BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1867| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 1867 Author: Steinorth (R) Amended: 3/31/16 in Assembly Vote: 21 SENATE JUDICIARY COMMITTEE: 7-0, 6/14/16 AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski ASSEMBLY FLOOR: 77-0, 4/11/16 - See last page for vote SUBJECT: Evidence: judicial notice: official records of conviction SOURCE: California District Attorneys Association DIGEST: This bill, for purposes of judicial notice of criminal conviction records, expands an existing definition of "electronically digitized copy" to also allow a court to take judicial notice of an electronically digitized copy of the record that does not bear any electronic signature or watermark as is currently required, 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 provides that a seal, signature, or other indicia of the court shall constitute adequate showing. ANALYSIS: AB 1867 Page 2 Existing law: 1)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." 2)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. 1)Provides that the content of a writing may be proven by introducing the otherwise admissible original. 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. AB 1867 Page 3 1)Provides, under the Secondary Evidence Rule, 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 of the Evidence Code, below, requiring authentication of a writing. 2)Requires, in a criminal action, that the court exclude secondary evidence of the content of a writing under specified circumstances. This provision, 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. 3)Requires, under Section 1401 of the Evidence Code, that 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. 4)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. 1)Provides that a signature is presumed to be genuine and authorized if it purports to be the signature, affixed in his official capacity, of: a public employee of the U.S.; AB 1867 Page 4 a public employee of any public entity in the U.S.; or a notary public within any state of the U.S. 1)Provides under Section 1530 of the Evidence Code, in relevant part, 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. 1)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. 2)Provides, under Section 452.5 of the Evidence Code, 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. 3)Provides further that an official record of conviction AB 1867 Page 5 certified in accordance with Section 1530, above, as specified, 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 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. This bill defines "electronically digitized copy," instead, 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: 1)the copy bears an electronic signature or watermark unique to the entity responsible for certifying the document; or 2)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. 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 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 AB 1867 Page 6 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 result of legislation enacted in 2013, SB 378 (Block, Chapter 150, Statutes of 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 AB 1867 Page 7 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 now expands "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. Comment 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 Page 8 AB 1867 will [ . . . ] allow for the use of copies of official records of conviction. Instead of requiring that conviction 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. FISCAL EFFECT: Appropriation: No Fiscal Com.:NoLocal: No SUPPORT: (Verified6/17/16) California District Attorneys Association (source) Judicial Council Los Angeles County District Attorney's Office San Bernardino County District Attorney's Office OPPOSITION: (Verified6/17/16) California Attorneys for Criminal Justice ARGUMENTS IN SUPPORT: 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. AB 1867 Page 9 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 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. ARGUMENTS IN OPPOSITION: 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 AB 1867 Page 10 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. 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 AB 1867 Page 11 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. ASSEMBLY FLOOR: 77-0, 4/11/16 AYES: Achadjian, Alejo, Travis Allen, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood NO VOTE RECORDED: Gonzalez, Rendon Prepared by:Ronak Daylami / JUD. / (916) 651-4113 6/17/16 15:03:45 **** END ****