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March 2020

Daily Journal Publishes Partner Don Willenburg’s Article, "State Supreme Court ‘Clarifies’ Expert Witnesses and Hearsay"

Oakland partner Don Willenburg’s article “State Supreme Court ‘Clarifies’ Expert Witnesses and Hearsay” was published in the March 3 Super Tuesday edition of the Daily Journal, California’s largest legal publication. The article addresses California’s distinction between background knowledge derived from hearsay and “case-specific” hearsay. Willenburg, chair of the firm’s appellate practice group, earlier published on the decision that first established that distinction. People v. Sanchez, Hearsay, and Expert Testimony, California Litigation (Spring 2018).

The expert can rely on both, but can only relate to the jury background hearsay. After Sanchez, an expert can no longer “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.”  The expert can rely on such statements, but cannot relate them to the jury (i.e., “I read in the police report that Jimmy was 15 feet away, so I concluded that...”). The rule is different for “background information” from hearsay. “[E]xperts 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.”

Willenburg’s article discussed People v. Veamatahau, in which a criminalist testified that he relied on an Internet database identifying markings on pills that the FDA requires on controlled substances. The defense argued that this was case-specific, but the California Supreme Court disagreed. “[I]nformation from the database is not case specific but is the kind of background information experts have traditionally been able to rely on and relate to the jury.” Just as if it was a paper pharmacopeia or encyclopedia.

The Daily Journal website can be found here.


Don Willenburg

Commercial Litigation