The Right to Confrontation Lives

In People v. Sanchez, S216681, the California Supreme Court today built on recent precedent from the U.S. Supreme Court and a tide of judicial and scholarly criticism to find case-specific “statements” related by a prosecution “gang expert” not only constituted inadmissible hearsay under California law, but also were “testimonial” so should have been excluded under Crawford v. Washington.  I generally steer away from substantive legal discussions in this space but, since this was my case, I will diverge from that precedent a bit.

Sanchez considered the widespread use of “gang expert” testimony in criminal prosecutions to prove an offense was “gang related,” so as to increase the sentence.  Generally, an officer or detective with some familiarity with a gang will testify as to the gang’s history, activities, common symbols, etc. and then ultimately opine the offense was gang-related.  The problem comes from the conflict between the old adage that an expert can rely on hearsay and the defendant’s 6th Amendment right to confront and cross-examine the witnesses against him because, often, the “gang expert” will rifle through the files at the police department and find various documents and records which were created by other officers, but who are not called to testify.  Hence, the defendant cannot cross-examine the “real” witness against him.

Justice Corrigan’s unanimous opinion explains why an “expert” cannot present “case specific” facts concerning which the expert has no personal knowledge, so those facts must be presented by witnesses who do have personal knowledge and can be cross-examined.  Stylistically, the opinion is well-written, including various common-sense examples to illustrate its points.  It is recommended reading for practitioners, law students struggling through evidence class, and the public.  It also demonstrates, as did the late Justice Scalia’s opinions in this area, that the 6th Amendment is a unique corner of jurisprudence where justices labeled as “conservative,” “moderate” or “liberal” can find common ground.

read the opinion:

HOW to Succeed With a Writ Petition

In an unpublished case filed yesterday, H.O.W. Hall, Inc. v. Superior Court, G052123, 4/3 granted H.O.W.’s petition for writ of mandate after an unsuccessful summary judgment motion, issuing the writ directing the trial court to grant the summary judgment and enter judgment in H.O.W.’s favor.  It is generally believed writ petitions after unsuccessful summary judgment motions are a waste of time, but that is not the case.

Why, and how did H.O.W. succeed, you ask?  The underlying allegations by  Roe were that a man who had befriended her at an AA meeting held on H.O.W.’s premises had sexually assaulted her off H.O.W.’s premises at a trailer the man owned.  She alleged H.O.W. should have known the assailant used AA functions to find female victims but had failed to warn or protect the women. The trial court declined to strike the causes of action for negligent failure to warn and negligent failure to take protective measures as H.O.W. was “‘landowner supplying property for meetings attended by vulnerable women [but] failed to negate the existence of a legal duty.'”

The Court of Appeal disagreed, noting it would be unjust to impose a duty to investigate off-premises issues, and there was no “special relationship of custody or control.”  H.O.W. did not run the AA meetings;  it merely leased space to AA, and the proposed burden placed on AA and H.O.W.  would have been great.  Moreover, if H.O.W. had warned the assailant was a sexual predator based only a history of claimed prior unwanted advances, it could have been sued for defamation.  The court concluded with an emphasis on the importance of AA and similar programs in helping people overcome addictions, noting generic warnings about possible sexual predators may discourage participation in similar groups, as well as raising their insurance costs.

So, how did H.O.W. win a writ petition and convince the Court of Appeal to rule on the merits rather than merely allowing the matter to proceed to trial?  It had a meritorious legal position AND a strong public policy rationale which illustrated how this case could affect persons far beyond the individual litigants.  So always keep the broader picture in mind and try and convince the court not only you are right on the law, but also your cause is just.  You, too, might be able to avoid a summary denial.