Description

I used these slides at the SoCal AAML Meeting on April 16, 2022, presenting NOTMA’s BED, a mnemonic approach to presenting expert testimony in family law cases.

I’ll be presenting again to the Santa Barabara and Northern Santa Barbara Bar Associations on July 26 and 27, 2022.

Preface

In the original presentation, I polled the participants with hypothetical objections. I’ve adapted the polls for use on this site.

There are several hypothetical objections below. To reveal the ruling on the objection, click the triangle to the left of the word “Ruling.”

Practice objection

This is a description of some possibly objectionable evidence.

Objection, hearsay!

Ruling (click on the triangle to reveal)

Sustained!

Nice job!

What will we learn?

A mnemonic approach to

  • Hearsay
  • Case-specific v. background
  • Valuable hearsay exceptions
  • Consider -> rely -> describe -> relate

A checklist

The Checklist Manifesto

[T]he volume and complexity of what we know has exceeded our individual ability to deliver its benefits correctly, safely, or reliably….

It is common to misconceive how checklists function in complex lines of work. They are not comprehensive how-to guides…. They are quick and simple tools aimed to buttress the skills of expert professionals.

Atul Gawande, M.D., M.P.H.

My assumption

You need a Sanchez checklist

Because you are an expert professional (AAML fellow)

My goal

To answer your questions

Don’t be shy about interrupting!

Let’s review Sanchez

What an expert cannot do is [4] relate as true [2] case-specific facts asserted in [1] hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay [3] exception.

People v. Sanchez (2016) 63 Cal. 4th 665, 686.

Let’s break down the rule

Sanchez prohibits

  1. Hearsay
  2. Case-specific
  3. With no exception
  4. Related to the trier of fact

All of the above must be true

Let’s break down the obverse

Sanchez doesn’t apply to

  1. Not hearsay
  2. Not case-specific
  3. With an exception
  4. Not related to the trier of fact

Any of the above can be true

Put another way….

The checklist

  1. Not Offered for the Truth of the Matter Asserted
  2. Background
  3. Exceptions
  4. Describe, don’t relate

This sequence means something

Brief hypo

  • Husband: self-employed, supporting spouse
  • Wife: homemaker, former teacher, supported spouse
  • Vocational expert for wife’s earning capacity
  • Forensic accountant for husband’s business

We won’t deal with Moore/Marsden or Pereira/Van Camp

NOTMA

Not Offered for the Truth of the Matter Asserted

Garland, An Overview of Relevance and Hearsay: A Nine Step Analytical Guide, 22 Sw. U. L. Rev. 1039 (1993)

Job advertisements?

The vocational expert testifies

I reviewed advertisements for teaching jobs. Many school districts in this county advertised jobs paying up to $50K per year.

Objection, hearsay!

Ruling

Overruled

[T]he court properly ruled the ads were admissible for the nonhearsay purpose of showing that offers to bargain existed.

In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, 1338

Cooked books?

The forensic accountant testifies

The business’s QuickBooks entries are inaccurate. They are internally inconsistent, and the numbers just don’t add up.

Objection, hearsay!

Ruling

Overruled

To the extent the QuickBooks documents were offered to prove their falsity, we agree … that they were not hearsay. “A statement is not hearsay when offered to show the statement is false.” [Citations.]

People v. Selivanov (2016) 5 Cal.App.5th 726, 775, as modified on denial of reh’g (Dec. 13, 2016)

Machine-generated data?

The forensic accountant testifies

The business’s cash registers automatically record the date, time, and total of each transaction. The receipts show total revenue for 2021 was $50K.

Objection, hearsay!

Ruling

Overruled

The printed portions of the PIC receipts, including the date, time, and totals, were not statements inputted by a person, but were generated by the PIC machine.

People v. Nazary (2010) 191 Cal.App.4th 727, 754, disapproved on other grounds

Only people can make statements; machines cannot.

Sanchez, 63 Cal.4th at p. 690, fn. 16

Step 1 recap

NOTMA

Not Offered for the Truth of the Matter Asserted

  • Must it be true to be probative?
  • Is it offered for its falsity?
  • Is it machine-generated?

Background v. case-specific

Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried.

Sanchez 63 Cal.4th 665, at p. 676, emphasis added.

Wage data?

Vocational expert testifies

The BLS Overview of Wage Data by Area and Occupation (a reliable source) shows that Southern California teachers make $50K per year.

Objection, hearsay!

Ruling

Overruled

[A]n expert may consult specific sources in a case — a textbook, a treatise, or an academic paper — and supply the information found therein to the jury as background information without running afoul of the hearsay rules.

People v. Veamatahau (2020) 9 Cal.5th 16, 29

Employment records?

Vocational expert testifies

Wife’s prior employment records show that she was an excellent teacher, commended several times during her employment and earning several raises.

Objection, hearsay!

Ruling

Sustained

[Background] information stands in contrast to information regarding [a particular event] on a specific occasion. Experts with no personal knowledge of case-specific facts, or who do not rely on other admissible evidence establishing those facts, are simply regurgitating information from another source.

People v. Valencia (2021) 11 Cal.5th 818, 838, internal quotations omitted

But wait

Aren’t wife’s prior employment records business records under EC 1271?

Answer

Yes, but

The [proffering party] suggests any case-specific hearsay related by [the expert] came from … records qualifying for … the business records exception…. While perhaps true, no attempt was made at trial to establish a proper business records foundation….

Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1285

Step 2 recap

Background

  • Background hearsay is admissible
  • Background can be specific sources
  • Case-specific means the case’s people and events

Key question: does the accuracy of the information depend on the facts of the case?

Exceptions

Common exceptions you can use:

  • Business records, EC 1271
  • Admission by party opponent, EC 1220 et seq.
  • Published compilations, EC 1340

Business records, EC 1271

The writing

(a) was made in the regular course of a business;

(b) was made at or near the time of the act, condition, or event it records;

(c) custodian or other qualified witness testifies to its identity and mode of preparation; and

(d) sources of information and method and time of preparation indicate trustworthiness.

Custodian of records?

Husband’s receptionist testifies to authenticate business records

I did not personally enter transactions, nor did I ensure their accuracy, but I am familiar with how other employees created the records in the normal course of business.

Objection, hearsay!

Ruling

Probably overruled

The witness need not have been present at evarsay, they are inadmissible independently to prove that liability for the repairs was incurred [or] that payment was made.

If … a party testifies that he incurred or discharged a liability … any of these documents may be admitted for the limited purpose of corroborating his testimony.

Pacific Gas & Elec. Co. v. G. W. Thomas Drayage & Rigging Co. (1968) 69 Cal.2d 33, 42–43

Admissions, EC 1220

Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.

What does he know?

During examination by wife, accountant testifies

Husband told me that the bank statements I reviewed were authentic. They show $1M deposits in 2021.

Objection, hearsay and foundation!

Ruling

Overruled

The usual requirement of personal knowledge is dispensed with in the case of admissions.

Levy-Zentner Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, 787, citations omitted

An inadmissible opinion can be admissible if it’s an admission by a party opponent. Ibid.

Turn them over!

During examination by wife, accountant testifies

The bank statements, which I received after the court ordered them, show $1M deposits in 2021.

Objection, hearsay and foundation!

Ruling

Overruled

ITC presented the information to the court after being ordered to do so…. The documents were from ITC and were presented to the court by ITC’s counsel…. This is all the authentication that is required. (Evid.Code, §§ 1414, 1420, 1421.) Once authenticated, the two page unaudited consolidating income statements … [were] an admission which was admissible against ITC.

StreetScenes v. ITC Ent. Grp., Inc., 103 Cal. App. 4th 233, 244, 126 Cal. Rptr. 2d 754, 761 (2002)

Unverified “discovery”?

Wife testifies

Instead of responding to the RFP, husband handed me the business’s records during a child exchange. I gave them to the accountant.

During examination by wife, accountant testifies

The business records showed $1M gross revenue.

Objection, hearsay!

Ruling

Overruled

There was no error in the admission of the paper containing a statement of sales made by defendant, and the dates of sales. The typewritten portion of the paper was handed to plaintiff by defendant….

Keith v. Elec. Eng’g Co., 136 Cal. 178, 181–82, 68 P. 598, 599 (1902)

Published compilations, EC 1340

Evidence of a statement, other than an opinion, contained in a tabulation, list, directory, register, or other published compilation is not made inadmissible by the hearsay rule if the compilation is generally used and relied upon as accurate in the course of a business as defined in Section 1270.

Published compilation examples

“Published” includes web publishing

  • Kelley Blue Book, Jenkins 70 Cal.App.5th 175
  • Ident-A-Drug website, Mooring 15 Cal.App.5th 928
  • Annuity tables, Emery 72 Cal.App.2d 821
  • Life expectancy, Christiansen 44 Cal.App.2d 332
  • Traffic safety data, Collins 214 Cal.App.4th 1486
  • Stock exchange reports, Vogt 66 Cal. 31
  • Magazine readership survey, Lockyer v. RJ Reynolds 116 Cal.App.4th 1253

Step 3 recap

Exceptions

Business records, EC 1271

  • custodian or other qualified witness

Admission by party opponent, EC 1220 et seq.

  • doesn’t require personal knowledge
  • doesn’t require verified discovery response
  • can be authenticated by conduct

Published compilations, EC 1340

  • don’t forget about this one
  • shouldn’t need unless you lose on background

Describe

There is a distinction … between allowing an expert to describe the type or source of the matter relied upon as opposed to presenting … case-specific hearsay.

Sanchez 63 Cal. 4th 665, 686, emphasis added.

Any expert may still rely on hearsay … and may tell the jury in general terms that he did so.

Sanchez 63 Cal.4th 665, 685, emphasis in original.

What did you review?

Vocational expert testifies

I spoke with wife’s former employers and colleagues, reviewed her employment records, and reviewed her educational records.

Objection, hearsay!

Ruling

Overruled

K.W. suggests it was Sanchez error when Bravo testified that, in formulating his opinion, he received “[a] lot of the information about [K.W.’s] past and his functioning in other settings” provided by “other people.” Sanchez does not change the rule of Evidence Code section 801, subdivision (b), that an expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so.

Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1285

Step 4 recap

Describe

An expert can

  • Consider inadmissible hearsay
  • Rely on inadmissible hearsay
  • Describe inadmissible hearsay

An expert cannot relate inadmissible hearsay

Recap

The Checklist

  1. NOTMA
  2. Background
  3. Exceptions
  4. Describe, don’t relate

Questions?

https://jacksonlucky.net/posts/sanchez/notmas-bed/

https://bit.ly/aaml-2022-04-16

Thank you

Jackson Lucky, JAMS