BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 1867 (Steinorth)
Version: March 31, 2016
Hearing Date: June 14, 2016
Fiscal: No
Urgency: No
RD
SUBJECT
Evidence: judicial notice: official records of conviction
DESCRIPTION
Existing law provides that an official record of conviction
certified in accordance with specified law, or an electronically
digitized copy thereof, 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. Existing law
defines, "electronically digitized copy" to require, among other
things, that the copy bear an electronic signature or watermark
unique to the entity responsible for certifying the document.
This bill would now expand this definition of "electronically
digitized copy" to also include a copy that does not bear an
electronic signature or watermark, but that, instead, is a
certified copy of an official record of conviction, as
specified, that has been 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. This bill
would provide that a seal, signature, or other indicia of the
court shall constitute adequate showing.
BACKGROUND
Under the doctrine of "judicial notice," certain matters are
assumed to be indisputably true, and the introduction of
evidence to prove them will not be required. Judicial notice is
thus a substitute for formal proof. (See generally Evid. Code
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Sec. 450 et seq.) The use of judicial notice as a substitute
for formal proof of matters that cannot be successfully
controverted is seen as a highly desirable means of saving time
and money. Nevertheless, considerations of relevance remain
applicable. Thus, even material for which judicial notice might
seem mandatory may be excluded under other provisions of the
Evidence Code, such as Section 350, which provides that only
relevant evidence is admissible, or Section 352, which allows
for the exclusion of otherwise relevant evidence where its
probative value is substantially outweighed by the probability
of its prejudicial effect. (See 1 Witkin Cal. Evid. Judicial
Notice Sec. 1,
There are certain matters listed under Section 451 of the
Evidence Code of which judicial notice must be taken (compulsory
judicial notice) regardless of whether a party makes a request.
These include for example, the decisional, constitutional, and
public statutory law of this state and of the United States, as
well as facts and propositions of generalized knowledge that are
so universally known that they cannot reasonably be the subject
of dispute. There are other broader matters listed in Section
452 of the Evidence Code as to which judicial notice "may" be
taken (optional judicial notice-though once a party requests it,
it becomes compulsory and the court must grant judicial notice
under Section 453 of the Evidence Code). (See id. at Sec. 4.)
Those include, for example, official acts of the legislative,
executive, and judicial departments of the United States and of
any state of the United States, as well as any court records of
this state, or any court of record of the United States or of
any state of the United States. (Evid. Code Sec. 452(c), (d).)
Of particular relevance to this bill, the Criminal Convictions
Record Act, Section 452.5 of the Evidence Code, provides that
such official acts and records (of which judicial notice may be
taken) include 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. Most pertinent to this bill, this
section also allows an official record of conviction, certified
as a correct copy by a public employee, or a deputy of a public
employee, having the legal custody of the writing (or by other
authorized method), to be admitted 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. Moreover, as a
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result of legislation enacted in 2013, SB 378 (Block, Ch. 150,
Stats. 2013), an electronically digitized copy of an official
record of conviction is also admissible under this Act 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 as well.
That legislation specified that for these purposes,
"electronically digitized copy" means a copy that: (1) is made
by scanning, photographing, or otherwise exactly reproducing a
document; (2) is stored or maintained in a digitized format;
and (3) bears an electronic signature or watermark unique to the
entity responsible for certifying the document.
This bill would now expand "electronically digitized copy" for
these purposes to include a copy that: (1) is made by scanning,
photographing, or otherwise exactly reproducing a document; (2)
is stored or maintained in a digitized format; and (3) is
certified as an official record of conviction, as specified, and
transmitted by the superior court clerk in a manner showing
(such as by a seal, signature, or other indicia of the court)
that the copy was prepared and transmitted by that clerk.
CHANGES TO EXISTING LAW
Existing law defines "hearsay evidence" as 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. Existing law provides that, except as provided
by law, hearsay evidence is inadmissible. These provisions are
collectively known as the "hearsay rule." (Evid. Code Sec.
1200.)
Existing law provides that evidence of a writing made as a
record of an act, condition, or event is not made inadmissible
by the hearsay rule when offered in any civil or criminal
proceeding to prove the act, condition, or event, if:
the writing was made by and within the scope of duty of a
public employee;
the writing was made at or near the time of the act,
condition, or event; and
the sources of information and method and time of preparation
were such as to indicate its trustworthiness. (Evid. Code
Sec. 1280.)
Existing law , provides that the content of a writing may be
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proven by introducing the otherwise admissible original. (Evid.
Code Sec. 1520.) Existing law, the "Secondary Evidence Rule,"
provides that the content of a writing may also be proved by
otherwise admissible secondary evidence. The Secondary Evidence
Rule further requires, however, that the court exclude secondary
evidence of the content of writing if the court determines
either of the following:
a genuine dispute exists concerning material terms of the
writing and justice requires the exclusion; or
admission of the secondary evidence would be unfair. (Evid.
Code Sec. 1521(a).)
Existing law, the Secondary Evidence Rule provides that nothing
in the above makes admissible oral testimony to prove the
content of a writing if the testimony is inadmissible under
specified law regarding oral testimony of the content of a
writing.
Existing law further provides that nothing in these provisions
excuses compliance with Section 1401, below, requiring
authentication of a writing. (Evid. Code Sec. 1521(b), (c).)
Existing law requires, in a criminal action, that the court
exclude secondary evidence of the content of a writing under
specified circumstances. This section, however, does not apply
to, among other things, a copy of a writing in the custody of a
public entity, or a copy of a writing that is recorded in the
public records, if the record or a certified copy of it is made
evidence of the writing by statute. (Evid. Code Sec. 1522(a).)
Existing law requires authentication of a writing before it can
be received in evidence and also requires authentication of a
writing before secondary evidence of its content can be received
in evidence. (Evid. Code Sec. 1401.).
Existing law provides that a seal is presumed to be genuine and
its use authorized if it purports to be the seal of, among other
things:
the United States (U.S.) or a department, agency, or public
employee of the U.S.;
a public entity in the U.S. or a department, agency, or public
employee of such public entity; or
a notary public within any state of the U.S. (Evid. Code Sec.
1452.)
Existing law provides that a signature is presumed to be genuine
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and authorized if it purports to be the signature, affixed in
his official capacity, of:
a public employee of the U.S.;
a public employee of any public entity in the U.S.; or
a notary public within any state of the U.S. (Evid. Code Sec.
1453.)
Existing law , in relevant part, provides that a purported copy
of a writing in the custody of a public entity, or of an entry
in such a writing, is prima facie evidence of the existence and
content of such writing or entry if:
the copy purports to be published by the authority of the
nation or state, or public entity therein in which the writing
is kept;
the office in which the writing is kept is within the U.S or
specified territories and the copy is attested or certified as
a correct copy of the writing or entry by a public employee,
or a deputy of a public employee, having the legal custody of
the writing; or
the office in which the writing is kept is not within the U.S.
or any other territory described, above, and the copy is
attested as a correct copy of the writing or entry by a person
having authority to make attestation, as specified. (Evid.
Code Sec. 1530(a).)
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 U.S. and any state of
the U.S., and records of any court of this state, any other
state or the U.S. (Evid. Code Sec. 452(c), (d).)
Existing law provides that the official acts and records
specified above include any computer-generated official court
records, as specified by the Judicial Council, that relate to
criminal convictions, when the record is certified by a superior
court clerk pursuant to the Government Code at the time of
computer entry. (Evid. Code Sec. 452.5(a).)
Existing law provides that an official record of conviction
certified in accordance with specified law above, or an
electronically digitized copy thereof, 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. Existing
law provides "electronically digitized copy" means a copy that
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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. (Evid. Code
Sec. 452.5.)
This bill would, now, define "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 meets either of the
following:
the copy bears an electronic signature or watermark unique to
the entity responsible for certifying the document; or
the document that is copied is an official record of
conviction, certified in accordance with existing law, that is
transmitted by the superior court clerk in a manner showing
that the copy was prepared and transmitted by that clerk. A
seal, signature, or other indicia of the court shall
constitute adequate showing.
COMMENT
1. Stated need for the bill
According to the author:
Although courts are already allowed to prepare such documents
electronically, the requirement to use electronic signatures
or watermarks prevents most courts from using the electronic
system due to the lack of training, funds, and resources
required for implementation. Consequently, the system is
outdated as courts continue to use paper hard copies of
records. In using paper copies, [district attorney] offices
and other attorneys are often required to physically travel
back and forth to court clerk offices to obtain these records,
instead of being able to e-mail them.
By allowing courts to scan or photocopy existing paper records
for digital use, we can modernize our court system without
requiring any new equipment or additional training. Instead,
court clerks will be able to use existing equipment they are
already familiar with to transmit documents electronically.
AB 1867 will [ . . . ] allow for the use of copies of official
records of conviction. Instead of requiring that conviction
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records must be prepared electronically with electronic
signatures or watermarks, this bill will allow court clerk
offices to scan/photocopy existing hard copy records in order
to store or transmit them electronically. The copied records
must contain a seal, signature, or other indicia of the court
for purposes of ensuring authenticity.
The sponsor of this bill, the California District Attorneys
Association, writes that:
District Attorney offices around the state have large rooms
overflowing with certified paper records of prior convictions
for use in court when defendants commit a crime and we need to
prove that they have suffered a prior conviction that affects
their sentence. These have been obtained over the years by
ordering them from court clerks' offices when needed to prove
a prior conviction, and they are saved for later use should
the defendant commit another crime where that prior conviction
needs to be proven again.
As more DA offices move to paperless systems, we need to be
able to scan and save those documents electronically. We
would further like to obtain these records from court clerks'
offices via email or fax and keep that record in the first
instance only in its electronic form. Right now, we cannot do
either of these things, because a scanned, faxed, or
electronic copy of a certified copy of a prior conviction from
the court is inadmissible.
Currently, California law allows court clerks' offices to
prepare records of prior convictions electronically, and if
they are so prepared, to allow them to be presented in court
electronically. In order to take advantage of this law, a
court clerk's office would have to affix an electronic
signature or watermark to the electronically certified
documents. While it may not seem difficult or costly to
acquire the technology, train the staff, and actually put in
place the method of preparing such documents electronically,
with court budgets under tremendous strain, it is not
happening. Instead, we continue to receive certified copies
of prior convictions in paper form with original signatures on
the certifications.
[ . . . ] AB 1867 would allow for the introduction of
electronic copies, faxes, or paper copies of certified prior
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documents, which would make it easier to adopt paperless court
procedures for all parties. This would allow the electronic
storage and presentation of certified prior documents, and
also allow court clerks' offices to use their existing
certification methods for prior documents, but to just send
them electronically to all counsel for use in court.
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. (Evid. Code Sec. 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 1 Witkin Cal. Evid. Hearsay Sec. 245
(internal citations omitted).)
Currently, computer-generated official court records of criminal
records are admissible for purposes of judicial notice, and,
moreover, an official record of conviction certified as a
correct copy by a public employee, as otherwise required under
the law, is admissible as a record by a public employee under
Section 1280 of the Evidence Code to prove the conviction,
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. In line with the
longstanding hearsay exception outlined, above, Section 1280
reflects an exception to the hearsay rule for certain writings
made as a record of an act, condition, or event. Under that
section, such a writing is not considered inadmissible by the
general hearsay rule when offered in any civil or criminal
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proceeding to prove the act, condition, or event, as long as:
(1) the writing was made by and within the scope of duty of a
public employee; (2) the writing was made at or near the time of
the act, condition, or event; and (3) the sources of information
and method and time of preparation were such as to indicate its
trustworthiness.
In 2013, SB 378 (Block, Stats. 150, Stats. 2013) was enacted to
also make electronically digitized copies of these records
admissible to prove the conviction, 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. Pursuant to that bill, however, the definition for an
electronically digitized copy requires that it not only be made
by scanning, photographing, or otherwise exactly reproducing a
document, and be stored or maintained in a digitized format, but
that it "bear an electronic signature or watermark unique to the
entity responsible for certifying the document." At the time,
it was asserted by the bill's sponsor (the San Diego District
Attorney) that it has been taking longer to obtain court
certified copies of prior convictions which can cause problems
with the speedy trial timelines in a criminal case. (See Sen.
Pub. Safety Committee analysis of SB 378 (2013-2014 Reg.
Session) Apr. 9, 2013, p. 4.)
This bill, sponsored by the California District Attorneys
Association (CDAA), would now expand the types of electronically
digitized copies of these criminal conviction records that the
courts can take judicial notice of in civil or criminal cases.
Specifically, under this bill, an electronic digitized copy
could now include a copy that does not bear an electronic
signature or watermark, but that, instead, is a certified copy
of an official record of conviction that 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. For these purposes, the bill expressly provides that a
seal, signature, or other indicia of the court would constitute
adequate showing.
In support, the Judicial Council of California writes that "[b]y
expanding the definition of 'electronically digitized copy' the
council believes AB 1867 will enhance the ability of courts to
increase efficiencies by taking advantage of emerging
technologies."
3. Opposition
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The California Attorneys for Criminal Justice writes in
opposition:
Thousands of prison sentences in California are increased or
extended based upon prior convictions. These sentences are
often doubled or more based on prior convictions. Judges who
impose sentences rely on prior convictions as well. Therefore
it is critical that precise safeguards are utilized to ensure
documents admitted under "judicial notice" are accurate.
AB 1867 may be well intentioned, however, it weakens the
definition of "electronically digitized copy" and therefore
opens the door to courts relying on inaccurate documents.
Currently, Evidence Code 452.5 requires an electronic
signature or unique watermark [be] affixed to [the] document
to be considered an "electronically digitized copy." These
markings essentially attach to the electronic document to
ensure that the document is not altered in any way as it
passes through various hands. Unfortunately, AB 1867 makes
this electronic signature or watermark requirement optional.
It appears that this bill would allow a court record to be
emailed directly to a prosecutor, and the prosecutor could
simply print out the document and bring it to court to request
judicial notice of the document. [ . . . ] AB 1867 simply
requires that the email sent to the prosecutor's office
include a signature that it is being sent directly from a
court clerk. This is common when prosecutors seek to
introduce convictions from other counties. There is no
requirement that the document itself have a unique identifier
affixed to it to ensure authenticity. Documents go through
many hands in a district attorney's office. It is critical
that an emailed copy contain an identifier directly affixed to
it to ensure that no one intentionally or otherwise alters it.
This bill opens the door to mischief. Essentially, after a
document is printed out, it could be altered before being
presented to a court for judicial notice. It could also be
altered by someone other than the prosecutor who appears in
court, and she would have no basis to determine whether the
document is in fact an identical copy in a court file. There
are no safeguards attached to the document itself. While the
overwhelming majority of prosecutors in California are highly
professional and ethical, there are too many examples of
prosecutorial misconduct.
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Recently, a prosecutor in Kern County falsified a transcript
of an interrogation to include a fabricated statement of
admission of guilt by the accused. The prosecutor claimed the
alteration was a bad joke that was being misconstrued.
However, this demonstrates how easy it is for a prosecutor to
falsify a document when there is no requirement for a
certifying watermark. [ . . . ] This bill may be well
intentioned, but it weakens key protections in current law.
Support : Judicial Council; Los Angeles County District
Attorney's Office; San Bernardino County District Attorney's
Office
Opposition : California Attorneys for Criminal Justice
HISTORY
Source : California District Attorneys Association
Related Pending Legislation : None Known
Prior Legislation : SB 378 (Block, Ch. 150, Stats. 2013) See
Comment 2.
Prior Vote :
Assembly Floor (Ayes 77, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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