BILL ANALYSIS Ó
AB 1867
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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
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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
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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.
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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
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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
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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
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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
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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
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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.
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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."
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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.
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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
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