SB 435: Family law: evidence.

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2019-2020 Regular Session

Bill No: SB 435 (Author:Moorlach)

Version: April 11, 2019

Hearing Date: April 23, 2019

Fiscal: Yes

Urgency: No

Consultant: JDT

SUBJECT

Family law: evidence

DIGEST

This bill allows specified case-specific hearsay in certain family law proceedings.

EXECUTIVE SUMMARY

In both criminal and civil law, hearsay evidence—an out-of-court statement offered for the truth of its content—is generally inadmissible, with certain narrow exceptions. Hearsay statements are considered unreliable because they are not made under oath, an adverse party has no opportunity to cross-examine the declarant, and the jury cannot observe the declarant’s demeanor while making the statements. While lay witnesses are allowed to testify only about matters within their personal knowledge, expert witnesses have been given greater latitude to relate opinions and general information within their expertise, even if it technically constitutes hearsay because it relies on information that has not been independently introduced as evidence, such as studies or academic treatises. (See Evid. Code §§ 702(a), 720(a), 801(a).) However, the California Supreme Court clarified in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) that this latitude does not extend to case-specific facts about which the expert has no independent knowledge, a longstanding common law distinction that had become “blurred” in case law, allowing experts to become conduits for unreliable out-of-court statements. (Id. at 678.)

Premised on the assertion that Sanchez, in the context of family law, needlessly congests courts and burdens litigants, this bill would (1) presumptively allow hearsay in certain business records and expert testimony to establish the character and value of property, and (2) automatically allow hearsay statements contained in a timely-filed child custody report, subject to a right of cross-examination. The bill is sponsored by the California Association of Certified Family Law Specialists. It is opposed by the California Judges Association and the Judicial Council.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Establishes California’s hearsay rule, which provides that “hearsay evidence” is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. Except as provided by law, hearsay evidence is inadmissible. (Evid. Code § 1200.)
2. Provides numerous exceptions to the hearsay rule when certain conditions are met, including for official records, admissions of a party, and business records. (Evid. Code § 1220 et seq.)
3. Provides that if a witness is testifying as an expert, their testimony in the form of an opinion is limited to such an opinion as is:
   1. related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and
   2. based on matter (including the expert’s special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to the witness 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 the expert’s testimony relates, unless an expert is precluded by law from using such matter as a basis for their opinion. (Evid. Code § 801.)
4. Provides that a witness testifying in the form of an opinion may state on direct examination the reasons for its opinion and the matter (including, in the case of an expert, its special knowledge, skill, experience, training, and education) upon which it is based, unless the expert is precluded by law from using such reasons or matter as a basis for their opinion. The court, in its discretion, may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which their opinion is based. (Evid. Code § 802.)
5. Provides that the court may, and upon objection shall, exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion. In such cases, the witness may, if there remains a proper basis for their opinion, then state their opinion after excluding from consideration the matter determined to be improper. (Evid. Code § 803.)
6. Provides that except as otherwise provided, the rules of practice and procedure applicable to civil actions generally, apply to, and constitute the rules of practice and procedure in, proceedings under the Family Code. (Fam. Code § 210.)
7. Provides that in any contested proceeding involving child custody or visitation rights, the court may appoint a child custody evaluator to conduct a child custody evaluation in cases where the court determines it is in the best interests of the child, in accordance with standards adopted by the Judicial Council. If directed by the court, the court-appointed child custody evaluator must file a written confidential report on their evaluation. If the report is filed 10 days before the custody hearing and complies with these standards, the report may be considered by the court. (Fam. Code § 3111(a).)
8. Provides that this report may be received in evidence on stipulation of all interested parties, in which case its contents are considered competent evidence as to all matters contained in the report. (Fam. Code § 3111(c).)

This bill:

1. Finds and declares that it is:
   1. the policy of the State of California to avoid needlessly complicating the process of proof, generating delay, increasing costs, and in many cases, creating a nearly impossible burden to obtain admissible evidence in family law proceedings; and
   2. the intent of the Legislature to create an exception to People v. Sanchez (2016) 63 Cal.4th 665, as it applies to proof in family law proceedings.
2. Provides that in establishing the character and value of separate and community property, a party may rely on hearsay evidence, in accordance with the following standards:
   1. business records used in the ordinary course of business may be authenticated by the proponent and admitted into evidence without the need for the custodian of records or other qualified witness to testify to the identity and mode of preparation; and
   2. hearsay statements relied upon by an expert in forming the expert’s opinion may be admitted into evidence upon the testimony of the expert that those types of hearsay statements are routinely relied upon by the expert in the formulation of the expert’s opinion and have been evaluated by the expert and determined to be trustworthy.
3. Provides that a party that challenges the reliability of hearsay evidence relied upon under 2) above has the burden of persuading the court that the hearsay evidence is unreliable and should be excluded from evidence. However, if the hearsay evidence is excluded, the expert may, if there remains a proper basis for the expert’s opinion, state the expert’s opinion after excluding from consideration the inadmissible hearsay.
4. Deletes the existing provision stating that a child custody evaluation report may be received in evidence on stipulation of all interested parties, and instead provides that a report based on a full or partial court-ordered evaluation, child custody recommending counseling (CCRC) recommendation, investigation, or assessment may be received into evidence if it complies with standards to be adopted by the Judicial Council and is provided to the court and to all parties or their counsel at least 10 days before the custody hearing. Additionally:
   1. requires that the preparer of the report be available for cross-examination upon timely subpoena by a party at that party’s expense;
   2. enables a party to introduce admissible evidence and subpoena and cross-examine a witness whose statement was relied upon by the preparer in forming an opinion, in order to contradict, explain, or place the statement into context, or to provide the court evidence as to the weight that should be accorded the statement;
   3. specifies that if the hearsay declarant is a witness and it is clear that the hearsay was significantly relied on by the preparer in forming an opinion, the proponent of the hearsay evidence has the burden to produce the witness to testify and be cross-examined; and
   4. provides that hearsay statements from a professional who interacts with families and children, including a teacher, doctor, optometrist, or mental health professional, are presumed to be admissible, subject to a party’s right to challenge the statement by cross-examination. Hearsay statements contained in reports, including medical and dental records, school notices, report cards, progress reports, and normal business records of mental health professionals, are presumed to be admissible.
5. Requires the Judicial Council, by January 1, 2021, to:
   1. adopt standards for recommendations made by CCRC professionals appointed by the court to make recommendations to the court in cases in which the parties cannot reach agreement on custody and visitation rights; and
   2. promulgate a statewide rule of court requiring a person conducting an evaluation, investigation, or assessment in a child custody case to make and maintain a detailed record of all interviews conducted during the evaluation, investigation, or assessment process. The record must be made during or immediately following each interview. Interview records must be maintained in the preparer’s case file until the case is resolved by final order, including any ruling on appeal.

COMMENTS

1. Narrower version of SB 1276 (Moorlach, 2018)

Last session, the author proposed SB 1276, which, as introduced, would have abrogated Sanchez as it applies to civil proceedings by providing that evidence of a statement used to support the opinion of an expert is not inadmissible as hearsay if the court, in its discretion, determines that the statement is reliable. The bill would have required the court to consider certain factors in making its determination. This sweeping proposal drew the opposition of numerous organizations, including the Consumer Attorneys of California, which wrote that:

CAOC opposes legislatively overturning Sanchez. A trial is a search for the truth, and Sanchez only helps courts to that end. SB 1276 creates a large loophole that allows otherwise inadmissible hearsay to be offered to the jury as a truthful statement through the testimony of an expert. It is extremely problematic to allow experts to regurgitate hearsay on the stand without proper foundation. This leaves the cross examining party with no recourse to cross examine the expert on the stand who is quoting someone else’s statements or opinions that may or may not be truthful. This is the crux of why hearsay is inadmissible. Under current law, in order for an expert to testify to hearsay, the witness who made the statement must testify first about what was said and lay proper foundation for the truth of that statement.

SB 1276 undermines long standing law and hurts victims by preventing them from getting a fair trial.

The bill was then amended to apply only to proceedings under the Family Code; however, it was pulled at the author’s request before it could be heard in this Committee. The amended version was opposed by several organizations with expertise in family law, including The Executive Committee of the Family Law Section of the California Lawyers Association (FLEXCOM) and California Association of Certified Family Law Specialists (ACFLS). They argued that the bill was overly broad, premature, and potentially undermined an important evidentiary safeguard.

Specifically, FLEXCOM arrived at the following conclusions regarding the application of Sanchez in family law proceedings:

1. Sanchez is a correct and accurate pronouncement of the rules of evidence concerning hearsay.
2. Sanchez did not create new law—it returned courts to the rules regarding hearsay evidence that existed previously. As stated in the Sanchez decision: “Our conclusion restores the traditional distinction between an expert’s testimony regarding background information and case-specific facts.”
3. Family law is civil law and should not be subject to a separate evidence code or rules of evidence. Family law attorneys are frequently addressing issues that have a life-altering [e]ffect on our clients: custody of children, the division of assets and the payment or receipt of support. Creating a family-law-only exception to the rules of evidence concerning hearsay means that those important issues are going to be decided by evidence that would be inadmissible in all other litigation, civil or criminal.

ACFLS recognized that Sanchez may cause unnecessary delay, but opposed the bill as “far too broad and sweeping” and argued that the bill failed to “provide any safeguards against unreliable testimony.” As described in more detail below, this bill is a narrower version of SB 1276 that is sponsored by ACFLS.

2. Sanchez restored the traditional distinction between an expert’s testimony regarding background information and case-specific facts

• 1. Hearsay generally

California’s hearsay rule provides: “‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. . . . Except as provided by law, hearsay evidence is inadmissible.” (Evid. Code § 1200.) The general exclusion of hearsay from evidence is premised on the notion that out-of-court statements are inherently more unreliable than live testimony. Specifically, hearsay statements are not made under oath, the adverse party has no opportunity to cross-examine the declarant, and the jury cannot observe the declarant’s demeanor while making the statements. (People v. Duarte (2000) 24 Cal.4th 603, 610.)

Courts developed categorical exceptions to the hearsay rule because of the perception that certain statements are inherently reliable despite the absence of direct testimony and because the need for certain evidence outweighs the risks. (See Matthews, Making the Crucial Connection: A Proposed Threat Hearsay Exception (1993) 27 Golden Gate U. Law Rev. 117.) For example, statements made when the declarant knows the declarant is about to die or excited statements made without an opportunity to reflect are considered more believable because the declarant has neither the motive nor the time to fabricate the statement. (Evid. Code § 1240 [spontaneous, contemporaneous, or dying declarations as an exception to the hearsay rule].) Existing law also provides a hearsay exception applicable to writings for which all of the following apply: (1) the writing was made in the ordinary course of business; (2) the writing was made at or near the time of the act, condition, or event memorialized in the writing; (3) a qualified witness testifies to its identity and the mode of its preparation; and (4) the sources of information and method and time of preparation were such as to indicate its trustworthiness. (Evid. Code § 1271.) In general, however, hearsay is presumptively unreliable.

• 1. People v. Sanchez

In 2016, the California Supreme Court issued an opinion addressing the treatment of hearsay in the context of an expert’s opinion testimony. (Sanchez, supra, 63 Cal.4th 665.) Specifically, the court clarified the proper application of Evidence Code sections 801 and 802, relating to the scope of expert testimony. The court started with a general overview of how California’s evidentiary law treats the testimony of experts:

While lay witnesses are allowed to testify only about matters within their personal knowledge (Evid. Code, § 702, subd. (a)), expert witnesses are given greater latitude. “A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720, subd. (a).) An expert may express an opinion on “a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) In addition to matters within their own personal knowledge, experts may relate information acquired through their training and experience, even though that information may have been derived from conversations with others, lectures, study of learned treatises, etc. This latitude is a matter of practicality. A physician is not required to personally replicate all medical experiments dating back to the time of Galen in order to relate generally accepted medical knowledge that will assist the jury in deciding the case at hand. An expert’s testimony as to information generally accepted in the expert’s area, or supported by his own experience, may usually be admitted to provide specialized context the jury will need to resolve an issue. When giving such testimony, the expert often relates relevant principles or generalized information rather than reciting specific statements made by others.

(Id. at 675.) The court stated that the hearsay rule generally does not bar an expert’s testimony regarding the expert’s general knowledge in the relevant field of expertise, as opposed to instances in which an expert relates case-specific facts about which the expert has no personal knowledge. (Id. at 676.) In many cases, the facts underlying the matter before the court are established by witnesses with personal knowledge of those facts, and experts are used to discern and explain the importance of those facts. This is commonly done through the use of hypotheticals posed to experts based on facts that the questioning party has independently established.

In Sanchez, the court detailed the traditional distinction between an expert’s testimony regarding background information and case-specific facts, and discussed how that distinction had become “blurred” over time. (Id. at 678.) Some courts had been allowing experts to offer testimony regarding case-specific facts about which they had no personal knowledge, as long as juries were instructed that matters admitted through an expert go only to the basis of their opinion and should not be considered for their truth. (Id. at 679.) The California Supreme Court in Sanchez ruled that “this paradigm is no longer tenable because an expert’s testimony regarding the basis for an opinion must be considered for its truth by the jury.” (Ibid.; emphasis in original.) The court continued:

Once we recognize that the jury must consider expert basis testimony for its truth in order to evaluate the expert’s opinion, hearsay and confrontation problems cannot be avoided by giving a limiting instruction that such testimony should not be considered for its truth. If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through 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.

(Id. at 684.) Ultimately, the court adopted the following 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.” (Id. at 686.) The court reasoned that in such situations it “cannot logically be maintained that the statements are not being admitted for their truth.” (Id.) However, the court made clear that an expert could still rely on hearsay in forming the expert’s opinion, and may even tell the jury “in general terms” that the expert did so. (Id. at 685.) The court explained:

Because the jury must independently evaluate the probative value of an expert’s testimony, Evidence Code section 802 properly allows an expert to relate generally the kind and source of the “matter” upon which his opinion rests. A jury may repose greater confidence in an expert who relies upon well-established scientific principles. It may accord less weight to the views of an expert who relies on a single article from an obscure journal or on a lone experiment whose results cannot be replicated. There is a distinction to be made between allowing an expert to describe the type or source of the matter relied upon as opposed to presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception.

(Id. at 685-686.)

Thus, Sanchez did not create new law; rather, it returned courts to the rules regarding hearsay evidence that existed previously. The court stated that “our decision does not affect the traditional latitude granted to experts to describe background information and knowledge in the area of his expertise. Our conclusion restores the traditional distinction between an expert’s testimony regarding background information and case-specific facts.” (Id. at 685.)

3. The holding and rationale of Sanchez apply to family law proceedings

As described above, the California Supreme Court in Sanchez restored the traditional rule under California’s rules of evidence that prevents hearsay-wolves in expert-sheep clothing from acting as conduits for case-specific hearsay. A recent article describes how Sanchez’s reinstates important protections against the introduction of unreliable evidence:

What resulted was that the pre-Sanchez paradigm effectively amounted to a hearsay exception, even though no such hearsay exception existed. The blurring of this line between general background knowledge and case-specific facts has, arguably, opened the door to abuse; namely, expert witnesses being used as conduits to transmit inadmissible hearsay that does not otherwise fall under a statutory exception as assertions of fact to the jury. With such a liberal approach to admissibility, there is a risk that damaging inadmissible evidence, which would be unable to make its way to the jury through the proper channels, could be smuggled to the jury through the expert; or worse, parties may offer expert testimony simply to place such damaging evidence before the fact-finder disguised as expert basis testimony. The Sanchez rule curbs this potential for abuse with its bright-line rule prohibiting an expert from relating all case-specific hearsay statements forming the basis of the expert’s opinion, unless such hearsay statements fall under an applicable hearsay exception or are properly admitted independent of the expert’s testimony.^[1]

Other law review articles have similarly noted that the pre-Sanchez paradigm was harmful in the context of family law proceedings, and that Sanchez’s restoration of the traditional common law distinction between an expert’s general knowledge and case-specific hearsay revived an important protection for family law litigants. One such article describes the pre-Sanchez paradigm as “legal legerdemain” and states that family courts should have the same rules as other courts.^[2] Another article argues that policymakers evaluating hearsay rules in the context of family law would be “well-advised to seriously consider restoring the common law safeguards of insistence that all expert predicates are drawn from facts in evidence. This can be accomplished by requiring that all third-party sources testify subject to the rigors of cross-examination.”^[3]

The author fails to establish that the pre-Sanchez rules sufficiently protect family law litigants when the Supreme Court has found that it is insufficient as a general matter for purposes of California’s rules of evidence. Although Sanchez addressed hearsay in the context of a criminal proceeding before a jury, the court expressly stated that “we clarify the proper application of Evidence Code sections 801 and 802, relating to the scope of expert testimony.” Existing law provides that except as otherwise provided, the rules of practice and procedure applicable to civil actions generally, apply to, and constitute the rules of practice and procedure in, proceedings under the Family Code. (Fam. Code, § 210; see also Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1354.) The author and sponsor contend that family law is distinct in that judges, rather than juries, are the finders of facts. However, there are numerous other litigation contexts in which a judge alone acts as a trier of fact; it is not clear why those contexts differ from family law. In many ways, a judge is in no better position than a jury when it comes to evaluating the reliability of out-of-court statements by witnesses who cannot be cross-examined or observed for their demeanor. In fact, the California Judges Association, which opposes this bill, states that they “believe it is not appropriate to make family law specific evidentiary rules. Family law litigants are entitled to the same protections in the law that all litigants are entitled to.”

And while the author offers a few examples of situations in which Sanchez may encumber the process, the author fails to offer any actual data to support the author’s assertions that Sanchez is “disastrous” and is “causing havoc” in family law because parties are “weaponizing” the rules of evidence. The bill’s findings would state that an exception to Sanchez is necessary “to avoid needlessly complicating the process of proof, generating delay, increasing costs, and in many cases, creating a nearly impossible burden to obtain admissible evidence in family law proceedings.” No explanation is offered as to why family law has been singularly affected while other civil litigation continues to function despite Sanchez. Writing in opposition, the Judicial Council states that SB 435 “creates a significant exception to [Sanchez] that would set Family Law apart from other case types in terms of evidentiary standards for hearsay without a compelling rationale for doing so.”

Furthermore, while it may be the case that some parties are “weaponizing” the traditional rules of hearsay evidence, it is also the case that other parties are using these well-established rules as shield. The vast majority of family law litigants are not represented by counsel. For those litigants, it is arguably even more important to maintain longstanding, road-tested evidentiary protections. In fact, the California Supreme Court has expressly rejected the contention that relaxed evidentiary protections may be appropriate for family law proceedings, stating that “the same judicial resources and safeguards should be committed to a family law trial as are committed to other civil proceedings.” (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1368.) Thus, it is arguable that there is no compelling justification for providing family law litigants with weaker evidentiary protections than other litigants.

4. Abrogates the protections of Sanchez for certain family law proceedings in which property rights, parental rights, and child wellbeing are at stake

1. Potentially enables unreliable case-specific hearsay evidence to be used to determine property rights

This bill would provide that in establishing the character and value of separate and community property, a party may rely on hearsay evidence, in accordance with the following standards:

• business records used in the ordinary course of business may be authenticated by the proponent and admitted into evidence without the need for the custodian of records or other qualified witness to testify to the identity and mode of preparation; and
• hearsay statements relied upon by an expert in forming the expert’s opinion may be admitted into evidence upon the testimony of the expert that those types of hearsay statements are routinely relied upon by the expert in the formulation of the expert’s opinion and have been evaluated by the expert and determined to be trustworthy.

The bill would provide that a party that challenges the reliability of hearsay evidence relied upon under the standards described above has the burden of persuading the court that the hearsay evidence is unreliable and should be excluded from evidence. However, if the hearsay evidence is excluded, the expert may, if there remains a proper basis for the expert’s opinion, state the expert’s opinion after excluding from consideration the inadmissible hearsay.

At the outset, it should be noted that this provision shifts the burden to exclude hearsay evidence to the opponent of the evidence—flipping the ordinary rule applicable to the admission of hearsay. In opposition, the California Judges Association states that “[t]ypically, the proponent has the evidence, so it is his/her burden to prove reliability. This bill shifts the burden to the person without the knowledge to prove that a document is not reliable.” (Emphasis added.) By imposing the burden on the party that opposes the hearsay, the bill could result in the admission of more case-specific hearsay than the pre-Sanchez rules.

With regard to business records, existing law already provides a hearsay exception applicable to business records kept in the ordinary course of business. (Evid. Code § 1271.) That exception provides evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:

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

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

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

(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

This bill would effectively propose an exception to this exception by admitting business records that only meet (a), bypassing the foundational elements of reliability in the existing section 1271. Thus, such business records would be presumptively admissible regardless of when and how they were made. The sponsor of the bill, ACFLS, writes that “[w]ithout SB 435, financial institutions must send a custodian of records to testify to the authenticity of the records, and voluminous amounts of financial records must be admitted into evidence…” However, this is frequently not the case; parties often stipulate to the admission of evidence to expedite the process. Moreover, although expediting the admission of certain records can benefit families and courts, the casual admission of records can be harmful in certain situations. For instance, these records may be the business records developed by the spouse who controls the family business and has the ability to manipulate the records to distort the value of the business. This would shield assets from the other spouse, who would then have the burden of trying to persuade the court that the records should not be admitted, even if that person had no access to those records. Consequently, the disadvantages that occur when parties have an asymmetry in financial resources and information could be magnified by this bill. These disadvantages could be further exacerbated if the party introducing the records is represented by counsel while the other party, like the vast majority of family law litigants, is self-represented.

With regard to hearsay statements relied upon by an expert in forming the expert’s opinion, under this bill, as long as the expert routinely relies on such statements and determines them to be trustworthy, the expert may offer their opinion to the court about the character and value of property. Such experts may include forensic accountants who are hired by one party to trace separate property that has been comingled with community property—a tedious task that requires a nuanced analysis of an extensive paper trail. The sponsor argues that forcing such experts to introduce into evidence the case-specific hearsay they relied on in forming their opinions needlessly slows down the process. However, the California Judges Association, in opposition, notes as follows:

The experts that the bill supports are, for the most part, not court employees, but are private experts usually employed by the party who calls them to the stand. As a result, the bill allows a privately paid expert to opine that documents that support the person that is paying them are reliable.

Thus, although this provision could expedite these proceedings to a degree, it poses a risk that the proceedings become contaminated with biased case-specific hearsay that is difficult to challenge. For instance, if the expert routinely relies on statements from lawyers about the character of certain property, the expert, under this bill, could rely on an out-of-court statement from the party’s lawyer that certain property is separate property, shielding it from the community assets. The other spouse, who may lack resources and legal representation, would have the burden of persuading the court to exclude this information. Even then, under this bill, if there remains a proper basis for the expert’s opinion, the expert may nonetheless state the expert’s opinion after excluding from consideration the inadmissible hearsay.

1. Potentially enables unreliable case-specific hearsay evidence to be used in child custody reports that help determine parental rights

Existing law provides that in any contested proceeding involving child custody or visitation rights, the court may appoint a child custody evaluator to conduct a child custody evaluation in cases where the court determines it is in the best interests of the child, in accordance with standards adopted by the Judicial Council. If directed by the court, the court-appointed child custody evaluator must file a written confidential report on their evaluation. If the report is filed 10 days before the custody hearing and complies with these standards, the report may be considered by the court. (Fam. Code § 3111(a).) Existing law provides that this report may be received in evidence on stipulation of all interested parties, in which case its contents are considered competent evidence as to all matters contained in the report. (Fam. Code § 3111(c).)

This bill would provide that a report based on a full or partial court-ordered evaluation, CCRC recommendation, investigation, or assessment may be received into evidence if it complies with standards to be adopted by the Judicial Council and is provided to the court and to all parties or their counsel at least 10 days before the custody hearing.

A party that wishes to challenge case-specific hearsay in the report cannot have it excluded but may introduce other admissible evidence and cross-examine the report preparer, witnesses whose hearsay was relied upon by the preparer in forming an opinion, hearsay declarants whose statements were significantly relied upon by the preparer, and other professionals who interact with families and children, including a teacher, doctor, optometrist, or mental health professional. Hearsay statements contained in reports, including medical and dental records, school notices, report cards, and progress reports would also be admitted automatically and could only be challenged with other contrary evidence.

As noted above, under standard rules of evidence, a party that attempts to introduce hearsay evidence typically has the burden of showing its reliability. This bill would make these reports automatically admissible if they are filed on a timely basis. Thus, regardless of how contaminated with unreliable case-specific hearsay a particular report may be, a person opposing it cannot have the report excluded from evidence if it is filed on time. Rather, the opponent would be forced to cross-examine every person interviewed in the report whose statements may have been inaccurate, misleading, or taken out of context. This goes further than the pre-Sanchez rules, which gave judges discretion to consider hearsay evidence introduced by experts on a case-by-case basis. The Judicial Council, writing in opposition, states that “SB 435 could be seen as an end-run around evidentiary standards and a method for removing a judicial officer’s discretion to enforce hearsay provisions and require the party and the preparer of the report to prove up the information contained within the report for the benefit of the child and the parties.” Further, by potentially necessitating the cross examination of numerous witnesses whose case-specific hearsay is included in these reports, the bill could impose substantial costs on litigants and cause unnecessary delays—the opposite result of the author’s goal of “avoid[ing] needlessly complicating the process of proof, generating delay, [and] increasing costs …”

Turning to the content of the reports, Rules 5.220 and 5.215(b)(4) of the California Rules of Court authorize family courts in some counties to obtain an interview with a child, a “partial evaluation” from court staff, or a “full evaluation” including psychological tests from a credentialed expert. (Cal. R. Ct. 5.220; Cal. R. Ct. 5.215; see Civ. Proc. Code. § 2032.020; Fam. Code §§ 3110- 3118; Evid. Code §§ 730, 733.) Thus, these reports may be prepared by court staff or outside experts who may lack the training of court staff. While these reports serve a valuable function in helping to solve child custody disputes, several authorities have indicated that these reports may contain unreliable evidence. Describing these reports, the California Judges Association, in opposition, notes that this bill “allows in statements, as admissible in records, that the party never created or reviewed, and consequently could include biased or simply wrong information.” Moreover, scholarly articles have questioned the reliability of the out-of-court statements contained in the reports. One such article articulates these concerns as follows:

Neither the interviewers, the evaluators, nor the courts themselves make any attempt to measure outcomes, but there is little reason to believe that these resources produce benefits for at-risk children in difficult cases. Evaluators have no duties to or relationship with the child; rarely address the child's health, education, or welfare in any meaningful way; have no legal expertise, and cannot research the relevant issues in a case or file pleadings or appear for the child in court; and cannot monitor compliance with court orders because they generally are relieved after every hearing. Partial evaluators and interviewers have no means to resolve difficult factual disputes about important issues like domestic violence, substance abuse, parental incapacity, or a child’s special needs, and have no means to discover placement options when awarding custody to either parent would be detrimental to the child.^[4]

The article goes on to summarize research that urges caution in relying on such reports, stating that the reports “enable family and probate courts to ignore the rules of evidence that protect litigants in other courts, and encourage them to rely on insufficient data, including otherwise inadmissible hearsay and tests whose validity and reliability cannot be established.”^[5] The article states that Sanchez “put a stop to some of [the] legal legerdemain” of the pre-Sanchez rules and that “[t]here is no good reason to apply different rules in family or probate courts.”^[6]

Although this bill would require the Judicial Council to adopt standards for the use of hearsay in these reports, there is little reason to believe that a mere change in the rules of court can overcome these fundamentally problematic issues. In fact, the Judicial Council, writing in opposition, states that “SB 435 is a circular attempt to allow hearsay from reports of CCRCs by requiring the Judicial Council to adopt standards that would declare a presumption in favor of admitting the hearsay contained in such reports if the reports are consistent with the rules promulgated by the Judicial Council.”

Another law review article notes as follows:

The reliability of out-of-court statements upon which an expert relies is an issue that arises recurrently in custody evaluations. Custody evaluators frequently rely upon statements made by third-party collateral sources, such as teachers, nannies, friends, and relatives of the parties. Many times none of these third parties testify in court subject to cross-examination. While it is customary for evaluators to rely upon such information for their truth, evaluators rarely if ever have sufficient information or knowledge to know whether it is reliable.^[7]

5. Expediency at the expense of reliability

The article mentioned above compares the “professional hearsay predicate”—a rule, similar to the rules this bill would introduce, that provides that an expert may base an opinion on an out-of-court statement that is of a kind that is customarily relied on and the expert thinks the statement is trustworthy—and the traditional distinction between an expert’s testimony regarding background information and case-specific facts that was restored in the Sanchez case. The article praises the “wisdom” of Sanchez and argues for a return to common law safeguards in family law proceedings rather than the professional reliability predicate. “Given that there will rarely, if ever, be independent, extrinsic evidence of the reliability of collateral informants, they must be brought in for cross-examination so that the [custody] evaluator’s opinion will rest on competent evidence.”^[8] The article concludes as follows:

As for policy-makers, it is time for them to grapple with the conundrum that the professional hearsay predicate has produced, one that forces an ultimate choice of either allowing the expert to act as a conduit of contaminating hearsay or denying the fact-finder the full knowledge of the expert’s premises. Given the inadequacy of the various approaches to reconciling the professional reliability test with the fundamental rights of litigants to a fair process in accordance with the first principles of the common law trial system, intellectual honesty would demand acknowledgement that the professional reliability predicate does severe violence to the epistemic structure of common law trials and to the evidentiary structure of expert testimony. They would be well-advised to seriously consider restoring the common law safeguards of insistence that all expert predicates are drawn from facts in evidence. This can be accomplished by requiring that all third-party sources testify subject to the rigors of cross-examination.

The principal justification for the professional hearsay predicate is the expediency it brings to the trial process in dispensing with the need to call the witnesses who are the source of the information. The price extracted for that convenience is the destruction of evidentiary integrity, the erosion of the trial process, and the immolation of due process on the altar of expediency. That is a high price indeed.^[9]

Finally, although congestion in family courts impacts families, and Sanchez may contribute to this congestion, the California Supreme Court has stated in this regard as follows:

In light of the volume of cases faced by trial courts, we understand their efforts to streamline family law procedures. But family law litigants should not be subjected to second-class status or deprived of access to justice. Litigants with other civil claims are entitled to resolve their disputes in the usual adversary trial proceeding governed by the rules of evidence established by statute. It is at least as important that courts employ fair proceedings when the stakes involve a judgment providing for custody in the best interest of a child and governing a parent’s future involvement in his or her child’s life, dividing all of a family’s assets, or determining levels of spousal and child support. The same judicial resources and safeguards should be committed to a family law trial as are committed to other civil proceedings.

(Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1368; emphasis added.)

In view of the above, the Committee may wish to consider whether the benefit of increased expediency from the relaxation of hearsay rules under this bill’s provisions clearly outweighs the risk of allowing these proceedings to be contaminated by unreliable case-specific hearsay.

6. Author’s statement

According to the author:

The time devoted to the admission of evidence relied upon by expert witnesses has only increased costs to parties in a case, including institutions, such as banks, school districts, employers, and third parties. As a result of these changes, the Sanchez objection is now being used to weaponize the rules of evidence by hitting the opposing party where it hurts the most, their checkbook. Simply put, SB 435 will restore the old standard of proof that was in place before the Sanchez ruling for child custody evaluations and financial records, making it easier for families to navigate the already incredibly difficult time of divorce and separation.

SUPPORT

California Association of Certified Family Law Specialists (sponsor)

Change for Justice

OPPOSITION

California Judges Association

Judicial Council

RELATED LEGISLATION

Pending: None known

Prior:

SB 1276 (Moorlach, 2018). See Comment 2.

AB 1736 (Cunningham, Ch. 64, Stats. 2018) expanded an exception to the hearsay rule for prior inconsistent statements by including conditional examinations in the types of proceedings covered and including an audio tape of the prior statement.

AB 1958 (Maienschein, 2014) would have prohibited a criminal defendant from introducing a hearsay statement or other conduct that is inconsistent with another hearsay statement by the defendant that has been introduced as evidence at trial by the prosecution. This bill died in the Assembly Public Safety Committee.

1. Marissa N. Hamilton, Comment: The End of Smuggling Hearsay: How People v. Sanchez Redefined the Scope of Expert Basis Testimony in California and Beyond (2018) 21 Chap. L. Rev. 509, 511. ↑

2. Robert Jacobs & Christina Riehl, Doing More for Children with Less: Multidisciplinary Representation of Poor Children in Family Court and Probate Court (2018) 50 Loy. L.A. L. Rev. 1, 15, fns. 51, 52 ↑

3. Timothy M. Tippins & Lauren K. De Luca, The Custody Evaluator Meets Hearsay: A Star-Crossed Romance (2018) 30 J. Am. Acad. Matrimonial Law 521, 535-536. ↑

4. Robert Jacobs & Christina Riehl, Doing More for Children with Less: Multidisciplinary Representation of Poor Children in Family Court and Probate Court (2018) 50 Loy. L.A. L. Rev. 1, 15, fn. 51. ↑

5. Id. at fn. 52. ↑

6. Ibid. ↑

7. Timothy M. Tippins & Lauren K. De Luca, The Custody Evaluator Meets Hearsay: A Star-Crossed Romance (2018) 30 J. Am. Acad. Matrimonial Law 521, 535-536. ↑

8. Id. at 537. ↑

9. Id. at 557-558; emphasis added. ↑