanted treatment. (See Vitek v. Jones (1980) 445 U.S. 480, 495, 100 S.Ct. 1254, 63 L.Ed.2d 552.)”

In evaluating the reliability of hearsay statements in a presentence report, a court may consider numerous factors, including the context in which the statements appear.  The presentence report is written by a [26 P.3d 1068] court officer regarding a crime to which the defendant either pled or was found guilty. Transcripts from any preliminary hearing or trial held regarding the predicate conviction are also pertinent, as well as any indicia the defendant challenged the accuracy of the hearsay statements at the underlying criminal proceeding.  Relevant factors further include the circumstances surrounding the making of the statement, if known, such as spontaneity and consistent repetition, the mental state of the declarant, use of terminology unexpected of a child of a similar age, lack of motive to fabricate, and whether the hearsay statement was corroborated. (Cf. Lucero L., 22 Cal.4th at p. 1239, 96 Cal.Rptr.2d 56, 998 P.2d 1019.)

Taking these principals, and Evidence Code sections 801, 802, and 803, I argued that state law requires that the material that any expert relies on must be reliable, otherwise it is lacking the necessary  indicia of reliability.  In California, indicia of reliability is still the required standard in order allow non-testimonial hearsay statements and uncorroborated statements of witness.  (See, In re I.C. (2018) 4 Cal.5th 869, fn 6; Idaho v. Wright (1990) 497 U.S. 805, 815; Crawford v. Washington (2004) 541 U.S. 36, 54; Ohio v. Clark (2015) 576 U.S. ___ [192 L. Ed 2d 306, 135 S. Ct. 2173, 2181-2183]; and Jackson v. Virginia (1979) 443 U.S. 307.)

As the SVPA is civil in nature we have no right to confront and cross examine in the Sixth Amendment sense.  However, due process still affords us this privilege, as well as a statutory right — again implicating due process.  Where the hearsay statements are from out-of-court statements, indicia of reliability  remains the required minimum standard in order to permit the use of out-of-court statements to be relied upon.   In my particular case I am relying on statutory law (Evidence Code), state decisional law (Otto, Sanchez, and a host of others that interpret them both), as well as United States Supreme Court decisions that mandate due process in so-called “sex offender civil commitment proceedings, and the indicia of reliability for allowing experts to use certain evidence as a basis in forming their opinions.

In combination, these tools are intended to undermine the ability of experts to use non-convictions as a basis in forming their opinions as to anyone meeting the criteria under the SVPA.

It is my hope that the above explanation will provide ideas and insight to possible avenues of attack of similar abuses in other states, and possibly spark ideas that you can share with me that can be used to conduct further attacks on various aspects of the SVPA.

I look forward to comments and inquiries.  Please write or send US mail to me directly at the address below.



Joseph M. Bennett  2318-4
DSH-C  Unit 15
P.O. Box 5003
Coalinga, CA  93210

Leave a Reply

Your email address will not be published. Required fields are marked *