The conflict

Until early 2020, there was a conflict in the lower courts: were pill descriptions from online databases admissible background hearsay or inadmissible case-specific hearsay? In People v. Veamatahau (2020) 9 Cal.5th 16, the Supreme Court held that such evidence was admissible background information.

The resolution

In Sanchez, the court had previously held:

That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang. People v. Sanchez (2016) 63 Cal.4th 665, 677.

In Veamatahau, the court reasoned,

The example may be readily analogized to the case at hand. Just as information that diamonds are a symbol of a certain gang is background knowledge, information that the designation “GG32—or 249” engraved on pharmaceutical tablets indicates that the tablets contain alprazolam is “background information about which a[n] … expert could testify.” Veamatahau, 9 Cal.5th, at p. 28, citing Sanchez.

The Supremes acknowledged that drug identification information might also fall under the published compilation hearsay exception under Evidence Code section 1340, as some lower courts had held. (Because the Court found the database was background information, it did not reach the 1340 question.) But the court observed that admissibility under one theory does not preclude admissibility under others.

Thus, drug identification information from an internet database on which experts reasonably relied was admissible background hearsay, regardless of its additional admissibility as a published compilation.

My mental model

I analyze case-specific v. background issues like this: if I change the players or the events in this case, does that change the hearsay information? For instance, the gang’s symbol is a diamond tattoo, whether or not this defendant has a diamond tattoo. Similarly, pills with “GG32-or 249” contain alprazolam, whether or not this pill has such a mark.

The line of lower court cases affected by Veamatahau is below.

  • People v. Stamps (2016) 3 Cal.App.5th 988. The Supreme Court’s Veamatahau decision disapproved this decision. This was the first published opinion about online drug-identification databases. Stamps held that website information about pill markings was case-specific hearsay. The court reasoned that “the chemical composition of the pills” must be case-specific. (The Attorney General did not argue the information was a published compilation until the petition for rehearing, so the court did not analyze whether Evidence Code section 1340 or another hearsay exception applied.)
  • People v. Mooring (2017) 15 Cal.App.5th 928. Held the Ident-A-Drug website was a published compilation under Evidence Code section 1340. Case did not examine whether the website was case-specific hearsay or background information.
  • People v. Espinoza (2018) 23 Cal.App.5th 317. The Second District Court of Appeals agreed with Mooring that the Ident-A-Drug website is a published compilation under Evidence Code section 1340. Like the Mooring court, the Espinoza court did not examine the case-specific v. background issue.
  • People v. Veamatahau (2018) 24 Cal.App.5th 68. In its third published decision on drug identification websites, the First District holds that information about pill markings (from the FDA in this case) was background information, not case-specific hearsay. The court declined to examine whether the website was a published compilation.