The Sanchez hearsay rule, and the “compilation” exception. People v. Mooring, 9/27/17

Posted by on October 24, 2017 in #DUIdata | 0 comments

The Sanchez hearsay rule, and the “compilation” exception. People v. Mooring, 9/27/17

The Sanchez hearsay rule, and the “compilation” exception. People v. Mooring, 9/27/17

This rule of hearsay in California continues to exercise its legs from our California Supreme Court decision People v. Sanchez. The final sha-bang with Sanchez is whether an expect can opine on a single, fact-specific hearsay (out of court statement) when testifying. And their holding was that single, fact-specific opinions like this are hearsay and not admissible.

Well, what if the expert is making this pin-point hearsay statement…but that statement is based off a compilation of information? That’s exactly what we have in this 9/27/17 decision People v. Mooring*.

The quick facts in Mooring:

Basically, People’s expert opined drugs were certain drugs from the Ident-A-Drug Web site, without actually testing the drugs through confirmation testing. Here are the exact facts copied from the opinion:

“The crime lab uses a reference—the Ident-A-Drug Web site—to presumptively identify pharmaceutical pills**. The Web site contains information about, and images of, pharmaceutical pills derived from the FDA and pharmaceutical pill manufacturers. The crime lab pays a subscription fee to access Ident-A-Drug, and the Web site is login-controlled.”

To presumptively identify a prescription pill, the crime lab compares the pill’s “individual characteristics”—its color, shape, and markings—to images on Ident-A-Drug. Meldrum [the People’s expert] explained: “I type the markings on the pill into the website and it gives me either one match or a list of possible matches that the pill may be. And based on the color and the shape and the imprints on the pill, I make a determination as to whether or not to report that out as a presumptive identification.” This method is generally accepted in the scientific community, and has been reviewed by the crime lab’s accrediting board. Meldrum has presumptively identified prescription pills using Ident-A-Drug over 2,000 times.”

“Meldrum compared the markings, imprints, coloring, and shapes of the prescription pills seized from the residence to the information on Ident-A-Drug. Meldrum presumptively identified the pills as” the drugs the People charged Defendant with.

So, is all this hearsay?

Well, yes. The testimony and opinions from Ident-A-Drug are hearsay.

But is it inadmissible? The answer is no, as the Court holds here. Because it’s hearsay based off a compilation per California Evidence Code 1340: a compilation that is “generally used and relied upon as accurate in the course of a business.”

“Other examples of ‘published compilations’ include a spray paint can label including hazardous substances; survey results measuring magazine advertising; a traffic safety database maintained by the National Highway Traffic Safety Administration; and mortality tables showing life expectancy.” I took out the case cites for each of those examples, FYI.

The Court here holds:

  1. Ident-A-Drug is a compilation;
  2. The compilation is “published” on the Internet;
  3. The compilation is “generally used” in the crime lab’s course of business; and
  4. The Ident-A-Drug Web site is generally relied upon as accurate by the crime lab in conducting its business.

Defendant also argues his right of Confrontation was violated, and loses on that too***.

*California Court of Appeal, 1st Appellate Dist., 5th Div. 2017

**In presumptive testing, you don’t actually test the item. You just do some research to give an opinion that a thing is probably identified as something. What’s crazy about California law with crimes about possession illegal drugs, is the law doesn’t require that the People actually test the substance through confirmation testing. To confirm the thing is what you presumed it was. What?! I know. But this is the law: “The essential elements of possession of a controlled substance “`may be established circumstantially.'” (See People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) Chemical test results are routinely introduced at trial to establish the illegal nature of a controlled substance, but they are not required. “[T]he nature of a substance, like any other fact in a criminal case, may be proved by circumstantial evidence.”

***”Here the challenged hearsay is not testimonial. As described above, Ident-A-Drug contains generic data about pharmaceutical pills, based on information provided from pharmaceutical manufacturers and the FDA. The primary purpose of collecting and compiling this content on the Ident-A-Drug Web site was not to gather or preserve evidence for a criminal prosecution.”

***

About me, San Diego DUI lawyer Eric Ganci:

I am an owner and DUI lawyer in San Diego with my own firm Ganci, Esq., A Professional Corporation.  I am trained in blood testing for drugs and alcohol, trained on breath testing, and trained to train police on field sobriety tests.  I have authored Thomson West Publications regarding DUI science and law, and am a founding member of the DUI Defense Lawyers Association, a national group.  

I am recognized, after completing the required coursework and passing the certification exam, as a Lawyer-Scientist by the American Chemical Society, Chemistry and the Law division.  I have been fortunate to be awarded many other awards, and  you can see my full bio here.

I received my JD from Thomas Jefferson School of Law, my BA in Music Education from Northern Illinois University, and graduated from the Trial Lawyers College in 2013.

I have offices in San Diego and Vista (North County San Diego), and I represent persons arrested for DUI in all counties in San Diego.

Also, per California Rules of Professional Conduct, although I try to simply make them informative and entertaining, some persons may take it as a legal solicitation.  It’s not, and it does not in any way form any kind of attorney-client relationship with whoever reads it.

Eric Ganci, Esq., DUI trial lawyer

GANCI, ESQ., APC

Cell: 760-216-4941

Email: Eric@GanciEsq.com

Fax: 888-241-5887

Downtown San Diego office:

350 10th Ave, Ste 1000

San Diego CA 92101

North County San Diego office:

950 Vista Village Dr

Vista, CA 92084

Leave a Comment

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