The Sanchez Waiver in California Family Law: Expert Testimony, Hearsay, and Evidentiary Strategy
Quick Answer: A Sanchez waiver is an agreement by both parties that an expert witness may testify to otherwise inadmissible hearsay in explaining their opinion, following the California Supreme Court's 2016 decision in People v. Sanchez. Without a waiver, experts can state their overall opinions but cannot relay case-specific hearsay details unless the underlying materials are independently admitted into evidence or fall within a recognized hearsay exception. The decision to agree to a Sanchez waiver has significant strategic implications and should not be made without experienced legal counsel.
If expert witness testimony or evidentiary issues are affecting your California family law case, contact The Geller Firm at (415) 840-0570 for a confidential consultation.
What Is the Sanchez Ruling and Why Does It Matter in Family Law?
People v. Sanchez (2016) 63 Cal.4th 665 is a California Supreme Court decision that fundamentally changed how expert witness testimony is treated when experts rely on hearsay to support their opinions.
Before Sanchez, California courts followed a practice that allowed expert witnesses to relate hearsay statements and information from third-party sources, such as police reports, medical records, and prior statements, on the theory that they were doing so not to prove the truth of those statements but simply to explain the basis for their expert opinion. This practice created a practical end-run around the hearsay rule: statements that would have been inadmissible if offered directly could effectively be introduced into evidence through the mouth of an expert.
The Sanchez court rejected this approach. The court drew a critical distinction between two categories of hearsay an expert might reference:
General background knowledge. An expert may rely on and testify about general principles, research, literature, and professional background knowledge that informs their area of expertise. This type of information does not violate the hearsay rule because it is not case-specific.
Case-specific hearsay. An expert may not relay statements that are specific to the particular events, individuals, or facts at issue in the case unless those statements are independently admitted into evidence through proper evidentiary channels or fall within a recognized hearsay exception.
When an expert attempts to relay case-specific hearsay without independent admission or an applicable exception, that testimony is inadmissible under the hearsay rule. In criminal cases, it also implicates the defendant's Sixth Amendment right of confrontation.
Although Sanchez was decided in the criminal context, California family courts routinely apply its evidentiary principles because family law proceedings are governed by the California Evidence Code, which applies the same hearsay rules in civil proceedings.
What Is Hearsay and Why Does It Matter in Family Law Cases?
Hearsay is an out-of-court statement offered for the truth of the matter it asserts. California Evidence Code § 1200 defines hearsay and provides that it is generally inadmissible unless a specific exception applies.
In family law proceedings, hearsay arises constantly because the disputes at issue frequently turn on what happened in private settings, what children or parents said to third parties, and what professionals learned from documents and interviews rather than firsthand observation. Common sources of hearsay in family law include:
Statements a child made to a therapist, evaluator, or teacher about events at home
Information in police reports, CPS reports, school records, or medical records referenced by an expert
Accounts third parties gave to a custody evaluator or domestic violence advocate
Financial information an expert received from documents or records that have not been formally admitted
Statements a parent made to a therapist or evaluator about the other parent
Under the pre-Sanchez practice, these statements often made their way into evidence through expert testimony. After Sanchez, that pathway is narrowed: the expert can still hold and express opinions informed by this information, but cannot relate the specific hearsay content to the court unless one of three things is true:
The underlying materials have been independently admitted into evidence
A recognized hearsay exception applies
Both parties have agreed to a Sanchez waiver
What Is a Sanchez Waiver?
A Sanchez waiver is a stipulation between the parties agreeing that an expert witness may testify to otherwise inadmissible case-specific hearsay for the purpose of explaining the basis for their opinions. By entering into this stipulation, both parties waive their right to object to the expert's testimony on Sanchez grounds.
The waiver is typically reached before or at the start of a hearing at which expert testimony will be presented. It is often discussed in the context of a child custody evaluation, a forensic financial expert, a psychological evaluation, or a domestic violence expert, and it determines how broadly the expert can speak about the underlying materials that informed their opinion.
With a Sanchez waiver in place, the expert can testify more comprehensively. For example, a custody evaluator can discuss specific statements the children made during their interviews, describe what the police reports or CPS records said, and relay information from school records or medical reports, all in the course of explaining their findings and recommendations.
Without a Sanchez waiver, the evaluator can still present their opinion and its general basis but cannot relay the specific hearsay statements and documents that informed it unless those materials are separately admitted or fall within an exception.
How Does Sanchez Apply in Specific Family Law Contexts?
Child Custody Evaluations Under Evidence Code § 730
Court-appointed custody evaluators are among the most frequent expert witnesses in California family law. Their reports, prepared under Evidence Code § 730, routinely incorporate information from interviews with parents and children, school records, medical records, prior court orders, police reports, and CPS records.
Without a Sanchez waiver, the evaluator at a hearing can:
State their custody and visitation recommendations
Explain the methodology they used
Describe general factors they considered
Without a waiver, the evaluator cannot:
Quote specific statements children made during interviews
Describe what the police reports or CPS records specifically said
Relay what teachers or doctors reported unless those underlying records are admitted
With a Sanchez waiver, all of the above becomes permissible. The waiver effectively allows the full evidentiary picture the evaluator has assembled to be presented to the court.
Domestic Violence Restraining Order Proceedings
Domestic violence cases frequently involve expert testimony from advocates, therapists, or forensic professionals who have reviewed police reports, medical records, and communications from the parties. The Sanchez rules apply to these hearings as well.
A domestic violence expert who cannot relay case-specific hearsay without a waiver may be limited in their ability to explain why they reached their conclusions about the dynamics of the relationship. A Sanchez waiver in this context can be powerful for the petitioner seeking a restraining order, as it allows the expert to present a more complete narrative. However, it can also allow the respondent's expert to present counter-narratives based on hearsay that might otherwise have been excluded.
Financial Expert Testimony in Divorce
Forensic accountants and business valuators in divorce proceedings routinely rely on financial records, tax returns, bank statements, and other documents in forming their opinions. If those underlying documents are not formally admitted into evidence, the expert's testimony about specific figures, transactions, or account details may be limited by Sanchez.
A Sanchez waiver allows the financial expert to testify comprehensively about the documents they relied upon without requiring each document to be separately admitted and authenticated, which can streamline lengthy financial hearings significantly.
Psychological Evaluations
Psychologists who conduct parental fitness evaluations, risk assessments, or psychological testing routinely rely on clinical interviews, test scores, prior treatment records, and third-party statements. Under Sanchez, their ability to relay the specific content of these sources depends on whether the underlying materials have been admitted or a waiver has been agreed upon.
Strategic Considerations Before Agreeing to a Sanchez Waiver
A Sanchez waiver should never be agreed to reflexively. Whether it benefits or harms your position depends on the specific facts of your case, what information the expert has assembled, and how that information is likely to be used.
When a Sanchez Waiver May Help You
The expert's report and underlying materials strongly support your position, and allowing the expert to relay the specifics will reinforce your case
The other side's expert is unlikely to benefit from a waiver to the same degree
The evidentiary record without a waiver would be fragmented and difficult for the court to follow, and a waiver would allow a more coherent presentation
Formally admitting all underlying documents would be time-consuming and contested, and a waiver provides a more efficient alternative
When a Sanchez Waiver May Hurt You
The underlying materials contain statements or information that are unfavorable to your position and would not otherwise be admissible
The other side's expert will use the waiver to relay hearsay that is damaging to your case
The reliability of the underlying materials is questionable, and excluding them protects you from unverified information influencing the court
Specific hearsay statements could be inflammatory or prejudicial in ways that outweigh their probative value
Questions to Ask Before Agreeing
Your attorney should evaluate the following before stipulating to a Sanchez waiver:
What specific materials will the expert be able to reference under the waiver?
Are those materials reliable and consistent with your position?
What will the other side's expert be able to say that they could not say without the waiver?
Can the favorable underlying information be introduced through independent admission rather than through the waiver?
Is the other side proposing the waiver because the unrestricted expert testimony benefits them more than you?
The Practical Mechanics of a Sanchez Waiver
In practice, Sanchez waivers are typically addressed in one of the following ways:
Pre-hearing stipulation. Before the hearing, the parties and their attorneys agree in writing or on the record that the Sanchez objection is waived for the upcoming expert testimony.
On-the-record agreement at the hearing. At the start of the hearing, the judge may ask whether the parties are stipulating to a Sanchez waiver for the expert testimony about to be presented.
Partial waiver. The parties may agree to a waiver limited to specific materials or specific aspects of the expert's testimony, rather than a blanket waiver for all hearsay.
Once a waiver is entered, it applies to the agreed-upon scope of the testimony. A party who agrees to a Sanchez waiver cannot subsequently object during the expert's testimony on the ground that the expert is relying on hearsay that falls within the scope of the waiver.
Frequently Asked Questions
Can a Sanchez objection be raised mid-testimony if no waiver was agreed to? Yes. If the parties have not stipulated to a Sanchez waiver and an expert begins relaying case-specific hearsay during testimony, the opposing party may object on Sanchez grounds. The court will then rule on whether the specific testimony is permissible under the applicable exceptions or must be excluded.
Does Sanchez apply to all hearings in family law, including temporary orders hearings? The Evidence Code applies in family law proceedings, but some courts have more relaxed evidentiary practices at temporary orders hearings given the expedited nature of those proceedings. The extent to which Sanchez is strictly enforced at short-cause hearings versus long-cause trial may vary by judicial officer and county. Your attorney can advise on the practices in your specific jurisdiction.
Can the court admit the underlying hearsay documents independently to avoid the Sanchez issue? Yes. If the underlying police reports, CPS records, school records, or other documents are independently admitted into evidence through proper authentication and any applicable exception to the hearsay rule, the Sanchez issue is resolved without needing a waiver. The expert can then testify about those admitted documents freely.
What if only one party wants a Sanchez waiver? A Sanchez waiver requires the agreement of both parties. One party cannot unilaterally waive the other's right to object. If one party wants the waiver and the other refuses, the expert's testimony is limited by the Sanchez rules, and the admissibility of specific hearsay content must be addressed document by document or statement by statement.
Does Sanchez apply to therapist testimony about what a child said? Statements children make to therapists raise both Sanchez and separate privilege issues. In family law, a child's communications with their therapist may be subject to the psychotherapist-patient privilege, child abuse reporting privilege, and other protections, in addition to the hearsay rules. The admissibility of such statements is a complex, multi-layered analysis that requires careful legal guidance.
Speak With a California Family Law Attorney
Evidentiary issues involving expert testimony, hearsay, and Sanchez waivers can significantly affect the outcome of custody, support, and domestic violence proceedings. Agreeing to or opposing a Sanchez waiver without understanding its strategic implications can expose your case to unreliable evidence or unnecessarily limit the court's access to information that supports your position. The Geller Firm represents clients across California in all aspects of family law litigation, including complex evidentiary issues, custody evaluations, and hearings involving expert testimony.
We offer confidential virtual and in-person consultations from our Walnut Creek office.
Call (415) 840-0570 or contact us online to schedule your consultation.