BILL ANALYSIS                                                                                                                                                                                                    



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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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