BILL ANALYSIS Ó AB 1867 Page 1 Date of Hearing: March 29, 2016 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 1867 (Steinorth) - As Introduced February 10, 2016 SUBJECT: EVIDENCE: ADMISSIBILITY; WRITINGS KEY ISSUES: 1)SHOULD COPIES OF CERTAIN SEALS AND SIGNATURES THAT ARE ELECTRONICALLY STORED, FAXED, OR PHOTOCOPIED BE SELF-AUTHENTICATING? 2)SHOULD AN ELECTRONICALLY STORED, FAXED, PHOTOCOPIED, OR OTHER DUPLICATE OF A COPY OF A GOVERNMENT WRITING WHICH HAS BEEN CERTIFED BY THE CUSTODIAN OF THE ORIGINAL WRITING, BE CONSIDERED PRIMA FACIE EVIDENCE OF THE EXISTENCE AND CONTENT OF THE WRITING, JUST LIKE THE CERTIFIED COPY ITSELF? 3)IN ORDER TO ADDRESS THE CONCERN THAT CURRENT LAW DOES NOT GIVE ENOUGH FLEXIBILITY TO COURTS THAT WANT TO UTILIZE ELECTRONICALLY DIGITIZED COPIES OF CRIMINAL CONVICTIONS, MIGHT IT BE PREFERABLE TO AMEND EXISTING LAW TO PROVIDE SUCH FLEXIBILITY? SYNOPSIS AB 1867 Page 2 Written documents are out of court statements. When sought to be admitted into evidence in a court proceeding to prove the truth of the content of the writing, they are hearsay and inadmissible unless an exception to the hearsay exception applies and allows them to be admitted for that purpose. California law allows a document to be admitted into evidence if it is authenticated by a witness in court and its content is verified. However, some documents are self-authenticating because of their source, such as a document from a government agency. Existing law allows documents with seals and signatures belonging to certain entities and individuals to be presumed as genuine. Existing law also allows certified copies of writings to be used to verify the content of the writing and specifically allows a certified copy of a criminal conviction to be admitted into evidence as proof of the conviction. That law was recently updated to allow an "electronically digitized copy" of a criminal conviction to be admitted into evidence as if it were a certified copy of the conviction. That statute, Section 452.5 of the Evidence Code, which was intended to modernize the Evidence Code to facilitate the use of electronic records, has reportedly been difficult to implement because it requires a court to have and use "an electronic signature or watermark unique to the entity responsible for certifying the document" in order to meet the definition of an "electronically digitized copy." According to the sponsor of this bill, the California District Attorneys Association, "This means that in order to take advantage of this new law, the court clerk's office would have to affix an electronic signature or watermark to the electronically certified document. Clerk's offices around the state have not yet been able to take advantage of this procedure to produce electronic records of convictions." In order to address this concern in a manner that is more narrowly tailored than the sweeping changes proposed in the current version of this bill, the author has agreed to delete the current content of this bill and, as an alternative, revise the definition of "electronically digitized copy" in Section 452.5. The Committee's suggested amendments would propose an alternative definition of "electronically digitized copy" that would allow AB 1867 Page 3 courts to make electronic copies of records and transmit them in a manner showing that the copy was prepared and transmitted by that clerk of the superior court. The definition would also clarify that "a seal, signature, or other indicia of the court shall constitute adequate showing." The proposed language, limited to certified copies of criminal convictions, will provide more flexibility for electronic copies of those records to be transmitted from courts and allow those copies to be admitted into evidence while ensuring that the actual custodian of the record has certified that the certified copy, as well as the electronic copy of that record, accurately reflects the content of the original writing. The author has indicated that he will accept the proposed amendments in Committee as author's amendments. This bill is supported by the San Bernardino County District Attorney and has no opposition on file. SUMMARY: Permits certain seals and signatures that are electronically stored, faxed, or photocopied to be self- authenticating, and allows the use of certain electronically stored, faxed, or photocopied documents to verify the content of a writing. Specifically, this bill: 1)Specifies that the presumption in current law, providing seals and signatures of certain government and other authorized entities or individuals are presumed to be genuine and their use authorized, also applies to electronically stored, faxed, photocopies of such seals and signatures. 2)Provides that the presumption in current law that an attested or certified copy of a writing can be used as prima facie evidence of the content of the writing if the writing is kept within the United States or other specified territory also applies to electronically stored, faxed, or photocopied versions of such writings. AB 1867 Page 4 EXISTING LAW: 1)Provides that evidence of a statement made outside of court is hearsay and inadmissible unless there is an exception. (Evidence Code Section 1200. All further statutory references are to the Evidence Code, unless otherwise indicated.) 2)Requires a writing to be authenticated before it is received into evidence and before secondary evidence is used to verify its content. (Section 1401.) 3)Creates a presumption that a seal is genuine and its use authorized if it purports to be the seal of one of a specified entity in the United States, of countries recognized by the United States, or a notary public in the United States. (Section 1452.) 4)Creates a presumption that a signature is genuine and its use authorized if it purports to be the signature of an employee of the United States, an employee of a public entity in the United States, or a notary public in the United State, so long as the individual is acting within his or her official capacity. (Section 1453.) 5)Provides that secondary evidence (a copy of a writing) that has been authenticated can be used to prove the content of a writing, unless either a genuine dispute exists regarding the terms of the writing, or admission of the evidence would be unfair. (Section 1521.) 6)Provides that an attested or certified copy of a writing can be used as prima facie evidence of the content of the writing if the writing is located in the United States or other AB 1867 Page 5 specified territory. (Section 1530 (a).) 7)Allows an official record of conviction certified in accordance with subdivision (a) of Section 1530, or an electronically digitized copy thereof, to be admitted into evidence 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 and defines "electronically digitized copy" to mean 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. (Section 452.5.) 8)Requires a publisher of official legal material that is published in an electronic form as the official record of that material, as part of the Uniform Electronic Legal Material Act, to provide a method for the user of that material to determine that the record is unaltered from the official record published by the publisher. (Government Code Section 10294.) FISCAL EFFECT: As currently in print this bill is keyed non-fiscal. COMMENTS: Documents are often used in court proceedings as evidence of disputed facts. Because a writing in a government record is an out of court statement, it is hearsay and therefore inadmissible in court to prove the truth of any matter asserted in the writing, unless a hearsay exception applies to the writing. (Section 1200.) Official government records and other official writings are admissible in court under exceptions to the hearsay rule. (See Sections 1280 et seq.) Before being AB 1867 Page 6 admitted as evidence, however, such records must be authenticated. Authentication of a document can be made by a witness in court who can verify the content of the writing. (Section 1413.) However, authenticating testimony is not always necessary because some documents are "self-authenticating." For example, existing law provides that seals of certain government entities on writings are presumed to be genuine and their use is presumed to be authorized, so no further evidence of authenticity of the writing is required. (Section 1452.) Existing law also provides that certain signatures, specifically those of public employees and notaries public, on writings are presumed to be genuine and their use is presumed to be authorized, so no further evidence of authenticity of the writing is required. (Section 1453.) Similarly, current law provides that a certified copy of a government writing can be used as prima facie evidence of the content of the writing if the government office is located in the United States or other specified territory and the copy is attested or certified by a public employee of the office having legal custody of the writing. (Section 1530 (a).) Changes to the Law Governing Self-Authentication of Seals and Signatures May not be Necessary. As currently in print, this bill would extend the presumption of authenticity that applies to seals and signatures of certain entities and individuals to copies of those seals and signatures that are electronically stored, faxed, and photocopied. It would make electronically stored, faxed and photocopied documents baring seals and signatures from certain individuals and entities presumptively authenticated for purposes of admissibility in court without the need for further authentication and without certification that the copy is genuine. As a result, the party who disputes the authenticity of the duplicated document would have the burden of proving that the document was not authentic. Sections 1452 and 1453 address the issue of authentication of documents with seals and signatures but do not specifically AB 1867 Page 7 address authentication of documents with seals and signatures that are copied or duplicated. Rather, the issue of duplication is addressed in an entirely different chapter of the Evidence Code (Chapter 2, "Secondary Evidence of Writings"). The fact that these are completely distinct evidentiary issues is reinforced by subdivision (c) of Section 1521, which states that "Nothing in this section excuses compliance with Section 1401 (authentication)." In fact, the Evidence Code provides guidance regarding the order in which the issues of authentication and duplication must be addressed: "Authentication of a writing is required before secondary evidence of its content may be received in evidence." (Sections 1401 (b), 1521 (c); See 2 Witkin, Cal. Evidence (5th Edition 2012) Documentary Evidence, sec. 5, p. 152.) Authentication may be established "by any other means provided by law" (Section 1400), including the statutory presumptions in Sections 1452 and 1453. (Cal. Law Revision Com. com., supra, foll. § 1400, p. 440 ["The requisite preliminary showing may also be supplied by a presumption."].) (People v. Goldsmith (2014) 59 Cal.4th 258, 268 [172 Cal.Rptr.3d 637, 326 P.3d 239].) There is no reason to think that a copy of a writing that is authenticated pursuant to Section 1452 and/or Section 1453 (because it has a seal and/or signature of a government office or employee) could not ultimately be admitted into evidence as proof of the content of the writing. But the issue of it being a copy would be addressed by statutes and case law governing secondary evidence (i.e. Section 1521, dealing with certified or attested copies), not by Section 1452 or 1453, as proposed by the language of this bill as it is currently in print. Because there is no evidence that the proposed amendments to Sections 1452 and 1453 are necessary or beneficial to the administration of justice, the author has agreed to delete those sections from the bill. Allowing Copies of Certified Copies of Government Writings to be Admitted into Evidence as Proof of the Content of Original Writings may be Inappropriate. The secondary evidence rule allows the content of a writing to be proved by either: 1) an otherwise admissible original, or 2) by otherwise admissible AB 1867 Page 8 secondary evidence, unless the court determines the secondary evidence should be excluded because either a genuine dispute exists about the material terms of the writing and justice requires the exclusion, or admission of the secondary evidence would be unfair. (Sections 1520, 1521.) According to the Law Revision Commission, Evidence Code section 1530 addresses three evidentiary issues: First, it is concerned with the problem of proving the content of an original writing by means of a copy, i.e., the best evidence rule. See Evidence Code § 1500. Second, it is concerned with authentication, for the copy must be authenticated as a copy of the original writing. Evidence Code § 1401. Finally, it is concerned with the hearsay rule, for a certification or attestation of authenticity is '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.' Evidence Code § 1200." (7 Cal. Law Revision Com. com. (Dec. 1965) p. 283, italics in original.) (In re Kirk (1999) 74 Cal.App.4th 1066, 1073.) The "Legislature's express retention of the authentication requirements in Evidence Code section 1521, subdivision (c) and its failure to amend the certification rules of Evidence Code sections 1530 and 1531 point to the conclusion that the certification rules have not been undercut by the enactment of the secondary evidence rule. Accordingly, compliance with the certification requirements . . . serves to implement the secondary evidence rule. (In re Kirk, supra, 74 Cal.App.4th at pp. 1073-1074.) Therefore, it is reasonable to assume that the Legislature intended to maintain the requirement for copies of official records to be certified as accurate by the original custodian of the record and did so for a reason: to ensure that the copy reflects the original record. The only party who can AB 1867 Page 9 do that is the party in possession of the original record. The recipient of such a record, on the other hand, has no ability to ensure that the record still exists or that the copy is accurate. The sponsor of this bill, the California District Attorneys Association (CDAA) argues that this bill is necessary because "District Attorney offices throughout [sic.] the state should be permitted to electronically store and present copies of certified prior convictions." CDAA further states that this bill is "critical to bringing our courts up to speed with technology, streamlining government services to improve public safety and cut costs to our already underfunded court system." However, this bill is not limited to criminal proceedings. It affects all writings with certifications by the custodians of those writings and allows copies of those copies to be presumed accurate versions of the original writings and introduced into evidence as if they, too, were certified. In effect, the bill would allow a person or entity who receives a certified copy of a record to become the custodian of the record, even though the recipient would have no personal knowledge about whether the record itself still existed and was accurate. Whereas current law provides that an attested or certified copy of a government writing can be used as prima facie evidence of the content of the writing if the copy is attested or certified by a public employee of the office having legal custody of the writing, this bill would provide that the same evidentiary weight would be given to the office without legal custody of the writing itself. In fact, as currently in print, this bill would seem to bypass the certification requirement in Section 1521 and allow the copy of the signature or seal to be used to authenticate the original without also requiring authentication of the copy itself. The requirement in Section 1521 that copies must be authenticated by attestation of certification would seem to be a requirement worth keeping, at least absent any additional requirements in Sections 1452 and 1453 regarding how the electronic copies or photocopies are created and maintained. To address these issues, the author has agreed to delete these two sections from the bill. AB 1867 Page 10 A Better Solution to Facilitate the use of Electronic Copies of Records May be to Revise Section 452.5, Which Addresses Electronically Digitized Records of Convictions. The sponsor asserts that current law regarding the use and admissibility of "electronically digitized copies" of records of criminal convictions, enacted by the Legislature in 2013 (SB 378 (Block), Chapter 150, Stats. of 2013) is overly restrictive and therefore is not widely used. SB 378 amended subdivision (b) of Section 452.5 (with changes to then-existing law in bold) as follows: (b)(1) An official record of conviction certified in accordance with subdivision (a) of Section 1530, or an electronically digitized copy thereof, is admissible under Section 1280 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. (2) For purposes of this subdivision, "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. According to CDAA, "This means that in order to take advantage of this new law, the court clerk's office would have to affix an electronic signature or watermark to the electronically certified document. Clerk's offices around the state have not yet been able to take advantage of this procedure to produce electronic records of convictions." AB 1867 Page 11 In order to address this concern in a manner that is more narrowly tailored than the sweeping changes in the current version of this bill, the author has agreed to delete the current contents of the bill and, as an alternative, revise the definition of "electronically digitized copy" in Section 452.5, as follows: (2) For purposes of this subdivision, "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 meets one of the following requirements: (A) The copy bears an electronic signature or watermark unique to the entity responsible for certifying the document. (B) The document that is copied is an official record of conviction certified in accordance with subdivision (a) of Section 1530 which is transmitted by the clerk of the superior court in a manner showing that the copy was prepared and transmitted by that clerk of the superior court. A seal, signature, or other indicia of the court shall constitute adequate showing. The proposed language, limited to certified copies of criminal convictions, will provide more flexibility for electronic copies of those records to be transmitted from courts and allow those copies to be admitted into evidence while ensuring that the actual custodian of the record has certified that the certified copy, as well as the electronic copy of that record, accurately reflects the content of the original writing. AB 1867 Page 12 SIMILAR PAST LEGISLATION. SB 378 (Block, Chapter 150, Stats. of 2013) defined an "electronically digitized copy" of a record of conviction to mean 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 and provided that an electronically digitized copy of the record is admissible as if it were a certified copy of such a record. REGISTERED SUPPORT / OPPOSITION: Support California District Attorneys Association San Bernardino County District Attorney Opposition None on file Analysis Prepared by:Alison Merrilees and Navnit Bhandal / JUD. / (916) 319-2334 AB 1867 Page 13