BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2013-2014 Regular Session B 3 7 8 SB 378 (Block) As Amended April 2, 2013 Hearing date: April 9, 2013 Evidence Code MK:dl EVIDENCE: ADMISSIBILITY: ELECTRONIC DIGITIZED DOCUMENTS HISTORY Source: San Diego District Attorney Bonnie Dumanis Prior Legislation: None Support: California District Attorneys Association Opposition:None known KEY ISSUE SHOULD ELECTRONICALLY DIGITIZED DOCUMENTS BE ADMISSIBLE UNDER EVIDENCE CODE PROVISIONS MAKING SPECIFIED DOCUMENTS OR RECORDS ADMISSIBLE? PURPOSE (More) 378 (Block) Page 2 The purpose of this bill is to authorize the use of electronically digitized documents as evidence in situations where documents or records can be admitted. Existing law in the "Electronic Discovery Act" establishes procedures for parties to discover electronically stored information from opposing parties for use as evidence in state court actions. (Code of Civil Procedure §§ 2031.010 et seq.) Existing law provides that judicial notice may be taken of the specified matters including official acts of the legislative, executive and judicial departments of the United States and any state of the United States and records of any court of this state, any other state or the United States. (Evidence Code § 452 (c), (d).) Existing law provides that the official acts and records in (c) and (d) of Section 452 include any computer generated official court records which relate to criminal convictions, when the record is certified by a clerk of the superior court pursuant to the Government Code at the time of computer entry. (Penal Code § 452.5(a).) This bill provides that "electronically digitized copy" means a copy that is made by scanning, photographing, or otherwise exactly reproducing a document, is stored or maintained in a digitized format, and bears an electronic signature or watermark unique to the entity responsible for certifying the document. Existing law provides that an official certified record of conviction is admissible to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition, or event recorded by the record. (Evidence Code § 452.5 (b).) This bill adds that an electronically digitized copy of the (More) 378 (Block) Page 3 record is also admissible. . RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation relating to conditions of confinement. On May 23, 2011, the United States Supreme Court ordered California to reduce its prison population to 137.5 percent of design capacity within two years from the date of its ruling, subject to the right of the state to seek modifications in appropriate circumstances. Beginning in early 2007, Senate leadership initiated a policy to hold legislative proposals which could further aggravate the prison overcrowding crisis through new or expanded felony prosecutions. Under the resulting policy known as "ROCA" (which stands for "Receivership/ Overcrowding Crisis Aggravation"), the Committee held measures which created a new felony, expanded the scope or penalty of an existing felony, or otherwise increased the application of a felony in a manner which could exacerbate the prison overcrowding crisis. Under these principles, ROCA was applied as a content-neutral, provisional measure necessary to ensure that the Legislature did not erode progress towards reducing prison overcrowding by passing legislation which would increase the prison population. ROCA necessitated many hard and difficult decisions for the Committee. In January of 2013, just over a year after the enactment of the historic Public Safety Realignment Act of 2011, the State of California filed court documents seeking to vacate or modify the federal court order to reduce the state's prison population to 137.5 percent of design capacity. The State submitted in part that the, ". . . population in the State's 33 prisons has been reduced by over 24,000 inmates since October 2011 when public safety realignment went into effect, by more than 36,000 inmates compared to the 2008 population . . . , and by nearly 42,000 inmates since 2006 . . . ." Plaintiffs, who oppose the state's (More) 378 (Block) Page 4 motion, argue in part that, "California prisons, which currently average 150% of capacity, and reach as high as 185% of capacity at one prison, continue to deliver health care that is constitutionally deficient." In an order dated January 29, 2013, the federal court granted the state a six-month extension to achieve the 137.5 % prisoner population cap by December 31st of this year. (More) The ongoing litigation indicates that prison capacity and related issues concerning conditions of confinement remain unsettled. However, in light of the real gains in reducing the prison population that have been made, although even greater reductions are required by the court, the Committee will review each ROCA bill with more flexible consideration. The following questions will inform this consideration: whether a measure erodes realignment; whether a measure addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction; whether a bill corrects a constitutional infirmity or legislative drafting error; whether a measure proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy; and whether a bill addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy. COMMENT 1. Need for This Bill According to the author: Prosecutors need court-certified copies of prior convictions in many cases, both to verify that charges are to be brought, and then to prove those charges at trial. These court-certified copies are taking longer to receive, despite the statutorily mandated time for bringing charged defendants to hearing. Court staff budget cuts make the processing of these requests onerous and time-consuming, as well as expensive. SB 378 will authorize the use of electronically digitized copies of prior convictions as admissible evidence to the same extent as the original record or a certified copy. This bill will result in cost savings and will decrease the processing time due to the (More) 378 (Block) Page 6 increased efficiency and speed with which items can be digitally scanned and emailed. 2. Admissibility of Documents and Records The Evidence Code generally governs the admissibility of evidence in civil and criminal proceedings including the admissibility of documents and records. The hearsay rule states that "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated" is inadmissible except as otherwise provided by law. (Evidence Code § 1200.) The Evidence Code creates a number of exceptions to the hearsay rule for documents and records that are produced by a public entity. The idea is that these documents are trustworthy: A long-established hearsay exception makes admissible the statement of a public official, provided the official was under a duty to make it and it was based on facts within the official's personal knowledge. The regular practice of the public office and the official duty make the statement trustworthy, and public functions could not be conveniently performed if officers and deputies were constantly called as witnesses to testify to the matters covered by official statements. (See 2 McCormick 6th, § 295; 5 Wigmore (Chadbourn Rev.) § 1630 et seq.; 80 A.L.R.3d 414 [admissibility of public record in absence of express statutory authorization]; 29A Am.Jur.2d (2008 ed.); (Evidence § 1296.) (1 Witkin Cal. Evid. Hearsay § 245.) 3. Electronically Digitized Versions of Documents This bill would make electronically digitized copies of an official record of a criminal conviction admissible. The definition for electronically digitized copy requires that it bear an electronic signature or watermark unique to the entity responsible for certifying the document. According to the sponsor, it has been taking longer to obtain court certified 378 (Block) Page 7 copies of prior convictions which can cause problems with the speedy trial timelines in a criminal case. This bill would allow them to use electronically digitized versions of the documents. ***************