Copyright © 2011

Thomson Reuters

Copyright © 2011

Thomson Reuters

CALIFORNIA EVIDENCE CODE*

DIVISION 1. PRELIMINARY PROVISIONS AND CONSTRUCTION

Analysis

Sec.

1. Short title.

2. Common law rule construing code abrogated.

3. Severability.

4. Construction of code.

5. Effect of headings.

6. References to statutes.

7. "Division," "chapter," "article," "section," "subdivision," and "paragraph".

8. Construction of tenses.

9. Construction of genders.

10. Construction of singular and plural.

11. "Shall" and "may".

12. Code becomes operative January 1, 1967; effect on pending proceedings.

DIVISION 2. WORDS AND PHRASES DEFINED

100. Application of definitions.

105. "Action".

110. "Burden of producing evidence".

115. "Burden of proof".

120. "Civil action".

125. "Conduct".

130. "Criminal action".

135. "Declarant".

140. "Evidence".

145. "The hearing".

150. "Hearsay evidence".

160. "Law".

165. "Oath".

170. "Perceive".

175. "Person".

177. "Dependent person".

180. "Personal property".

185. "Property".

190. "Proof".

195. "Public employee".

200. "Public entity".

205. "Real property".

210. "Relevant evidence".

220. "State".

225. "Statement".

230. "Statute".

235. "Trier of fact".

240. "Unavailable as a witness".

250. "Writing".

255. "Original".

260. "Duplicate".

DIVISION 3. GENERAL PROVISIONS

CHAPTER 1. APPLICABILITY OF CODE

300. Applicability of code.

CHAPTER 2. PROVINCE OF COURT AND JURY

310. Questions of law for court.

311. Foreign law applicable; law undetermined; procedures.

312. Jury as trier of fact.

CHAPTER 3. ORDER OF PROOF

320. Power of court to regulate order of proof.

CHAPTER 4. ADMITTING AND EXCLUDING EVIDENCE

ARTICLE 1. GENERAL PROVISIONS

350. Only relevant evidence admissible.

351. Admissibility of relevant evidence.

351.1. Polygraph examinations; results, opinion of examiner or reference; exclusion.

352. Discretion of court to exclude evidence.

352.1. Criminal sex acts; victim's address and telephone number.

353. Erroneous admission of evidence; effect.

354. Erroneous exclusion of evidence; effect.

355. Limited admissibility.

356. Entire act, declaration, conversation, or writing, to elucidate part offered.

ARTICLE 2. PRELIMINARY DETERMINATIONS ON ADMISSIBILITY OF EVIDENCE

400. "Preliminary Fact".

401. "Proffered evidence".

402. Procedure for determining foundational and other preliminary facts.

403. Determination of foundational and other preliminary facts where relevancy, personal knowledge, or authenticity is disputed.

404. Determination of whether proffered evidence is incriminatory.

405. Determination of foundational and other preliminary facts in other cases.

406. Evidence affecting weight or credibility.

CHAPTER 5. WEIGHT OF EVIDENCE GENERALLY

410. Direct evidence.

411. Direct evidence of one witness sufficient.

412. Party having power to produce better evidence.

413. Party's failure to explain or deny evidence.

DIVISION 4. JUDICIAL NOTICE

450. Judicial notice may be taken only as authorized by law.

451. Matters which must be judicially noticed.

452. Matters which may be judicially noticed.

452.5. Criminal conviction records; computer-generated records; admissibility.

453. Compulsory judicial notice upon request.

454. Information that may be used in taking judicial notice.

455. Opportunity to present information to court.

456. Noting denial of request to take judicial notice.

457. Instructing jury on matter judicially noticed.

458. Judicial notice by trial court in subsequent proceedings.

459. Judicial notice by reviewing court.

460. Appointment of expert by court.

DIVISION 5. BURDEN OF PROOF; BURDEN OF PRODUCING EVIDENCE; PRESUMPTIONS AND INFERENCES

CHAPTER 1. BURDEN OF PROOF

ARTICLE 1. GENERAL

500. Party who has the burden of proof.

501. Criminal actions; statutory assignment of burden of proof; controlling section.

502. Instructions on burden of proof.

ARTICLE 2. BURDEN OF PROOF ON SPECIFIC ISSUES

520. Claim that person guilty of crime or wrongdoing.

521. Claim that person did not exercise care.

522. Claim that person is or was insane.

523. Historic locations of water; claims involving state land patents or grants.

524. Burden of proof in cases involving State Board of Equalization

CHAPTER 2. BURDEN OF PRODUCING EVIDENCE

550. Party who has the burden of producing evidence.

CHAPTER 3. PRESUMPTIONS AND INFERENCES

ARTICLE 1. GENERAL

600. Presumption and inference defined.

601. Classification of presumptions.

602. Statute making one fact prima facie evidence of another fact.

603. Presumption affecting the burden of producing evidence defined.

604. Effect of presumption affecting burden of producing evidence.

605. Presumption affecting the burden of proof defined.

606. Effect of presumption affecting burden of proof.

607. Effect of certain presumptions in a criminal action.

ARTICLE 2. CONCLUSIVE PRESUMPTIONS

620. Conclusive presumptions.

621. Repealed by Stats.1992, c. 162 (A.B.2650), 8, operative Jan. 1, 1994.

621.1. Repealed by Stats.1993, c. 219 (A.B.1500), 76.

622. Facts recited in written instrument.

623. Estoppel by own statement or conduct.

624. Estoppel of tenant to deny title of landlord.

ARTICLE 3. PRESUMPTIONS AFFECTING THE BURDEN OF PRODUCING EVIDENCE

630. Presumptions affecting the burden of producing evidence.

631. Money delivered by one to another.

632. Thing delivered by one to another.

633. Obligation delivered up to the debtor.

634. Person in possession of order on self.

635. Obligation possessed by creditor.

636. Payment of earlier rent or installments.

637. Ownership of things possessed.

638. Property ownership acts.

639. Judgment correctly determines rights of parties.

640. Writing truly dated.

641. Letter received in ordinary course of mail.

642. Conveyance by person having duty to convey real property.

643. Authenticity of ancient document.

644. Book purporting to be published by public authority.

645. Book purporting to contain reports of cases.

645.1. Printed materials purporting to be particular newspaper or periodical.

646. Res ipsa loquitur; instruction.

647. Return of process served by registered process server.

ARTICLE 4. PRESUMPTIONS AFFECTING THE BURDEN OF PROOF

660. Presumptions affecting the burden of proof.

661. Repealed by Stats.1975, c. 1244, p. 3202, 14.

662. Owner of legal title to property is owner of beneficial title.

663. Ceremonial marriage.

664. Official duty regularly performed.

665. Ordinary consequences of voluntary act.

666. Judicial action lawful exercise of jurisdiction.

667. Death of person not heard from in five years.

668. Unlawful intent.

669. Due care; failure to exercise.

669.1. Standards of conduct for public employees; presumption of failure to exercise due care.

669.5. Ordinances limiting building permits or development of buildable lots for residential purposes; impact on supply of residential units; actions challenging validity.

670. Payments by check.

DIVISION 6. WITNESSES

CHAPTER 1. COMPETENCY

700. General rule as to competency.

701. Disqualification of witness.

702. Personal knowledge of witness.

703. Judge as witness.

703.5. Judges, arbitrators or mediators as witnesses; subsequent civil proceeding.

704. Juror as witness.

CHAPTER 2. OATH AND CONFRONTATION

710. Oath required.

711. Confrontation.

712. Blood samples; technique in taking; affidavits in criminal actions; service; objections.

CHAPTER 3. EXPERT WITNESSES

ARTICLE 1. EXPERT WITNESSES GENERALLY

720. Qualification as an expert witness.

721. Cross-examination of expert witness.

722. Credibility of expert witness.

723. Limit on number of expert witnesses.

ARTICLE 2. APPOINTMENT OF EXPERT WITNESS BY COURT

730. Appointment of expert by court.

731. Payment of court-appointed expert.

732. Calling and examining court-appointed expert.

733. Right to produce other expert evidence.

CHAPTER 4. INTERPRETERS AND TRANSLATORS

750. Rules relating to witnesses apply to interpreters and translators.

751. Oath required of interpreters and translators.

752. Interpreters for witnesses.

753. Translators of writings.

754. Deaf or hearing impaired persons; interpreters; qualifications; guidelines; compensation; questioning; use of statements.

754.5. Privileged statements; deaf or hearing impaired persons; use of interpreter.

755. Hearings or proceedings related to domestic violence; party not proficient in English; interpreters; fees.

755.5. Medical examinations; parties not proficient in English language; interpreters; fees; admissibility of record.

CHAPTER 5. METHOD AND SCOPE OF EXAMINATION

ARTICLE 1. DEFINITIONS

760. Direct examination.

761. Cross-examination.

762. Redirect examination.

763. Recross-examination.

764. Leading question.

ARTICLE 2. EXAMINATION OF WITNESSES

765. Court to control mode of interrogation.

766. Responsive answers.

767. Leading questions.

768. Writings.

769. Inconsistent statement or conduct.

770. Evidence of inconsistent statement of witness; exclusion; exceptions.

771. Production of writing used to refresh memory.

772. Order of examination.

773. Cross-examination.

774. Re-examination.

775. Court may call witnesses.

776. Examination of adverse party or person identified with adverse party.

777. Exclusion of witness.

778. Recall of witness.

CHAPTER 6. CREDIBILITY OF WITNESSES

ARTICLE 1. CREDIBILITY GENERALLY

780. Testimony; proof of truthfulness, considerations.

782. Sexual offenses; evidence of sexual conduct of complaining witness; procedure for admissibility; treatment of resealed affidavits.

783. Sexual harassment, sexual assault, or sexual battery cases; admissibility of evidence of plaintiff's sexual conduct; procedure.

ARTICLE 2. ATTACKING OR SUPPORTING CREDIBILITY

785. Parties may attack or support credibility.

786. Character evidence generally.

787. Specific instances of conduct.

788. Prior felony conviction.

789. Religious belief.

790. Good character of witness.

791. Prior consistent statement of witness.

CHAPTER 7. HYPNOSIS OF WITNESSES

795. Testimony of hypnosis subject; admissibility; conditions.

DIVISION 7. OPINION TESTIMONY AND SCIENTIFIC EVIDENCE

CHAPTER 1. EXPERT AND OTHER OPINION TESTIMONY

ARTICLE 1. EXPERT AND OTHER OPINION TESTIMONY GENERALLY

800. Lay witnesses; opinion testimony.

801. Expert witness; opinion testimony.

802. Statement of basis of opinion.

803. Opinion based on improper matter.

804. Opinion based on opinion or statement of another.

805. Opinion on ultimate issue.

ARTICLE 2. EVIDENCE OF MARKET VALUE OF PROPERTY

810. Application of article.

811. Value of property.

812. Market value; interpretation of meaning.

813. Value of property; authorized opinions; view of property; admissible evidence.

814. Matter upon which opinion must be based.

814.5. Repealed by Stats.1971, c. 1574, p. 3154, 1.4, operative July 1, 1972.

815. Sales of subject property.

816. Comparable sales.

817. Leases of subject property.

818. Comparable leases.

819. Capitalization of income.

820. Reproduction cost.

821. Conditions in general vicinity of subject property.

822. Matter upon which opinion may not be based.

823. Property with no relevant, comparable market.

824. Nonprofit, special use property.

ARTICLE 3. OPINION TESTIMONY ON PARTICULAR SUBJECTS

870. Opinion as to sanity.

CHAPTER 2. BLOOD TESTS TO DETERMINE PATERNITY [REPEALED]

890 to 895. Repealed by Stats.1992, c. 162 (A.B.2650), 9, operative Jan. 1, 1994.

895.5. Repealed by Stats.1993, c. 219 (A.B.1500), 77.

896, 897. Repealed by Stats.1992, c. 162 (A.B.2650), 9, operative Jan. 1, 1994.

DIVISION 8. PRIVILEGES

CHAPTER 1. DEFINITIONS

900. Application of definitions.

901. Proceeding.

902. Civil proceeding.

903. Criminal proceeding.

904. Blank.

905. Presiding officer.

CHAPTER 2. APPLICABILITY OF DIVISION

910. Applicability of division.

CHAPTER 3. GENERAL PROVISIONS RELATING TO PRIVILEGES

911. Refusal to be or have another as witness, or disclose or produce any matter.

912. Waiver of privilege.

913. Comment on, and inferences from, exercise of privilege.

914. Determination of claim of privilege; limitation on punishment for contempt.

915. Disclosure of privileged information in ruling on claim of privilege.

916. Exclusion of privileged information where persons authorized to claim privilege are not present.

917. Presumption that certain communications are confidential; privileged character of electronic communications.

918. Error in overruling claim of privilege.

919. Admissibility where disclosure erroneously compelled; claim of privilege; coercion.

920. Implied repeal of other statutes related to privileges.

CHAPTER 4. PARTICULAR PRIVILEGES

ARTICLE 1. PRIVILEGE OF DEFENDANT IN CRIMINAL CASE

930. Privilege not to be called as a witness and not to testify.

ARTICLE 2. PRIVILEGE AGAINST SELF–INCRIMINATION

940. Privilege against self-incrimination.

ARTICLE 3. LAWYER–CLIENT PRIVILEGE

950. Lawyer.

951. Client.

952. Confidential communication between client and lawyer.

953. Holder of the privilege.

954. Lawyer-client privilege.

955. When lawyer required to claim privilege.

956. Exception: Crime or fraud.

956.5. Reasonable belief that disclosure of confidential communication is necessary to prevent criminal act resulting in death or substantial bodily harm; exception to privilege.

957. Exception: Parties claiming through deceased client.

958. Exception: Breach of duty arising out of lawyer-client relationship.

959. Exception: Lawyer as attesting witness.

960. Exception: Intention of deceased client concerning writing affecting property interest.

961. Exception: Validity of writing affecting property interest.

962. Exception:Joint clients.

ARTICLE 4. PRIVILEGE NOT TO TESTIFY AGAINST SPOUSE

970. Spouse's privilege not to testify against spouse; exception.

971. Privilege not to be called as a witness against spouse.

972. Exceptions to privilege.

973. Waiver of privilege.

ARTICLE 5. PRIVILEGE FOR CONFIDENTIAL MARITAL COMMUNICATIONS

980. Confidential marital communication privilege.

981. Exception: Crime or fraud.

982. Commitment or similar proceeding.

983. Competency proceedings.

984. Proceeding between spouses.

985. Criminal proceedings.

986. Juvenile court proceedings.

987. Exception—Communication offered by spouse who is criminal defendant.

ARTICLE 6. PHYSICIAN–PATIENT PRIVILEGE

990. Physician.

991. Patient.

992. Confidential communication between patient and physician.

993. Holder of the privilege.

994. Physician-patient privilege.

995. When physician required to claim privilege.

996. Patient-litigant exception.

997. Exception: Crime or tort.

998. Exception: Criminal proceeding.

999. Communication relating to patient condition in proceeding to recover damages; good cause.

1000. Parties claiming through deceased patient.

1001. Breach of duty arising out of physician-patient relationship.

1002. Intention of deceased patient concerning writing affecting property interest.

1003. Validity of writing affecting property interest.

1004. Commitment or similar proceeding.

1005. Proceeding to establish competence.

1006. Required report.

1007. Exception—Proceeding to terminate right, license or privilege.

ARTICLE 7. PSYCHOTHERAPIST–PATIENT PRIVILEGE

1010. Psychotherapist.

1010.5. Privileged communication between patient and educational psychologist.

1011. Patient.

1012. Confidential communication between patient and psychotherapist.

1013. Holder of the privilege.

1014. Psychotherapist-patient privilege; application to individuals and entities.

1014.5. Repealed by Stats.1994, c. 1270 (A.B.2659), 2.

1015. When psychotherapist required to claim privilege.

1016. Exception: Patient-litigant exception.

1017. Exception: Psychotherapist appointed by court or board of prison terms.

1018. Exception: Crime or tort.

1019. Exception: Parties claiming through deceased patient.

1020. Exception: Breach of duty arising out of psychotherapist-patient relationship.

1021. Exception: Intention of deceased patient concerning writing affecting property interest.

1022. Exception: Validity of writing affecting property interest.

1023. Exception: Proceeding to determine sanity of criminal defendant.

1024. Exception: Patient dangerous to himself or others.

1025. Exception: Proceeding to establish competence.

1026. Exception: Required report.

1027. Exception: Child under 16 victim of crime.

1028. Repealed by Stats.1985, c. 1077, § 1, 2.

ARTICLE 8. CLERGY–PENITENT PRIVILEGES

1030. Member of the Clergy.

1031. Penitent.

1032. Penitential communication.

1033. Privilege of penitent.

1034. Privilege of clergy.

ARTICLE 8.5. SEXUAL ASSAULT COUNSELOR–VICTIM PRIVILEGE

1035. Victim.

1035.2. Sexual assault counselor.

1035.4. Confidential communication between the sexual assault counselor and the victim; disclosure.

1035.6. Holder of the privilege.

1035.8. Sexual assault counselor privilege.

1036. Claim of privilege by sexual assault counselor.

1036.2. Sexual assault.

ARTICLE 8.7. DOMESTIC VIOLENCE COUNSELOR–VICTIM PRIVILEGE

1037. Victim.

1037.1. Domestic violence counselor; qualifications; domestic violence victim service organization.

1037.2. Confidential communication; compulsion of disclosure by court; claim of privilege.

1037.3. Child abuse; reporting.

1037.4. Holder of the privilege.

1037.5. Privilege of refusal to disclose communication; claimants.

1037.6. Claim of privilege by counselor.

1037.7. Domestic violence.

ARTICLE 8.8. HUMAN TRAFFICKING CASEWORKER–VICTIM PRIVILEGE

1038. Privilege.

1038.1. Compulsion of disclosure by court.

1038.2. Definitions.

ARTICLE 9. OFFICIAL INFORMATION AND IDENTITY OF INFORMER

1040. Privilege for official information.

1041. Privilege for identity of informer.

1042. Adverse order or finding in certain cases.

1043. Peace officer personnel records; discovery or disclosure; procedure.

1044. Medical or psychological history records; right of access.

1045. Peace officers; access to records of complaints or discipline imposed; relevancy; protective orders.

1046. Allegation of excessive force by peace officer during arrest; police arrest report.

1047. Arrests; records of peace officers; exemption from disclosure.

ARTICLE 10. POLITICAL VOTE

1050. Privilege to protect secrecy of vote.

ARTICLE 11. TRADE SECRET

1060. Privilege to protect trade secret.

1061. Procedure for assertion of trade secret privilege.

1062. Exclusion of public from criminal proceeding; motion; contents; hearing; determination.

1063. Sealing of articles protected by protective order; procedures.

CHAPTER 5. IMMUNITY OF NEWSMAN FROM CITATION FOR CONTEMPT

1070. Refusal to disclose news source.

DIVISION 9. EVIDENCE AFFECTED OR EXCLUDED BY EXTRINSIC POLICIES

CHAPTER 1. EVIDENCE OF CHARACTER, HABIT, OR CUSTOM

1100. Manner of proof of character.

1101. Evidence of character to prove conduct.

1102. Opinion and reputation evidence of character of criminal defendant to prove conduct.

1103. Character evidence of crime victim to prove conduct; evidence of defendant's character or trait for violence; evidence of manner of dress of victim; evidence of complaining witness' sexual conduct.

1104. Character trait for care or skill.

1105. Habit or custom to prove specific behavior.

1106. Sexual harassment, sexual assault, or sexual battery cases; opinion or reputation evidence of plaintiff's sexual conduct; inadmissibility; exception; cross-examination.

1107. Intimate partner battering and its effects; expert testimony in criminal actions; sufficiency of foundation; abuse and domestic violence; applicability to Penal Code; impact on decisional law.

1108. Evidence of another sexual offense by defendant; disclosure; construction of section.

1109. Evidence of defendant's other acts of domestic violence.

CHAPTER 2. MEDIATION

1115. Definitions.

1116. Effect of chapter.

1117. Application of chapter.

1118. Oral agreements.

1119. Written or oral communications during mediation process; admissibility.

1120. Evidence otherwise admissible.

1121. Mediator's reports and findings.

1122. Communications or writings; conditions to admissibility.

1123. Written settlement agreements; conditions to admissibility.

1124. Oral agreements; conditions to admissibility.

1125. End of mediation; satisfaction of conditions.

1126. Protections before and after mediation ends.

1127. Attorney's fees and costs.

1128. Subsequent trials; references to mediation.

CHAPTER 3. OTHER EVIDENCE AFFECTED OR EXCLUDED BY EXTRINSIC POLICIES

1150. Evidence to test a verdict.

1151. Subsequent remedial conduct.

1152. Offer to compromise.

1152.5. Repealed by Stats.1997, c. 772 (A.B.939), 5.

1152.6. Repealed by Stats.1997, c. 772 (A.B.939), 6.

1153. Offer to plead guilty or withdrawn plea of guilty by criminal defendant.

1153.5. Offer for civil resolution of crimes against property.

1154. Offer to discount a claim.

1155. Liability insurance.

1156. Records of medical or dental study of in-hospital staff committee.

1156.1. Records of medical or psychiatric studies of quality assurance committees.

1157. Proceedings and records of organized committees having responsibility of evaluation and improvement of quality of care; exceptions.

1157.5. Organized committee of nonprofit medical care foundation or professional standards review organization; proceedings and records.

1157.6. Proceedings and records of quality assurance committees for county health facilities.

1157.7. Application of Section 1157 discovery or testimony prohibitions; application of public records and meetings provisions.

1158. Inspection and copying of patient's records; authorization; failure to comply; costs.

1159. Animal experimentation in product liability actions.

1160. Admissibility of expressions of sympathy or benevolence; definitions.

DIVISION 10. HEARSAY EVIDENCE

CHAPTER 1. GENERAL PROVISIONS

1200. The hearsay rule.

1201. Multiple hearsay.

1202. Credibility of hearsay declarant.

1203. Cross-examination of hearsay declarant.

1203.1. Hearsay offered at preliminary examination; in application of 1203.

1204. Hearsay statement offered against criminal defendant.

1205. No implied repeal.

CHAPTER 2. EXCEPTIONS TO THE HEARSAY RULE

ARTICLE 1. CONFESSIONS AND ADMISSIONS

1220. Admission of party.

1221. Adoptive admission.

1222. Authorized admission.

1223. Admission of co-conspirator.

1224. Statement of declarant whose liability or breach of duty is in issue.

1225. Statement of declarant whose right or title is in issue.

1226. Statement of minor child in parent's action for child's injury.

1227. Statement of declarant in action for his wrongful death.

1228. Admissibility of certain out-of-court statements of minors under the age of 12; establishing elements of certain sexually oriented crimes; notice to defendant.

1228.1. Signature of parent or guardian on child welfare services case plan; acceptance of services; use in court of law; failure to cooperate.

ARTICLE 2. DECLARATIONS AGAINST INTEREST

1230. Declarations against interest.

ARTICLE 2.5. SWORN STATEMENTS REGARDING GANG–RELATED CRIMES

1231. Prior statements of deceased declarant; hearsay exception.

1231.1. Statements made by deceased declarant; admissibility; notice of statement to adverse party.

1231.2. Administer and certify oaths.

1231.3. Testimony of law enforcement officer; hearsay.

1231.4. Cause of death; deceased declarant.

ARTICLE 3. PRIOR STATEMENTS OF WITNESSES

1235. Inconsistent statement.

1236. Prior consistent statement.

1237. Past recollection recorded.

1238. Prior identification.

ARTICLE 4. SPONTANEOUS, CONTEMPORANEOUS, AND DYING DECLARATIONS

1240. Spontaneous statement.

1241. Contemporaneous statement.

1242. Dying declaration.

ARTICLE 5. STATEMENTS OF MENTAL OR PHYSICAL STATE

1250. Statement of declarant's then existing mental or physical state.

1251. Statement of declarant's previously existing mental or physical state.

1252. Restriction on admissibility of statement of mental or physical state.

1253. Statements for purposes of medical diagnosis or treatment; contents of statement; child abuse or neglect; age limitations.

ARTICLE 6. STATEMENTS RELATING TO WILLS AND TO CLAIMS AGAINST ESTATES

1260. Statement concerning declarant's will.

1261. Statement of decedent offered in action against his estate.

ARTICLE 7. BUSINESS RECORDS

1270. A business.

1271. Admissible writings.

1272. Absence of entry in business records.

ARTICLE 8. OFFICIAL RECORDS AND OTHER OFFICIAL WRITINGS

1280. Record by public employee.

1281. Vital statistics record.

1282. Finding of presumed death by authorized federal employee.

1283. Record by federal employee that person is missing, captured, beleaguered, beseiged, detained, or dead.

ARTICLE 9. FORMER TESTIMONY

1284. Statement of absence of public record.

1290. Former testimony.

1291. Former testimony offered against party to former proceeding.

1292. Former testimony offered against person not a party to former proceeding.

1293. Former testimony by minor child complaining witness at preliminary examination.

1294. Unavailable witnesses; prior inconsistent statements; preliminary hearing or prior proceeding.

ARTICLE 10. JUDGMENTS

1300. Judgment of conviction of crime punishable as felony.

1301. Judgment against person entitled to indemnity.

1302. Judgment determining liability of third person.

ARTICLE 11. FAMILY HISTORY

1310. Statement concerning declarant's own family history.

1311. Statement concerning family history of another.

1312. Entries in family records and the like.

1313. Reputation in family concerning family history.

1314. Reputation in community concerning family history.

1315. Church records concerning family history.

1316. Marriage, baptismal and similar certificates.

ARTICLE 12. REPUTATION AND STATEMENTS CONCERNING COMMUNITY HISTORY, PROPERTY INTERESTS, AND CHARACTER

1320. Reputation concerning community history.

1321. Reputation concerning public interest in property.

1322. Reputation concerning boundary or custom affecting land.

1323. Statement concerning boundary.

1324. Reputation concerning character.

ARTICLE 13. DISPOSITIVE INSTRUMENTS AND ANCIENT WRITINGS

1330. Recitals in writings affecting property.

1331. Recitals in ancient writings.

ARTICLE 14. COMMERCIAL, SCIENTIFIC, AND SIMILAR PUBLICATIONS

1340. Publications relied upon as accurate in the course of business.

1341. Publications concerning facts of general notoriety and interests.

ARTICLE 15. DECLARANT UNAVAILABLE AS WITNESS

1350. Unavailable declarant; hearsay rule.

1360. Statements describing an act or attempted act of child abuse or neglect; criminal prosecutions; requirements.

1370. Threat of infliction of injury.

1380. Elder and Dependent Adults; statements by victims of abuse.

1390. Statements against parties involved in causing unavailability of declarant as witness

DIVISION 11. WRITINGS

CHAPTER 1. AUTHENTICATION AND PROOF OF WRITINGS

ARTICLE 1. REQUIREMENT OF AUTHENTICATION

1400. Authentication.

1401. Authentication required.

1402. Authentication of altered writing.

ARTICLE 2. MEANS OF AUTHENTICATING AND PROVING WRITINGS

1410. Article not exclusive.

1410.5. Graffiti constitutes a writing; admissibility.

1411. Subscribing witness' testimony unnecessary.

1412. Use of other evidence when subscribing witness' testimony required.

1413. Witness to the execution of a writing.

1414. Admission of authenticity; acting upon writing as authentic.

1415. Authentication by handwriting evidence.

1416. Proof of handwriting by person familiar therewith.

1417. Comparison of handwriting by trier of fact.

1418. Comparison of writing by expert witness.

1419. Exemplars when writing is 30 years old.

1420. Authentication by evidence of reply.

1421. Authentication by content.

ARTICLE 3. PRESUMPTIONS AFFECTING ACKNOWLEDGED WRITINGS AND OFFICIAL

1450. Classification of presumptions in article.

1451. Acknowledged writings.

1452. Official seals.

1453. Domestic official signatures.

1454. Foreign official signatures.

CHAPTER 2. SECONDARY EVIDENCE OF WRITINGS

ARTICLE 1. Proof of the Content of a Writing

1500 to 1511. Repealed by Stats.1998, c. 100 (S.B.177), 1, operative Jan. 1, 1999.

1520. Content of writing; proof.

1521. Secondary evidence rule.

1522. Additional grounds for exclusion of secondary evidence.

1523. Oral testimony of the content of a writing; admissibility.

ARTICLE 2. OFFICIAL WRITINGS AND RECORDED WRITINGS

1530. Copy of writing in official custody.

1531. Certification of copy for evidence.

1532. Official record of recorded writing.

ARTICLE 3. PHOTOGRAPHIC COPIES OF WRITINGS

1550. Photographic copies made as business records.

1550.1. Admissibility of reproductions of files, records, writings, photographs, and fingerprints.

1551. Photographic copies where original destroyed or lost.

1552. Printed representation of computer information or computer programs.

1553. Printed representation of images stored on a video or digital medium.

ARTICLE 4. PRODUCTION OF BUSINESS RECORDS

1560. Compliance with subpoena duces tecum for business records.

1561. Affidavit accompanying records.

1562. Admissibility of affidavit and copy of records.

1563. One witness and mileage fee.

1564. Personal attendance of custodian and production of original records.

1565. Service of more than one subpoena duces tecum.

1566. Applicability of article.

1567. Employee income and benefit information; forms completed by employer; support modification or termination proceedings.

CHAPTER 3. OFFICIAL WRITINGS AFFECTING PROPERTY

1600. Record of document affecting property interest.

1601. Proof of content of lost official record affecting property.

1602. Repealed by Stats.1967, c. 650, p. 2008, 10.

1603. Deed by officer in pursuance of court process.

1604. Certificate of purchase or of location of lands.

1605. Authenticated Spanish title records.

EVIDENCE CODE TABLE

SECTIONS AFFECTED BY 2010-2011 LEGISLATION

Sections 795, 1010, 1014, 1157, 11390.

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DIVISION 1. PRELIMINARY PROVISIONS AND CONSTRUCTION

§ 1. Short title

This code shall be known as the Evidence Code.

§ 2. Common law rule construing code abrogated

The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. This code establishes the law of this state respecting the subject to which it relates, and its provisions are to be liberally construed with a view to effecting its objects and promoting justice.

§ 3. Severability

If any provision or clause of this code or application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the code which can be given effect without the invalid provision or application, and to this end the provisions of this code are declared to be severable.

LAW REVISION COMMISSION COMMENT

Section 3 is the same as Section 1108 of the Commercial Code. See also, e.g., Vehicle Code § 5. This general "severability" provision permits the repeal of comparable provisions applicable to specific sections formerly compiled in the Code of Civil Procedure that are now compiled in the Evidence Code and makes it unnecessary to include similar provisions in future amendments to this code. See Code Civ.Proc. § 1928.4 (superseded by the Evidence Code). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 4. Construction of code

Unless the provision or context otherwise requires, these preliminary provisions and rules of construction shall govern the construction of this code.

§ 5. Effect of headings

Division, chapter, article, and section headings do not in any manner affect the scope, meaning, or intent of the provisions of this code.

§ 6. References to statutes

Whenever any reference is made to any portion of this code or of any other statute, such reference shall apply to all amendments and additions heretofore or hereafter made.

§ 7. "Division," "chapter," "article," "section," "subdivision," and "paragraph"

Unless otherwise expressly stated:

(a) "Division" means a division of this code.

(b) "Chapter" means a chapter of the division in which that term occurs.

(c) "Article" means an article of the chapter in which that term occurs.

(d) "Section" means a section of this code.

(e) "Subdivision" means a subdivision of the section in which that term occurs.

(f) "Paragraph" means a paragraph of the subdivision in which that term occurs.

§ 8. Construction of tenses

The present tense includes the past and future tenses; and the future, the present.

§ 9. Construction of genders

The masculine gender includes the feminine and neuter.

§ 10. Construction of singular and plural

The singular number includes the plural; and the plural, the singular.

§ 11. "Shall" and "may"

"Shall" is mandatory and "may" is permissive.

§ 12. Code becomes operative January 1, 1967; effect on pending proceedings

(a) This code shall become operative on January 1, 1967, and shall govern proceedings in actions brought on or after that date and, except as provided in subdivision (b), further proceedings in actions pending on that date.

(b) Subject to subdivision (c), a trial commenced before January 1, 1967, shall not be governed by this code. For the purpose of this subdivision:

(1) A trial is commenced when the first witness is sworn or the first exhibit is admitted into evidence and is terminated when the issue upon which such evidence is received is submitted to the trier of fact. A new trial, or a separate trial of a different issue, commenced on or after January 1, 1967, shall be governed by this code.

(2) If an appeal is taken from a ruling made at a trial commenced before January 1, 1967, the appellate court shall apply the law applicable at the time of the commencement of the trial.

(c) The provisions of Division 8 (commencing with Section 900) relating to privileges shall govern any claim of privilege made after December 31, 1966.

LEGISLATIVE COMMITTEE COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

The delayed operative date provides time for California judges and attorneys to become familiar with the code before it goes into effect.

Subdivision (a) makes it clear that the Evidence Code governs all trials commenced after December 31, 1966.

Under subdivision (b), a trial that has actually commenced prior to the operative date of the code will continue to be governed by the rules of evidence (except privileges) applicable at the commencement of the trial. Thus, if the trial court makes a ruling on the admission of evidence in a trial commenced prior to January 1, 1967, such ruling (even when it is made after January 1, 1967) is not affected by the enactment of the Evidence Code; if an appeal is taken from the ruling, Section 12 requires the appellate court to apply the law applicable at the commencement of the trial. On the other hand, any ruling made by the trial court on the admission of evidence in a trial commenced after December 31, 1966, is governed by the Evidence Code, even if a previous trial in the same action was commenced prior to that date.

A hearing on a motion or a similar proceeding is to be treated the same as a trial for the purpose of applying the rules stated in subdivision (b). See subdivision (b)(1).

Under subdivision (c), all claims of privilege made after December 31, 1966, are governed by the Evidence Code in order that there might be no delay in providing protection to the important relationships and interests that are protected by the Privileges Division.

DIVISION 2. WORDS AND PHRASES DEFINED

§ 100. Application of definitions

Unless the provision or context otherwise requires, these definitions govern the construction of this code.

§ 105. "Action"

"Action" includes a civil action and a criminal action.

LAW REVISION COMMISSION COMMENT

Defining the word "action" to include both a civil action or proceeding and a criminal action or proceeding eliminates the necessity of repeating "civil action and criminal action" in numerous code sections. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 110. "Burden of producing evidence"

"Burden of producing evidence" means the obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

The phrases defined in Sections 110 and 115 provide a convenient means for distinguishing between the burden of proving a fact and the burden of going forward with the evidence. They recognize a distinction that is well established in California. Witkin, California Evidence §§ 53–60 (1958). The practical effect of the distinction is discussed in the Comments to Division 5 (commencing with Section 500), especially in the Comments to Sections 500 and 550.

§ 115. "Burden of proof"

"Burden of proof" means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court. The burden of proof may require a party to raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt.

Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

See the Comment to Section 110.

After stating the general definition of "burden of proof," the first paragraph of Section 115 gives examples of specific burdens that may be imposed by statutory or decisional law. The list of examples is not exclusive, and in some cases the law may prescribe some other burden of proof. For example, under Penal Code Section 872, the prosecution's burden of proof at a preliminary hearing is to establish "sufficient cause"—i.e., a "strong suspicion"—of the accused's guilt. Garabedian v. Superior Court, 59 Cal.2d 124, 28 Cal.Rptr. 318, 378 P.2d 590 (1963); Rogers v. Superior Court, 46 Cal.2d 3, 291 P.2d 929 (1955).

The second paragraph of Section 115 makes it clear that "burden of proof" refers to the burden of proving the fact in question by a preponderance of the evidence unless a heavier or lesser burden of proof is specifically required in a particular case by constitutional, statutory, or decisional law. See the definition of "law" in Evidence Code § 160.

§ 120. "Civil action"

"Civil action" includes civil proceedings.

LAW REVISION COMMISSION COMMENT

Defining "civil action" to include civil proceedings eliminates the necessity of repeating "civil action or proceeding" in numerous code sections, and, together with the definition of "criminal action" in Section 130, it assures the applicability of the Evidence Code to all actions and proceedings. See Evidence Code § 300. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 125. "Conduct"

"Conduct" includes all active and passive behavior, both verbal and nonverbal.

§ 130. "Criminal action"

"Criminal action" includes criminal proceedings.

§ 135. "Declarant"

"Declarant" is a person who makes a statement.

LAW REVISION COMMISSION COMMENT

Ordinarily, the word "declarant" is used in the Evidence Code to refer to a person who makes a hearsay statement as distinguished from the witness who testifies to the content of the statement. See Evidence Code § 1200 and the Comment thereto. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 140. "Evidence"

"Evidence" means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.

LAW REVISION COMMISSION COMMENT

"Evidence" is defined broadly to include the testimony of witnesses, tangible objects, sights (such as a jury view or the appearance of a person exhibited to a jury), sounds (such as the sound of a voice demonstrated for a jury), and any other thing that may be presented as a basis of proof. The definition includes anything offered in evidence whether or not it is technically inadmissible and whether or not it is received. For example, Division 10 (commencing with Section 1200) uses "evidence" to refer to hearsay which may be excluded as inadmissible but which may be admitted if no proper objection is made. Thus, when inadmissible hearsay or opinion testimony is admitted without objection, this definition makes it clear that it constitutes evidence that may be considered by the trier of fact.

Section 140 is a better statement of existing law than Code of Civil Procedure Section 1823, which is superseded by Section 140. Although Section 1823 by its terms restricts "judicial evidence" to that "sanctioned by law," the general principle is well established that matter which is technically inadmissible under an exclusionary rule is nonetheless evidence and may be considered in support of a judgment if it is offered and received in evidence without proper objection or motion to strike. E.g., People v. Alexander, 212 Cal.App.2d 84, 98, 27 Cal.Rptr. 720, 727 (1963) ("illustrations of this principle are numerous and cover a wide range of evidentiary topics such as incompetent hearsay, secondary evidence violating the best evidence rule, inadmissible opinions, lack of foundation, incompetent, privileged or unqualified witnesses, and violations of the parol evidence rule"). See Witkin, California Evidence §§ 723–724 (1958).

Under this definition, a presumption is not evidence. See also Evidence Code § 600 and the Comment thereto. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 145. "The hearing"

"The hearing" means the hearing at which a question under this code arises, and not some earlier or later hearing.

LAW REVISION COMMISSION COMMENT

"The hearing" is defined to mean the hearing at which the particular question under the Evidence Code arises, and, unless a particular provision or its context otherwise indicates, not some earlier or later hearing. This definition is much broader than would be a reference to the trial itself; the definition includes, for example, preliminary hearings and post-trial proceedings. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 150. "Hearsay evidence"

"Hearsay evidence" is defined in Section 1200.

LAW REVISION COMMISSION COMMENT

Because of its special significance to Division 10, the substantive definition of "hearsay evidence" is contained in Section 1200. See the Comment to Section 1200. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 160. "Law"

"Law" includes constitutional, statutory, and decisional law.

LAW REVISION COMMISSION COMMENT

This definition makes it clear that a reference to "law" includes the law established by judicial decisions as well as by constitutional and statutory provisions. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 165. "Oath"

"Oath" includes affirmation or declaration under penalty of perjury.

§ 170. "Perceive"

"Perceive" means to acquire knowledge through one's senses.

§ 175. "Person"

"Person" includes a natural person, firm, association, organization, partnership, business trust, corporation, limited liability company, or public entity.

§ 177. "Dependent person"

"Dependent person" means any person who has a physical or mental impairment that substantially restricts his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have significantly diminished because of age. "Dependent person" includes any person who is admitted as an inpatient to a 24–hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.

§ 180. "Personal property"

"Personal property" includes money, goods, chattels, things in action, and evidences of debt.

§ 185. "Property"

"Property" includes both real and personal property.

§ 190. "Proof"

"Proof" is the establishment by evidence of a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.

LAW REVISION COMMISSION COMMENT

This definition is more accurate than the definition of "proof" in Code of Civil Procedure Section 1824, which is superseded by Section 190. The disjunctive reference to "the trier of fact or the court" is needed because, even when the jury is the trier of fact, the court is required to determine preliminary questions of fact on the basis of proof. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 195. "Public employee"

"Public employee" means an officer, agent, or employee of a public entity.

LAW REVISION COMMISSION COMMENT

This definition specifically includes public officers and agents, thereby eliminating any distinction between employees and officers and making it unnecessary to repeat the phrase "officer, agent, or employee" in numerous code sections. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 200. "Public entity"

"Public entity" includes a nation, state, county, city and county, city, district, public authority, public agency, or any other political subdivision or public corporation, whether foreign or domestic.

LAW REVISION COMMISSION COMMENT

The broad definition of "public entity" includes every form of public authority, both foreign and domestic. Occasionally, "public entity" is used in the Evidence Code with limiting language to refer specifically to entities within this State or the United States. E.g., Evidence Code § 452(b). Cf. Evidence Code § 452(f). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 205. "Real property"

"Real property" includes lands, tenements, and hereditaments.

§ 210. "Relevant evidence"

"Relevant evidence" means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.

LAW REVISION COMMISSION COMMENT

This definition restates existing law. E.g., Larson v. Solbakken, 221 Cal.App.2d 410, 419, 34 Cal.Rptr. 450, 455 (1963); People v. Lint, 182 Cal.App.2d 402, 415, 6 Cal.Rptr. 95, 102–103 (1960). Thus, under Section 210, "relevant evidence" includes not only evidence of the ultimate facts actually in dispute but also evidence of other facts from which such ultimate facts may be presumed or inferred. This retains existing law as found in subdivisions 1 and 15 of Code of Civil Procedure Section 1870, which are superseded by the Evidence Code. In addition, Section 210 makes it clear that evidence relating to the credibility of witnesses and hearsay declarants is "relevant evidence." This restates existing law. See Code Civ.Proc. §§ 1868, 1870(16) (credibility of witnesses), which are superseded by the Evidence Code, and Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article VIII. Hearsay Evidence), 6 Cal.Law Revision Comm'n, Rep., Rec. & Studies Appendix at 339–340, 569–575 (1964) (credibility of hearsay declarants). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 220. "State"

"State" means the State of California, unless applied to the different parts of the United States. In the latter case, it includes any state, district, commonwealth, territory, or insular possession of the United States.

§ 225. "Statement"

"Statement" means (a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.

§ 230. "Statute"

"Statute" includes a treaty and a constitutional provision.

LAW REVISION COMMISSION COMMENT

In the Evidence Code, "statute" includes a constitutional provision. Thus, for example, when a particular section in subject to any exceptions "otherwise provided by statute," exceptions provided by the Constitution also are applicable. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 235. "Trier of fact"

"Trier of fact" includes (a) the jury and (b) the court when the court is trying an issue of fact other than one relating to the admissibility of evidence.

LAW REVISION COMMISSION COMMENT

"Trier of fact" is defined to include not only the jury but also the court when it is trying an issue of fact without a jury. The definition is not exclusive; a referee, court commissioner, or other officer conducting proceedings governed by the Evidence Code may be a trier of fact. See Evidence Code § 300. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 240. "Unavailable as a witness"

(a) Except as otherwise provided in subdivision (b), "unavailable as a witness" means that the declarant is any of the following:

(1) Exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her statement is relevant.

(2) Disqualified from testifying to the matter.

(3) Dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity.

(4) Absent from the hearing and the court is unable to compel his or her attendance by its process.

(5) Absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process.

(6) Persistent in refusing to testify concerning the subject matter of the declarant's statement despite having been found in contempt for refusal to testify.

(b) A declarant is not unavailable as a witness if the exemption, preclusion, disqualification, death, inability, or absence of the declarant was brought about by the procurement or wrongdoing of the proponent of his or her statement for the purpose of preventing the declarant from attending or testifying.

(c) Expert testimony which establishes that physical or mental trauma resulting from an alleged crime has caused harm to a witness of sufficient severity that the witness is physically unable to testify or is unable to testify without suffering substantial trauma may constitute a sufficient showing of unavailability pursuant to paragraph (3) of subdivision (a). As used in this section, the term "expert" means a physician and surgeon, including a psychiatrist, or any person described by subdivision (b), (c), or (e) of Section 1010.

The introduction of evidence to establish the unavailability of a witness under this subdivision shall not be deemed procurement of unavailability, in absence of proof to the contrary.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Usually, the phrase "unavailable as a witness" is used in the Evidence Code to state the condition that must be met whenever the admissibility of hearsay evidence is dependent upon the declarant's present unavailability to testify. See, e.g., Evidence Code §§ 1230, 1251, 1291, 1292, 1310, 1311, 1323. See also Code Civ.Proc. § 2016(d)(3) and Penal Code §§ 1345 and 1362, relating to depositions.

"Unavailable as a witness" includes, in addition to cases where the declarant is physically unavailable (i.e., dead, insane, or beyond the reach of the court's process), situations in which the declarant is legally unavailable (i.e., prevented from testifying by a claim of privilege or disqualified from testifying). Of course, if the declaration made out of court is itself privileged, the fact that the declarant is unavailable to testify at the hearing on the ground of privilege does not make the declaration admissible. The exceptions to the hearsay rule that are set forth in Division 10 (commencing with Section 1200) of the Evidence Code do not declare that the evidence described is necessarily admissible. They merely declare that such evidence is not inadmissible under the hearsay rule. If there is some other rule of law—such as privilege—which makes the evidence inadmissible, the court is not authorized to admit the evidence merely because it falls within an exception to the hearsay rule. Accordingly, the hearsay exceptions permit the introduction of evidence where the declarant is unavailable because of privilege only if the declaration itself is not privileged or is not inadmissible for some other reason.

Subdivision (b) is designed to establish safeguards against sharp practices and, in the words of the Commissioners on Uniform State Laws, to assure "that unavailability is honest and not planned in order to gain an advantage." Uniform Rules of Evidence, Rule 62 Comment. Under this subdivision, a party may not arrange a declarant's disappearance in order to use the declarant's out-of-court statement. Moreover, if the out-of-court statement is that of the party himself, he may not create "unavailability" under this section by invoking a privilege not to testify.

Section 240 substitutes a uniform standard for the varying standards of unavailability provided by the superseded Code of Civil Procedure sections providing hearsay exceptions. E.g., Code Civ.Proc. § 1870(4), (8). The conditions constituting unavailability under these superseded sections vary from exception to exception without apparent reason. Under some of these sections, the evidence is admissible if the declarant is dead; under others, the evidence is admissible if the declarant is dead or insane; under still others, the evidence is admissible if the declarant is absent from the jurisdiction. Despite the express language of these superseded sections, Section 24 may, to a considerable extent, restate existing law. Compare People v. Spriggs, 60 Cal.2d 868, 875, 36 Cal.Rptr. 841, 845, 389 P.2d 377, 381 (1964) (generally consistent with Section 240), with the older cases, some but not all of which are inconsistent with the Spriggs case and with Section 240. See the cases cited in Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article VIII. Hearsay Evidence), 6 Cal.Law Revision Comm'n, Rep., Rec. & Studies Appendix at 411 note 7 (1964).

§ 250. "Writing"

"Writing" means handwriting, typewriting, printing, photostating, photographing, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof.

LAW REVISION COMMISSION COMMENT

"Writing" is defined very broadly to include all forms of tangible expression, including pictures and sound recordings. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 255. "Original"

"Original" means the writing itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original."

§ 260. "Duplicate"

A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by other equivalent technique which accurately reproduces the original.

DIVISION 3. GENERAL PROVISIONS

CHAPTER 1. APPLICABILITY OF CODE

§ 300. Applicability of code

Except as otherwise provided by statute, this code applies in every action before the Supreme Court or a court of appeal, superior court, municipal court, or, including proceedings in such actions conducted by a referee, court commissioner, or similar officer, but does not apply in grand jury proceedings.

LAW REVISION COMMISSION COMMENT

Section 300 makes the Evidence Code applicable to all proceedings conducted by California courts except those court proceedings to which it is made inapplicable by statute. The provisions of the code do not apply in administrative proceedings, legislative hearings, or any other proceedings unless some statute so provides or the agency concerned chooses to apply them.

Various code sections—in the Evidence Code as well as in other codes—make the provisions of the Evidence Code applicable to a certain extent in proceedings other than court proceedings. E.g., Govt.Code § 11513 (a finding in a proceeding conducted under the Administrative Procedure Act may not be based on hearsay evidence unless the evidence would be admissible over objection in a civil action); Penal Code § 939.6 (a grand jury, in investigating a charge, may receive only evidence admissible over objection in a criminal action); Evidence Code § 910 (provisions of the Evidence Code relating to privileges are applicable in all proceedings of every kind in which testimony can be compelled to be given); and Evidence Code § 1566 (Sections 1560–1565 are applicable in nonjudicial proceedings).

Section 300 does not affect any other statute relaxing rules of evidence for specified purposes. See, e.g., Code Civ.Proc. § 117g (judge of small claims court may make informal investigation either in or out of court), § 1768 (hearing of conciliation proceeding to be conducted informally), § 2016(b) (inadmissibility of testimony at trial is not ground for objection to testimony sought from a deponent, provided that such testimony is reasonably calculated to lead to the discovery of admissible evidence); Penal Code § 1203 (judge must consider probation officer's investigative report on question of probation); Welf. & Inst. Code § 706 (juvenile court must consider probation officer's social study in determining disposition to be made of ward or dependent child). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

1998 Amendment

Section 300 is amended to reflect elimination of the justice court. Cal. Const. art. VI, §§ 1, 51(b).

CHAPTER 2. PROVINCE OF COURT AND JURY

§ 310. Questions of law for court

(a) All questions of law (including but not limited to questions concerning the construction of statutes and other writings, the admissibility of evidence, and other rules of evidence) are to be decided by the court. Determination of issues of fact preliminary to the admission of evidence are to be decided by the court as provided in Article 2 (commencing with Section 400) of Chapter 4.

(b) Determination of the law of an organization of nations or of the law of a foreign nation or a public entity in a foreign nation is a question of law to be determined in the manner provided in Division 4 (commencing with Section 450).

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Subdivision (a) of Section 310 restates the substance of and supersedes the first sentence of Section 2102 of the Code of Civil Procedure. Subdivision (b) restates the existing rule that foreign law is not a question of fact but is a question of law to be decided by the court. See Gallegos v. Union–Tribune Publishing Co., 195 Cal.App.2d 791, 16 Cal.Rptr. 185 (1961).

Section 310 refers specifically to the law of organizations of nations in order to make certain that the law of supranational organizations that have lawmaking authority—such as the European Economic Community—is to be determined as other foreign law is determined. This probably does not change the law of California, for it seems likely that the law of a supranational organization would be regarded as the law in the member nations by virtue of the treaty arrangements among them. Of course, the Evidence Code does not require California courts to give the force of law to anything that does not have the force of law. The Evidence Code merely prescribes the procedure for determining the existing foreign law.

The judicial notice provisions of the Evidence Code have no effect on which party has the burden of establishing the applicable foreign law under Probate Code Section 259 (relating to the right of nonresident aliens to inherit). The applicable foreign law is, however, to be determined in accordance with the judicial notice provisions of the Evidence Code. Estate of Gogabashvele, 195 Cal.App.2d 503, 16 Cal.Rptr. 77 (1961).

§ 311. Foreign law applicable; law undetermined; procedures

If the law of an organization of nations, a foreign nation or a state other than this state, or a public entity in a foreign nation or a state other than this state, is applicable and such law cannot be determined, the court may, as the ends of justice require, either:

(a) Apply the law of this state if the court can do so consistently with the Constitution of the United States and the Constitution of this state; or

(b) Dismiss the action without prejudice or, in the case of a reviewing court, remand the case to the trial court with directions to dismiss the action without prejudice.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Insofar as it relates to the law of foreign nations, Section 311 restates the substance of and supersedes the last paragraph of Section 1875 of the Code of Civil Procedure. With respect to sister-state law, the result reached under existing California case law is probably the same as under Section 311. See, e.g., Gagnon Co. v. Nevada Desert Inn, 45 Cal.2d 448, 453–454, 289 P.2d 466, 471 (1955) ("Whether such a judgment is a bar ... is controlled by Nevada law.... We find no Nevada statute or case law covering the case we have here.... Under those circumstances we will assume the Nevada law is not out of harmony with ours and thus we look to our law for a solution of the problem.").

The last paragraph of Section 1875, which Section 311 supersedes, applies, "if the court is unable to determine" the applicable foreign law. Instead, Section 311 comes into operation if the applicable out-of-state law "cannot be determined." This revised language emphasizes that every effort should be made by the court to determine the applicable law before the case is otherwise disposed of under Section 311.

The reason why the court cannot determine the applicable foreign or sister-state law may be that the parties have not provided the court with sufficient information to make such determination. In such a case, the court may, of course, grant the parties additional time within which to obtain such information and make it available to the court. If they fail to obtain such information and the court is not satisfied that they made a reasonable effort to do so, the court may dismiss the action without prejudice. On the other hand, where counsel have made a reasonable effort and when all sources of information as to the applicable foreign or sister-state law are exhausted and the court cannot determine it, the court may either apply California law, within constitutional limits, or dismiss the action without prejudice.

§ 312. Jury as trier of fact

Except as otherwise provided by law, where the trial is by jury:

(a) All questions of fact are to be decided by the jury.

(b) Subject to the control of the court, the jury is to determine the effect and value of the evidence addressed to it, including the credibility of witnesses and hearsay declarants.

LAW REVISION COMMISSION COMMENT

Section 312 restates the substance of and supersedes Section 2101 and the first sentence of Section 2061 of the Code of Civil Procedure. The rule stated in Section 312 is subject to such exceptions as are otherwise provided by statutory or decisional law. See, e.g., Evidence Code §§ 310, 311, 457. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

CHAPTER 3. ORDER OF PROOF

§ 320. Power of court to regulate order of proof

Except as otherwise provided by law, the court in its discretion shall regulate the order of proof.

LAW REVISION COMMISSION COMMENT

Section 320 restates the substance of and supersedes the first sentence of Section 2042 of the Code of Civil Procedure. Under Section 320, as under existing law, the trial judge has wide discretion to determine the order of proof. See California Civil Procedure During Trial, Parrish, Order of Proof, 205 (Cal.Cont.Ed.Bar 1960). Of course, the order of proof ordinarily should be as prescribed in Code of Civil Procedure Section 607 or 631.7 (added in this recommendation [Chapter 299, Statutes of 1965])or in Penal Code Sections 1093 and 1094.

Directions of the trial judge which control the order of proof should be distinguished from those which actually exclude evidence. Obviously, it is not permissible, through repeated directions of the order of proof, to prevent a party from presenting relevant evidence on a disputed fact. Foster v. Keating, 120 Cal.App.2d 435, 261 P.2d 529 (1953); California Civil Procedure During Trial, Parrish, Order of Proof, 205, 210 (Cal.Cont.Ed.Bar 1960). See also Murry v. Manley, 170 Cal.App.2d 364, 338 P.2d 976 (1959). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

CHAPTER 4. ADMITTING AND EXCLUDING EVIDENCE

ARTICLE 1. GENERAL PROVISIONS

§ 350. Only relevant evidence admissible

No evidence is admissible except relevant evidence.

LAW REVISION COMMISSION COMMENT

Section 350 restates and supersedes that portion of Code of Civil Procedure Section 1868 requiring the exclusion of irrelevant evidence. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 351. Admissibility of relevant evidence

Except as otherwise provided by statute, all relevant evidence is admissible.

LAW REVISION COMMISSION COMMENT

Section 351 abolishes all limitations on the admissibility of relevant evidence except those that are based on a statute, including a constitutional provision. See Evidence Code § 230. The Evidence Code contains a number of provisions that exclude relevant evidence either for reasons of public policy or because the evidence is too unreliable to be presented to the trier of fact. See, e.g., Evidence Code § 352 (cumulative, unduly prejudicial, etc. evidence), §§ 900–1070 (privileges), §§ 1100–1156 (extrinsic policies), § 1200 (hearsay). Other codes also contain provisions that may in some cases result in the exclusion of relevant evidence. See, e.g., Civil Code §§ 79.06, 79.09, 227; Code Civ.Proc. § 1747; Educ.Code § 14026; Fin.Code § 8754; Fish & Game Code § 7923; Govt.Code §§ 15619, 18573, 18934, 18952, 20134, 31532; Health & Saf.Code §§ 211.5, 410; Ins.Code §§ 735, 855, 10381.5; Labor Code § 6319; Penal Code §§ 290, 938.1, 3046, 3107, 11105; Pub.Res.Code § 3234; Rev. & Tax.Code §§ 16563, 19282–19289; Unempl.Ins.Code §§ 1094, 2111, 2714; Vehicle Code §§ 1808, 16005, 20012–20015, 40803, 40804, 40832, 40833; Water Code § 12516; Welf. & Inst.Code §§ 118, 827. [7 Cal.L.Rev.Comm.Reports 1 (1965)]

§ 351.1. Polygraph examinations; results, opinion of examiner or reference; exclusion

(a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court, unless all parties stipulate to the admission of such results.

(b) Nothing in this section is intended to exclude from evidence statements made during a polygraph examination which are otherwise admissible.

§ 352. Discretion of court to exclude evidence

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

LAW REVISION COMMISSION COMMENT

Section 352 expresses a rule recognized by statute and in several California decisions. Code Civ. Proc. §§ 1868, 2044 (superseded by the Evidence Code); Adkins v. Brett, 184 Cal. 252, 258, 193 Pac. 251, 254 (1920) ("the matter [of excluding prejudicial evidence] is largely one of discretion on the part of the trial judge"); Moody v. Peirano, 4 Cal.App. 411, 418, 88 Pac. 380, 382 (1906) ("a wide discretion is left to the trial judge in determining whether [evidence of a collateral nature] is admissible or not"). [7 Cal.L.Rev.Comm.Reports 1 (1965)]

§ 352.1. Criminal sex acts; victim's address and telephone number

In any criminal proceeding under Section 261, 262, or 264.1, subdivision (d) of Section 286, or subdivision (d) of Section 288a of the Penal Code, or in any criminal proceeding under subdivision (c) of Section 286 or subdivision (c) of Section 288a of the Penal Code in which the defendant is alleged to have compelled the participation of the victim by force, violence, duress, menace, or threat of great bodily harm, the district attorney may, upon written motion with notice to the defendant or the defendant's attorney, if he or she is represented by an attorney, within a reasonable time prior to any hearing, move to exclude from evidence the current address and telephone number of any victim at the hearing.

The court may order that evidence of the victim's current address and telephone number be excluded from any hearings conducted pursuant to the criminal proceeding if the court finds that the probative value of the evidence is outweighed by the creation of substantial danger to the victim.

Nothing in this section shall abridge or limit the defendant's right to discover or investigate the information.

§ 353. Erroneous admission of evidence; effect

A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:

(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and

(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Subdivision (a) of Section 353 codifies the well-settled California rule that a failure to make a timely objection to, or motion to exclude or to strike, inadmissible evidence waives the right to complain of the erroneous admission of evidence. See Witkin, California Evidence §§ 700–702 (1958). Subdivision (a) also codifies the related rule that the objection or motion must specify the ground for objection, a general objection being insufficient. Witkin, California Evidence §§ 703–709 (1958).

Section 353 does not specify the form in which an objection must be made; hence, the use of a continuing objection to a line of questioning would be proper under Section 353 just as it is under existing law. See Witkin, California Evidence § 708 (1958).

Subdivision (b) reiterates the requirement of Section <sfr>41/2<efr> of Article VI of the California Constitution that a judgment may not be reversed, nor may a new trial be granted, because of an error unless the error is prejudicial.

Section 353 is, of course, subject to the constitutional requirement that a judgment must be reversed if an error has resulted in a denial of due process of law. People v. Matteson, 61 Cal.2d 466, 39 Cal.Rptr. 1, 393 P.2d 161 (1964).

§ 354. Erroneous exclusion of evidence; effect

A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that:

(a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means;

(b) The rulings of the court made compliance with subdivision (a) futile; or

(c) The evidence was sought by questions asked during cross-examination or recross-examination.

LAW REVISION COMMISSION COMMENT

Section 354, like Section 353, reiterates the requirement of the California Constitution that a judgment may not be reversed, nor may a new trial be granted, because of an error unless the error is prejudicial. Cal.Const., Art. VI, § 4<sfr>1/2<efr>.

The provisions of Section 354 that require an offer of proof or other disclosure of the evidence improperly excluded reflect existing law. See Witkin, California Evidence § 713 (1958). The exceptions to this requirement that are stated in Section 354 also reflect existing law. Thus, an offer of proof is unnecessary where the judge has limited the issues so that an offer to prove matters related to excluded issues would be futile. Lawless v. Calaway, 24 Cal.2d 81, 91, 147 P.2d 604, 609 (1944). An offer of proof is also unnecessary when an objection is improperly sustained to a question on cross-examination. Tossman v. Newman, 37 Cal.2d 522, 525–526, 233 P.2d 1, 3 (1951) ("no offer of proof is necessary in order to obtain a review of rulings on cross-examination"); People v. Jones, 160 Cal. 358, 117 Pac. 176 (1911). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 355. Limited admissibility

When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.

LAW REVISION COMMISSION COMMENT

Section 355 codifies existing law which requires the court to instruct the jury as to the limited purpose for which evidence may be considered when such evidence is admissible for one purpose and inadmissible for another. See Adkins v. Brett, 184 Cal. 252, 193 Pac. 251 (1920).

Under Section 352, as under existing law, the judge is permitted to exclude such evidence if he deems it so prejudicial that a limiting instruction would not protect a party adequately and the matter in question can be proved sufficiently by other evidence. See discussion in Adkins v. Brett, 184 Cal. 252, 258, 193 Pac. 251, 254 (1920); Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article VI. Extrinsic Policies Affecting Admissibility), 6 Cal.Law Revision Comm'n, Rep., Rec. & Studies 601, 612, 639–640 (1964). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 356. Entire act, declaration, conversation, or writing, to elucidate part offered

Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Section 356 restates the substance of and supersedes Section 1854 of the Code of Civil Procedure.

The rule stated in Section 356, like the superseded statement of the rule in the Code of Civil Procedure, only makes admissible such parts of an act, declaration, conversation, or writing as are relevant to the part thereof previously given in evidence. See, e.g., Witt v. Jackson, 57 Cal.2d 57, 67, 17 Cal.Rptr. 369, 374, 366 P.2d 641, 646 (1961) (the rule "is necessarily subject to the qualification that the court may exclude those portions of the conversation not relevant to the items thereof which have been introduced"). See also Evidence Code § 350.

ARTICLE 2. PRELIMINARY DETERMINATIONS ON ADMISSIBILITY OF EVIDENCE

§ 400. "Preliminary Fact"

As used in this article, "preliminary fact" means a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence. The phrase "the admissibility or inadmissibility of evidence" includes the qualification or disqualification of a person to be a witness and the existence or nonexistence of a privilege.

LAW REVISION COMMISSION COMMENT

"Preliminary fact" is defined to distinguish those facts upon which the admissibility of evidence depends from those facts sought to be proved by that evidence. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 401. "Proffered evidence"

As used in this article, "proffered evidence" means evidence, the admissibility or inadmissibility of which is dependent upon the existence or nonexistence of a preliminary fact.

LAW REVISION COMMISSION COMMENT

"Proffered evidence" is defined to avoid confusion between evidence whose admissibility is in question and evidence offered on the preliminary fact issue. "Proffered evidence" includes such matters as the testimony to be elicited from a witness who is claimed to be disqualified, testimony or tangible evidence claimed to be privileged, and any other evidence to which objection is made. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 402. Procedure for determining foundational and other preliminary facts

(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article.

(b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests.

(c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Under Section 310, the court must decide preliminary questions of fact upon which the admissibility of evidence depends. Section 402 prescribes certain procedures that must be observed by the court when making such preliminary determinations.

Subdivision (a). Subdivision (a) requires the judge to observe the procedures specified in Article 2 (commencing with Section 400) when he is determining disputed factual questions preliminary to the admission or exclusion of evidence. The provisions of Article 2 are designed to distinguish clearly between (1) those situations where the judge must be persuaded of the existence of the preliminary fact upon which admissibility depends and (2) those situations where the judge must admit the proffered evidence merely upon the introduction of evidence sufficient to sustain a finding of the preliminary fact. Under the Evidence Code, as under existing law, the judge determines some preliminary fact questions on the basis of all of the evidence presented to him by both parties, resolving any conflicts in that evidence. Evidence Code § 405. See, e.g., People v. Glab, 13 Cal.App.2d 528, 57 P.2d 588 (1936) (judge considered conflicting evidence and decided that a proposed witness was not married to the defendant and, therefore, was competent to testify). See also Fairbank v. Hughson, 58 Cal. 314 (1881) (error to permit jury to determine whether witness was an expert). On the other hand, the judge does not always resolve conflicts in the evidence submitted on preliminary fact questions; in some cases, the proffered evidence must be admitted if there is evidence sufficient to sustain a finding of the preliminary fact. Evidence Code § 403. See, e.g., Reed v. Clark, 47 Cal. 194, 200 (1873); Verzan v. McGregor, 23 Cal. 339 (1863).

Subdivision (b). Subdivision (b) requires the judge, on request, to determine the admissibility of a confession or admission of a criminal defendant out of the presence and hearing of the jury. Under existing law, whether the preliminary hearing is held out of the presence of the jury is left to the judge's discretion. People v. Gonzales, 24 Cal.2d 870, 151 P.2d 251 (1944); People v. Nelson, 90 Cal.App. 27, 31, 265 Pac. 366, 367 (1928). The existing procedure permits the jury to hear evidence that may be extremely prejudicial. For example, in People v. Black, 73 Cal.App. 13, 238 Pac. 374 (1925), the alleged coercion consisted of threats to send the defendants to New Mexico to be prosecuted for murder. Subdivision (b) prevents this kind of prejudice. Nothing in subdivision (b) precludes a defendant from presenting to the jury evidence attacking the credibility of a confession that is admitted (Evidence Code § 406), and such evidence may include some of the same matters presented to the judge during the preliminary hearing.

Subdivision (c). Subdivision (c) codifies existing law. Wilcox v. Berry, 32 Cal.2d 189, 195 P.2d 414 (1948) (where evidence is properly received, the ground of the court's ruling is immaterial); City & County of San Francisco v. Western Air Lines, Inc., 204 Cal.App.2d 105, 22 Cal.Rptr. 216 (1962) (where evidence is excluded, the ruling will be upheld if any ground exists for the exclusion).

§ 403. Determination of foundational and other preliminary facts where relevancy, personal knowledge, or authenticity is disputed

(a) The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when:

(1) The relevance of the proffered evidence depends on the existence of the preliminary fact;

(2) The preliminary fact is the personal knowledge of a witness concerning the subject matter of his testimony;

(3) The preliminary fact is the authenticity of a writing; or

(4) The proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself.

(b) Subject to Section 702, the court may admit conditionally the proffered evidence under this section, subject to evidence of the preliminary fact being supplied later in the course of the trial.

(c) If the court admits the proffered evidence under this section, the court:

(1) May, and on request shall, instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist.

(2) Shall instruct the jury to disregard the proffered evidence if the court subsequently determines that a jury could not reasonably find that the preliminary fact exists.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

As indicated in the Comment to Section 402, the judge does not determine in all instances whether a preliminary fact exists or does not exist. At times, the judge must admit the proffered evidence if there is evidence sufficient to sustain a finding of the preliminary fact, and the jury must finally decide whether the preliminary fact exists. See, e.g., Verzan v. McGregor, 23 Cal. 339 (1863). Section 403 covers those situations in which the judge is required to admit the proffered evidence upon the introduction of evidence sufficient to sustain a finding of the preliminary fact.

Subdivision (a)

Some writers have attempted to distinguish the kinds of questions to be decided under the standard prescribed in Section 403 from the kinds of questions to be decided under the standard described in Section 405 on the ground that the former questions involve the relevancy of the proffered evidence while the latter questions involve the competency of evidence that is relevant. Maguire & Epstein, Preliminary Questions of Fact in Determining the Admissibility of Evidence, 40 Harv.L.Rev. 392 (1927); Morgan, Functions of Judge and Jury in the Determination of Preliminary Questions of Fact, 43 Harv.L.Rev. 165 (1929). It is difficult, however, to distinguish all preliminary fact questions upon this principle. And eminent legal authorities sometimes differ over whether a particular preliminary fact question is one of relevancy or competency. For example, Wigmore classifies admissions with questions of relevancy (4 Wigmore, Evidence 1 (3d ed. 1940)) while Morgan classifies admissions with questions of competency to be decided under the standard prescribed in Section 405 (Morgan, Basic Problems of Evidence 244 (1957)).

To eliminate uncertainties of classification, subdivision (a) lists the kinds of preliminary fact questions that are to be determined under the standard prescribed in Section 403. And to eliminate any uncertainties that are not resolved by this listing, various Evidence Code sections state specifically that admissibility depends on "evidence sufficient to sustain a finding" of certain facts. See, e.g., Evidence Code §§ 1222, 1223, 1400.

The preliminary fact questions listed in subdivision (a), or identified elsewhere as matters to be determined under the Section 403 standard, are not finally decided by the judge because they have been traditionally regarded as jury questions. The questions involve the credibility of testimony or the probative value of evidence that is admitted on the ultimate issues. It is the jury's function to determine the effect and value of the evidence addressed to it. Evidence Code § 312. Hence, the judge's function on questions of this sort is merely to determine whether there is evidence sufficient to permit a jury to decide the question. The "question of admissibility ... merges imperceptibly into the weight of the evidence, if admitted." Di Carlo v. United States, 6 F.2d 364, 367 (2d Cir.1925). If the judge finally determined the existence or nonexistence of the preliminary fact, he would deprive a party of a jury decision on a question that the party has a right to have decided by the jury.

For example, if the question of A's title to land is in issue, A may seek to prove his title by a deed from former owner O. Section 1401 requires that the deed be authenticated, and the judge, under Section 403, must rule on the question of authentication. If A introduces evidence sufficient to sustain a finding of the genuineness of the deed, the judge is required to admit it. If the rule were otherwise and the judge, on the basis of the adverse party's evidence, were permitted to decide that the deed was spurious and not admissible, the judge would be resolving the basic factual issue in the case and A would be deprived of a jury finding on the issue, even though he is entitled to a jury decision and even though he has introduced evidence sufficient to warrant a jury finding in his favor.

Illustrative of the preliminary fact questions that should be decided under Section 403 are the following:

Section 350—Relevancy. Under existing law, as under Section 403, if the relevancy of proffered evidence depends on the existence of some preliminary fact, the evidence is admissible if there is evidence sufficient to warrant a jury finding of the preliminary fact. Reed v. Clark, 47 Cal. 194, 200 (1873). Thus, for example, if P sues D upon an alleged agreement, evidence of negotiations with A is inadmissible because irrelevant unless A is shown to be D's agent; but the evidence of the negotiations with A is admissible if there is evidence sufficient to sustain a finding of the agency. Brown v. Spencer, 163 Cal. 589, 126 Pac. 493 (1912). The same rule is applicable when a person is charged with criminal responsibility for the acts of another because they are conspirators. See discussion in People v. Steccone, 36 Cal.2d 234, 238, 223 P.2d 17, 19 (1950).

Section 702—Requirement of personal knowledge. Evidence sufficient to sustain a finding of a witness' personal knowledge seems to be sufficient under the existing California practice. See, e.g., People v. Avery, 35 Cal.2d 487, 492, 218 P.2d 527, 530 (1950) ("Bolton testified that he observed the incident about which he testified. His testimony, therefore, was not incompetent under section 1845 of the Code of Civil Procedure."); People v. McCarthy, 14 Cal.App. 148, 151, 111 Pac. 274, 275 (1910). See also Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article IV. Witnesses), 6 Cal.Law Revision Comm'n, Rep., Rec. & Studies 701, 711–713 (1964).

Section 788—Conviction of a crime when offered to attack credibility. In this situation, the preliminary fact issue to be decided under Section 403 is whether the witness is actually the person who was convicted. This involves the relevancy of the evidence (since, obviously, the conviction of another does not affect the witness' credibility) and should be a question to be resolved by the jury. The judge should not be able to decide finally that it was the witness who was convicted and, thus, to prevent a contest on that issue before the jury. The existing law is uncertain in this regard; however, it seems likely that any evidence sufficient to identify the witness as the person convicted is sufficient to warrant admission of the conviction. See People v. Theodore, 121 Cal.App.2d 17, 28, 262 P.2d 630, 637 (1953) (relying on presumption of identity of person from identity of name).

Section 800—Requirement that lay opinion be based on personal perception. The requirement specified in Section 800 is merely a specific application of the personal knowledge requirement in Section 702. See the discussion of Section 702 in this Comment, supra.

Sections 1200–1341—Identity of hearsay declarant. For most hearsay evidence, admissibility depends upon two preliminary determinations: (1) Did the declarant actually make the statement as claimed by the proponent of the evidence? (2) Does the statement meet certain standards of trustworthiness required by some exception to the hearsay rule?

The first determination involves the relevancy of the evidence. For example, if the issue is the state of mind of X, a person's statement as to his state of mind has no tendency to prove X's state of mind unless the declarant was X. Relevancy depends on the fact that X made the statement. Accordingly, if otherwise competent, a hearsay statement is admitted upon evidence sufficient to sustain a finding that the claimed declarant made the statement.

The second determination involves the competency of the evidence. Unless the evidence meets the requisite standards of an exception to the hearsay rule, it must be kept from the trier of fact despite its relevancy either because it is too unreliable or because public policy requires its suppression. For example, if an admission was in fact made by a defendant to a criminal action, the admission is relevant. But public policy requires that the admission be held inadmissible if it was not given voluntarily.

The admissibility of some hearsay declarations is dependent solely upon the determination that a particular declarant made the statement. Some of these exceptions to the hearsay rule—such as inconsistent statements of trial witnesses and admissions—are mentioned specifically below. Since the only preliminary fact to be determined in regard to these declarations involves the relevancy of the evidence, they should be admitted upon the introduction of evidence sufficient to sustain a finding of the preliminary fact.

When the admissibility of hearsay depends both upon a determination that a particular declarant made the statement and upon a determination that the requisite standards of a hearsay exception have been met, the former determination is to be made upon evidence sufficient to sustain a finding of the preliminary fact. Paragraph (4) is included in subdivision (a) to make this clear.

Section 1220—Admissions of a party. The only preliminary fact that is subject to dispute is the identity of the declarant. Under Section 403(a)(4), an admission is admissible upon the introduction of evidence sufficient to sustain a finding that the party made the statement. Existing law appears to be in accord. Eastman v. Means, 75 Cal.App. 537, 242 Pac. 1089 (1925).

An admission is not admissible in a criminal case unless it was given voluntarily. The voluntariness of an admission by a criminal defendant is determined under Section 405, not Section 403.

Sections 1221, 1222—Authorized and adoptive admissions. Under existing law, both authorized admissions (by an agent of a party) and adoptive admissions are admitted upon the introduction of evidence sufficient to sustain a finding of the foundational fact. Sample v. Round Mountain Citrus Farm Co., 29 Cal.App. 547, 156 Pac. 983 (1916) (authorized admission); Southers v. Savage, 191 Cal.App.2d 100, 12 Cal.Rptr. 470 (1961) (adoptive admission).

Section 1223—Admission of co-conspirator. The admission of a co-conspirator is another form of an authorized admission. Hence, the proffered evidence is admissible upon the introduction of evidence sufficient to sustain a finding of the conspiracy. Existing law is in accord. People v. Robinson, 43 Cal.2d 132, 137, 271 P.2d 865, 868 (1954).

Sections 1224–1227—Admission of third person whose liability, breach of duty, or right is in issue. The only preliminary fact subject to dispute is the identity of the declarant; and the preliminary showing required in regard to this class of admissions is the same as if the declarant were being sued directly. Any evidence of the making of the statement by the claimed declarant is sufficient to warrant its admission. Existing law is in accord. See Langley v. Zurich General Acc. & Liab. Ins. Co., 219 Cal. 101, 25 P.2d 418 (1933). Although Sections 1226 and 1227 are new to California law, the same principles should be applicable.

Sections 1235, 1236—Previous statements of witnesses. Prior inconsistent statements and prior consistent statements made before bias or other improper motive arose are dealt with in Sections 1235 and 1236. In each case, the evidence is relevant and probative if the witnesses to the statements are credible. The credibility of the witnesses testifying to these statements should be decided finally by the jury. Moreover, the only preliminary fact subject to dispute insofar as alleged inconsistent statements are concerned is the identity of the declarant. Hence, evidence is admitted under these sections upon the introduction of evidence sufficient to sustain a finding of the preliminary fact. The existing practice seems to be consistent with Section 403. See Schneider v. Market Street Ry., 134 Cal. 482, 492, 66 Pac. 734, 738 (1901) ("Whether the [prior inconsistent] statements made to Glassman and Hubbell were made by Meley, or by some other man, was a question for the jury. Both witnesses testified that they were made by him."); People v. Neely, 163 Cal.App.2d 289, 312, 329 P.2d 357, 371 (1958) (two prior consistent statements held admissible because the "jury could properly infer ... the motive to fabricate did arise after the making of the two statements").

Sections 1400–1402—Authentication of writings. Under existing law, an otherwise competent writing is admissible upon the introduction of evidence sufficient to sustain a finding of the authenticity of the writing. Verzan v. McGregor, 23 Cal. 339 (1863). Section 403(a)(3) retains this existing law.

Sections 1410–1421—Means of authenticating writings. Sections 1410 through 1421 merely state several ways in which the requirements of Sections 1400 through 1402 may be met. Hence, to the extent that Sections 1410 through 1421 specify facts that may be shown to authenticate writings, the same principles apply: In each case, the judge must decide whether the evidence offered is sufficient to sustain a finding of the authenticity of the proffered writing and admit the writing if there is such evidence. Care should be exercised, however, to distinguish those cases where the disputed preliminary fact is the authenticity of an exemplar with which the proffered writing is to be compared (Evidence Code §§ 1417–1419) or the qualification of a witness to give an opinion concerning the authenticity of a writing (Evidence Code §§ 1416, 1418); the judge is required to determine such questions under the provisions of Section 405.

Subdivision (b)

Subdivision (b) restates the apparent meaning of Section 1834 of the Code of Civil Procedure. Under this subdivision, the judge may receive evidence that is conditionally admissible under Section 403, subject to the presentation of evidence of the preliminary fact later in the course of the trial. See Brea v. McGlashan, 3 Cal.App.2d 454, 465, 39 P.2d 877, 882 (1934).

Subdivision (c)

Subdivision (c) relates to the instructions to be given the jury when evidence is admitted whose admissibility depends on the existence of a preliminary fact determined under Section 403. When such evidence is admitted, the jury is required to make the ultimate determination of the existence of the preliminary fact. Unless the jury is persuaded that the preliminary fact exists, it is not permitted to consider the evidence.

For example, if P offers evidence of his negotiations with A in his contract action against D, the judge must admit the evidence if there is other evidence sufficient to sustain a finding that A was D's agent. If the jury is not persuaded that A was in fact D's agent, then it is not permitted to consider the evidence of the negotiations with A in determining D's liability.

Frequently, the jury's duty to disregard conditionally admissible evidence when it is not persuaded of the existence of the preliminary fact on which relevancy is conditioned is so clear that an instruction to this effect is unnecessary. For example, if the disputed preliminary fact is the authenticity of a deed, it hardly seems necessary to instruct the jury to disregard the deed if it should find that the deed is not genuine. No rational jury could find the deed to be spurious and, yet, to be still effective to transfer title from the purported grantor.

At times, however, it is not quite so clear that conditionally admissible evidence should be disregarded unless the preliminary fact is found to exist. In such cases, the jury should be appropriately instructed. For example, the theory upon which agent's and co-conspirator's statements are admissible is that the party is vicariously responsible for the acts and statements of agents and co-conspirators within the scope of the agency or conspiracy. Yet, it is not always clear that statements made by a purported agent or co-conspirator should be disregarded if not made in furtherance of the agency or conspiracy. Hence, the jury should be instructed to disregard such statements unless it is persuaded that the statements were made within the scope of the agency or conspiracy. People v. Geiger, 49 Cal. 643, 649 (1875); People v. Talbott, 65 Cal.App.2d 654, 663, 151 P.2d 317, 322 (1944). Subdivision (c), therefore, permits the judge in any case to instruct the jury to disregard conditionally admissible evidence unless it is persuaded of the existence of the preliminary fact; further, subdivision (c) requires the judge to give such an instruction whenever he is requested by a party to do so.

§ 404. Determination of whether proffered evidence is incriminatory

Whenever the proffered evidence is claimed to be privileged under Section 940, the person claiming the privilege has the burden of showing that the proffered evidence might tend to incriminate him; and the proffered evidence is inadmissible unless it clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege.

LAW REVISION COMMISSION COMMENT

Section 404 provides a special procedure to be followed by the judge when an objection is made in reliance upon the privilege against self-incrimination. Under Section 404, the objecting party has the burden of showing that the testimony sought might incriminate him. However, the party is not required to produce evidence as such. In addition to considering evidence, the judge must consider the matters disclosed in argument, the implications of the question, the setting in which it is asked, the applicable statute of limitations, and all other relevant factors. See Cohen v. Superior Court, 173 Cal.App.2d 61, 70, 343 P.2d 286, 291 (1959). Nonetheless, the burden is on the objector to present to the judge information of this sort sufficient to indicate that the proffered evidence might incriminate him. If he presents information of this sort, Section 404 requires the judge to sustain the claim of privilege unless it clearly appears that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege.

Section 404 is consistent with existing law: The party claiming the privilege "has the burden of showing that the testimony which was being required might be used in a prosecution to help establish his guilt"; the court may require testimony to be given only if it clearly appears to the court that the claim of privilege is mistaken and that any answer " 'cannot possibly' " have a tendency to incriminate the witness. Cohen v. Superior Court, 173 Cal.App.2d 61, 68, 70–72, 343 P.2d 286, 290, 291–292 (1959) (italics in original). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 405. Determination of foundational and other preliminary facts in other cases

With respect to preliminary fact determinations not governed by Section 403 or 404:

(a) When the existence of a preliminary fact is disputed, the court shall indicate which party has the burden of producing evidence and the burden of proof on the issue as implied by the rule of law under which the question arises. The court shall determine the existence or nonexistence of the preliminary fact and shall admit or exclude the proffered evidence as required by the rule of law under which the question arises.

(b) If a preliminary fact is also a fact in issue in the action:

(1) The jury shall not be informed of the court's determination as to the existence or nonexistence of the preliminary fact.

(2) If the proffered evidence is admitted, the jury shall not be instructed to disregard the evidence if its determination of the fact differs from the court's determination of the preliminary fact.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Section 405 requires the judge to determine the existence or nonexistence of disputed preliminary facts except in certain situations covered by Sections 403 and 404. Section 405 deals with evidentiary rules designed to withhold evidence from the jury because it is too unreliable to be evaluated properly or because public policy requires its exclusion.

Under Section 405, the judge first indicates to the parties who has the burden of proof and the burden of producing evidence on the disputed issue as implied by the rule of law under which the question arises. For example, Section 1200 indicates that the burden of proof is usually on the proponent of the evidence to show that the proffered evidence is within a hearsay exception. Thus, if the disputed preliminary fact is whether the proffered statement was spontaneous, as required by Section 1240, the proponent would have the burden of persuading the judge as to the spontaneity of the statement. On the other hand, the privilege rules usually place the burden of proof on the objecting party to show that a privilege is applicable. Thus, if the disputed preliminary fact is whether a person is married to a party and, hence, whether their confidential communications are privileged under Section 980, the burden of proof is on the party asserting the privilege to persuade the judge of the existence of the marriage.

After the judge has indicated to the parties who has the burden of proof and the burden of producing evidence, the parties submit their evidence on the preliminary issue to the judge. If the judge is persuaded by the party with the burden of proof, he finds in favor of that party in regard to the preliminary fact and either admits or excludes the proffered evidence as required by the rule of law under which the question arises. Otherwise, he finds against that party on the preliminary fact and either admits or excludes the proffered evidence as required by such finding.

Section 405 is generally consistent with existing law. Code Civ.Proc. § 2102 ("All questions of law, including the admissibility of testimony, [and] the facts preliminary to such admission, ... are to be decided by the Court") (superseded by Evidence Code § 310).

Examples of preliminary fact issues to be decided under Section 405

Illustrative of the preliminary fact questions that should be decided under Section 405 are the following:

Section 701—Disqualification of a witness for lack of mental capacity. Under existing law, as under this code, the party objecting to a proffered witness has the burden of proving the witness' lack of capacity. People v. Craig, 111 Cal. 460, 469, 44 Pac. 186, 188 (1896); People v. Tyree, 21 Cal.App. 701, 706, 132 Pac. 784, 786 (1913) (disapproved) on other grounds in People v. McCaughan, 49 Cal.2d 409, 420, 317 P.2d 974, 981 (1957).

Section 720—Qualifications of an expert witness. Under Section 720, as under existing law, the proponent must persuade the judge that his expert is qualified, and it is error for the judge to submit the qualifications of the expert to the jury. Fairbank v. Hughson, 58 Cal. 314 (1881); Eble v. Peluso, 80 Cal.App.2d 154, 181 P.2d 680 (1947).

Section 788—Conviction of a crime when offered to attack credibility. If the disputed preliminary fact is whether a pardon or some similar relief has been granted to a witness convicted of a crime, the judge's determination is made under Section 405. Cf. Comment to Section 403.

Section 870—Opinion evidence on sanity. Whether a witness is sufficiently acquainted with a person whose sanity is in question to be qualified to express an opinion on the matter involves, in effect, the expertise of the witness on that limited subject. The witness' qualifications to express such an opinion, therefore, are to be determined by the judge under Section 405 just as the qualifications of other experts are decided by the judge. See the discussion of Section 720 in this Comment, supra. Under existing law, too, determination of whether a witness is an "intimate acquaintance" is a question addressed to the court. Estate of Budan, 156 Cal. 230, 104 Pac. 442 (1909).

Sections 900–1070—Privileges. Under this code, as under existing law, the party claiming a privilege has the burden of proof on the preliminary facts. San Diego Professional Ass'n v. Superior Court, 58 Cal.2d 194, 199, 23 Cal.Rptr. 384, 387, 373 P.2d 448, 451 (1962) ("The burden of establishing that a particular matter is privileged is on the party asserting that privilege."); Chronicle Publishing Co. v. Superior Court, 54 Cal.2d 548, 565, 7 Cal.Rptr. 109, 117, 354 P.2d 637, 645 (1960). The proponent of the proffered evidence, however, has the burden of proof upon any preliminary fact necessary to show that an exception to the privilege is applicable. But see Abbott v. Superior Court, 78 Cal.App.2d 19, 21, 177 P.2d 317, 318 (1947) (suggesting that a prima facie showing by the proponent is sufficient where the issue is whether a communication between attorney and client was made in contemplation of crime).

Sections 1152, 1154—Admissions made during compromise negotiations. With respect to admissions made during compromise negotiations, the disputed preliminary fact to be decided by the judge is whether the admission occurred during compromise negotiations or at some other time. This code places the burden on the objecting party to satisfy the judge that the admission occurred during such negotiations.

Sections 1200–1341—Hearsay evidence. When hearsay evidence is offered, two preliminary fact questions may be raised. The first question relates to the authenticity of the proffered declaration—was the statement actually made by the person alleged to have made it? The second question relates to the existence of those circumstances that make the hearsay sufficiently trustworthy to be received in evidence—e.g., was the declaration spontaneous, the confession voluntary, the business record trustworthy? Under this code, questions relating to the authenticity of the proffered declaration are decided under Section 403. See the Comment to Section 403. But other preliminary fact questions are decided under Section 405.

For example, the court must decide whether a statement offered as a dying declaration was made under a sense of impending death, and the proponent of the evidence has the burden of proof on this issue. People v. Keelin, 136 Cal.App.2d 860, 873, 289 P.2d 520, 528 (1955); People v. Pollock, 31 Cal.App.2d 747, 753–754, 89 P.2d 128, 131 (1939). Under this code, the proponent of a hearsay declaration has the burden of proof on the unavailability of the declarant as a witness under Section 1291 or 1310; but the party objecting to the evidence has the burden of proving that the unavailability of the declarant was procured by the proponent in order to prevent the declarant from testifying. See Evidence Code § 240.

Section 1416—Opinion evidence on handwriting. Whether a witness is sufficiently acquainted with the handwriting of a person to give an opinion on whether a questioned writing is in that person's handwriting involves, in effect, the expertise of the witness on the limited subject of the supposed writer's handwriting. The witness' qualifications to express such an opinion, therefore, are to be determined by the judge under Section 405 just as the qualifications of other experts are decided by the judge. See the discussion of Section 720 in this Comment, supra.

Sections 1417–1419—Comparison of writing with exemplar. Under Sections 1417 through 1419, as under existing law, the judge must be satisfied that a writing is genuine before he may admit it for comparison with other writings whose authenticity is in dispute. People v. Creegan, 121 Cal. 554, 53 Pac. 1082 (1898); Marshall v. Hancock, 80 Cal. 82, 22 Pac. 61 (1889).

Sections 1500–1510—Best evidence rule. Under Section 405, as under existing law, the trial judge is required to determine the preliminary fact necessary to warrant reception of secondary evidence of a writing, and the burden of proof on the issue is on the proponent of the secondary evidence. Cotton v. Hudson, 42 Cal.App.2d 812, 110 P.2d 70 (1941).

Sections 1550, 1551—Photographic copy of writing. Sections 1550 and 1551 are special exceptions to the best evidence rule; hence, Section 405 governs the determination of any disputed preliminary fact under these sections just as it governs the determination of disputed preliminary facts under Sections 1500 through 1510. See the discussion of Sections 1550–1510 in this Comment, supra.

Function of court and jury under Section 405

When preliminary fact question is also an issue involved in merits of case. In some cases, a factual issue to be decided by the judge under Section 405 will coincide with an issue involved in the merits of the case. For example, in People v. MacDonald, 24 Cal.App.2d 702, 76 P.2d 121 (1938), the defendant in an incest prosecution objected to the testimony of the prosecutrix on the ground that she was his wife. The judge, in ruling on the objection, had to determine whether the prosecutrix was also the defendant's daughter and, hence, whether their marriage was incestuous and void. In such a case, it would be prejudicial to the parties for the judge to inform the jury how he had decided the same factual question that it must decide in determining the merits of the case. Subdivision (b), therefore, prohibits a judge from informing the jury how he decided a question under Section 405 that the jury must ultimately resolve on the merits.

The judge is also prohibited from instructing the jury to disregard evidence that has been admitted if the jury's determination of a fact in deciding the merits differs from the judge's determination of the same fact under Section 405. The rules of admissibility being applied by the judge under Section 405 are designed to withhold evidence from the jury because it is too unreliable to be evaluated properly or because public policy requires its exclusion. The policies underlying these rules are served only by the exclusion of the evidence. No valid public or evidentiary purpose is served by submitting the admissibility question again to the jury. For example, the interspousal testimonial privilege involved in People v. MacDonald, 24 Cal.App.2d 702, 76 P.2d 121 (1938), exists to preclude a spouse from being involuntarily compelled to testify against the other spouse. The privilege serves its purpose only if the spouse does not testify. The harm the privilege is designed to prevent has occurred if the spouse testifies. Therefore, subdivision (b) provides for the finality of the judge's rulings on admissibility under Section 405 even in those cases where the factual questions decided by the judge coincide with the factual questions ultimately to be resolved by the jury.

Of course, Section 405 has no effect on the constitutional right of the judge to comment on the evidence and on the testimony and credibility of witnesses. See Cal.Const., Art. I, § 13, and Art. VI, § 19.

Confessions, dying declarations, and spontaneous statements. Although Section 405 is generally consistent with existing law, it will, however, substantially change the law relating to confessions, dying declarations, and spontaneous statements. Under existing law, the judge considers all of the evidence and decides whether evidence of this sort is admissible, as indicated in Section 405. But if he decides the proffered evidence is admissible, he submits the preliminary question to the jury for a final determination whether the confession was voluntary, whether the dying declaration was made in realization of impending doom, or whether the spontaneous statement was in fact spontaneous; and the jury is instructed to disregard the statement if it does not believe that the condition of admissibility has been satisfied. People v. Baldwin, 42 Cal.2d 858, 866–867, 270 P.2d 1028, 1033–1034 (1954) (confession—see the court's instruction, id. at 866, 270 P.2d at 1033); People v. Gonzales, 24 Cal.2d 870, 876–877, 151 P.2d 251, 254 (1944) (confession); People v. Singh, 182 Cal. 457, 476, 188 Pac. 987, 995 (1920) (dying declaration); People v. Keelin, 136 Cal.App.2d 860, 871, 289 P.2d 520, 527 (1955) (spontaneous declaration).

Under Section 405, the judge's rulings on these questions are final; the jury does not have an opportunity to redetermine the issue.

Section 405 will have no effect on the admissibility of confessions where the uncontradicted evidence shows that the confession was not voluntary. Under existing law, as under the Evidence Code, such a confession may not be admitted for consideration by the jury. People v. Trout, 54 Cal.2d 576, 6 Cal.Rptr. 759, 354 P.2d 231 (1960); People v. Jones, 24 Cal.2d 601, 150 P.2d 801 (1944). Section 405 will also have no effect on the admissibility of confessions in those instances where, despite a conflict in the evidence, the court is persuaded that the confession was not voluntary; for, under existing law (as under the Evidence Code), "if the court concludes that the confession was not free and voluntary it ... is in duty bound to withhold it from the jury's consideration." People v. Gonzales, 24 Cal.2d 870, 876, 151 P.2d 251, 254 (1944).

Hence, Section 405 changes the law relating to confessions only where there is a substantial conflict in the evidence over voluntariness and the court is not persuaded that the confession was involuntary. Under existing law, a court that is in doubt may "pass the buck" concerning such a confession to the jury when there is a difficult factual question to resolve; for "if there is evidence that the confession was free and voluntary, it is within the court's discretion to permit it to be read to the jury, and to submit to the jury for its determination the question whether under all the circumstances the confession was made freely and voluntarily." People v. Gonzales, 24 Cal.2d 870, 876, 151 P.2d 251, 254 (1944). Under the Evidence Code, however, the court is required to withhold a confession from the jury unless the court is persuaded that the confession was made freely and voluntarily. The court has no "discretion" to avoid difficult decisions by shifting the responsibility to the jury. If the court is in doubt, if the prosecution has not persuaded it of the voluntary nature of the confession, Section 405 requires the court to exclude the confession. Thus, Section 405 makes the procedure for determining the admissibility of a confession the same as the procedure for determining the admissibility of physical evidence claimed to have been seized in violation of constitutional guarantees. See People v. Gorg, 45 Cal.2d 776, 291 P.2d 469 (1955); People v. Chavez, 208 Cal.App.2d 248, 24 Cal.Rptr. 895 (1962).

The existing law is based on the belief that a jury, in determining the defendant's guilt or innocence, can and will refuse to consider a confession that it has determined was involuntary even though it believes that the confession is true. Section 405, on the other hand, proceeds upon the belief that it is unrealistic to expect a jury to perform such a feat. Corroborating facts stated in a confession cannot but assist the jury in resolving other conflicts in the evidence. The question of voluntariness will inevitably become merged with the question of guilt and the truth of the confession; and, as a result of this merger, the admitted confession will inevitably be considered on the issue of guilt. The defendant will receive a greater degree of protection if the court is deprived of the power to shift its fact-determining responsibility to the jury and is required to exclude a confession whenever it is not persuaded that the confession was voluntary.

The foregoing discussion has focused on confessions because the case law is well developed there. But the "second crack" doctrine is equally unsatisfactory when applied to dying declarations and spontaneous statements. Hence, Section 405 requires the court to rule finally on the admissibility of these statements as well.

Of course, Section 405 does not prevent the presentation of any evidence to the jury that is relevant to the reliability of the hearsay statement. See Evidence Code § 406. Thus, a party may present evidence of the circumstances under which a confession, dying declaration, or spontaneous statement was made where such evidence is relevant to the credibility of the statement, even though such evidence may duplicate to some degree the evidence presented to the court on the issue of admissibility. But the jury's sole concern is the truth or falsity of the facts stated, not the admissibility of the statement.

§ 406. Evidence affecting weight or credibility

This article does not limit the right of a party to introduce before the trier of fact evidence relevant to weight or credibility.

LAW REVISION COMMISSION COMMENT

Other sections in this article provide that the judge determines whether proffered evidence is admissible, i.e., whether it may be considered by the trier of fact. Section 406 simply makes it clear that the judge's decision on a question of admissibility does not preclude the parties from introducing before the trier of fact evidence relevant to weight and credibility. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

CHAPTER 5. WEIGHT OF EVIDENCE GENERALLY

§ 410. Direct evidence

As used in this chapter, "direct evidence" means evidence that directly proves a fact, without an inference or presumption, and which in itself, if true, conclusively establishes that fact.

§ 411. Direct evidence of one witness sufficient

Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.

LAW REVISION COMMISSION COMMENT

Section 411 restates the substance of and supersedes Section 1844 of the Code of Civil Procedure. The phrase "except where additional evidence is required by statute" has been substituted for the phrase "except perjury and treason" in Section 1844 because the "perjury and treason" exception to Section 1844 is too limited: Corroboration is required by Section 20 of Article I of the California Constitution (treason) and by Penal Code Sections 653f (solicitation to commit felonies), 1103a (perjury), 1108 (abortion and prostitution cases), 1110 (obtaining property by oral false pretenses), and 1111 (testimony of accomplices); in addition, Civil Code Section 130 provides that divorces cannot be granted on the uncorroborated testimony of the parties. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 412. Party having power to produce better evidence

If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.

LAW REVISION COMMISSION COMMENT

Section 412 restates the substance of and supersedes subdivisions 6 and 7 of Section 2061 of the Code of Civil Procedure.

Section 413, taken together with Section 412, restates in substance the meaning that has been given to the presumptions appearing in subdivisions 5 and 6 of Code of Civil Procedure Section 1963.

Evidence Code Section 913 provides that "no presumption shall arise because of the exercise of [a] privilege, and the trier of fact may not draw any inference therefrom," and the trial judge is required to give such an instruction if he is requested to do so. However, there is no inconsistency between Section 913 and Sections 412 and 413. Section 913 deals only with the inferences that may be drawn from the exercise of a privilege; it does not purport to deal with the inferences that may be drawn from the evidence in the case. Sections 412 and 413, on the other hand, deal with the inferences to be drawn from the evidence in the case; and the fact that a privilege has been relied on is irrelevant to the application of these sections. Cf. People v. Adamson, 27 Cal.2d 478, 165 P.2d 3 (1946). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 413. Party's failure to explain or deny evidence

In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party's failure to explain or to deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case.

DIVISION 4. JUDICIAL NOTICE

§ 450. Judicial notice may be taken only as authorized by law

Judicial notice may not be taken of any matter unless authorized or required by law.

LAW REVISION COMMISSION COMMENT

Section 450 provides that judicial notice may not be taken of any matter unless authorized or required by law. See Evidence Code § 160, defining "law." Sections 451 and 452 state a number of matters which must or may be judicially noticed. Judicial notice of other matters is authorized or required by other statutes or by decisional law. E.g., Civil Code § 53; Corp.Code § 6602. In this respect, the Evidence Code is consistent with existing law, for the principal judicial notice provision found in existing law—Code of Civil Procedure Section 1875 (superseded by this division of the Evidence Code)—does not limit judicial notice to those matters specified by statute. Judicial notice has been taken of various matters not so specified, principally of those matters of common knowledge which are certain and indisputable. Witkin, California Evidence §§ 50–52 (1958).

Under the Evidence Code, as under existing law, courts may consider whatever materials are appropriate in construing statutes, determining constitutional issues, and formulating rules of law. That a court may consider legislative history, discussions by learned writers in treatises and law reviews, materials that contain controversial economic and social facts or findings or that indicate contemporary opinion, and similar materials is inherent in the requirement that it take judicial notice of the law. In many cases, the meaning and validity of statutes, the precise nature of a common law rule, or the correct interpretation of a constitutional provision can be determined only with the help of such extrinsic aids. Cf. People v. Sterling Refining Co., 86 Cal.App. 558, 564, 261 Pac. 1080, 1083 (1927) (statutory authority to notice "public and private acts" of legislature held to authorize examination of legislative history of certain acts). See also Perez v. Sharp, 32 Cal.2d 711, 198 P.2d 17 (1948) (texts and authorities used by court in opinions determining constitutionality of statute prohibiting interracial marriages). Section 450 will neither broaden nor limit the extent to which a court may resort to extrinsic aids in determining the rules of law that it is required to notice. Nor will Section 450 broaden or limit the extent to which a court may take judicial notice of any other matter not specified in Section 451 or 452. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 451. Matters which must be judicially noticed

Judicial notice shall be taken of the following:

(a) The decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution.

(b) Any matter made a subject of judicial notice by Section 11343.6, 11344.6, or 18576 of the Government Code or by Section 1507 of Title 44 of the United States Code.*

(c) Rules of professional conduct for members of the bar adopted pursuant to Section 6076 of the Business and Professions Code and rules of practice and procedure for the courts of this state adopted by the Judicial Council.

(d) Rules of pleading, practice, and procedure prescribed by the United States Supreme Court, such as the Rules of the United States Supreme Court, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Admiralty Rules, the Rules of the Court of Claims, the Rules of the Customs Court, and the General Orders and Forms in Bankruptcy.

(e) The true signification of all English words and phrases and of all legal expressions.

(f) Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Judicial notice of the matters specified in Section 451 is mandatory, whether or not the court is requested to notice them. Although the court errs if it fails to take judicial notice of the matters specified in this section, such error is not necessarily reversible error. Depending upon the circumstances, the appellate court may hold that the error was "invited" (and, hence, is not reversible error) or that points not urged in the trial court may not be advanced on appeal. These and similar principles of appellate practice are not abrogated by this section.

Section 451 includes matters both of law and of fact. The matters specified in subdivisions (a), (b), (c), and (d) are all matters that, broadly speaking, can be considered as a part of the "law" applicable to the particular case. The court can reasonably be expected to discover and apply this law even if the parties fail to provide the court with references to the pertinent cases, statutes, regulations and rules. Other matters that also might properly be considered as a part of the law applicable to the case (such as the law of foreign nations and certain regulations and ordinances) are included under Section 452, rather than under Section 451, primarily because of the difficulty of ascertaining such matters. Subdivision (e) of Section 451 requires the court to judicially notice "the true signification of all English words and phrases and of all legal expressions." These are facts that must be judicially noticed in order to conduct meaningful proceedings. Similarly, subdivision (f) of Section 451 covers "universally known" facts.

Listed below are the matters that must be judicially noticed under Section 451.

California and federal law. The decisional, constitutional, and public statutory law of California and of the United States must be judicially noticed under subdivision (a). This requirement states existing law as found in subdivision 3 of Code of Civil Procedure Section 1875 (superseded by the Evidence Code).

Charter provisions of California cities and counties. Judicial notice must be taken under subdivision (a) of the provisions of charters adopted pursuant to Section <sfr>71/2<efr> or 8 of Article XI of the California Constitution. Notice of these provisions is mandatory under the State Constitution. Cal.Const., Art. XI, § <sfr>71/2<efr> (county charter), § 8 (charter of city or city and county).

Regulations of California and federal agencies. Judicial notice must be taken under subdivision (b) of the rules, regulations, orders, and standards of general application adopted by California state agencies and filed with the Secretary of State or printed in the California Administrative Code or the California Administrative Register. This is existing law as found in Government Code Sections 11383 and 11384. Under subdivision (b), judicial notice must also be taken of the rules of the State Personnel Board. This, too, is existing law under Government Code Section 18576.

Subdivision (b) also requires California courts to judicially notice documents published in the Federal Register (such as (1) presidential proclamations and executive orders having general applicability and legal effect and (2) orders, regulations, rules, certificates, codes of fair competition, licenses, notices, and similar instruments, having general applicability and legal effect, that are issued, prescribed, or promulgated by federal agencies). There is no clear holding that this is existing California law. Although Section 307 of Title 44 of the United States Code provides that the "contents of the Federal Register shall be judicially noticed," it is not clear that this requires notice by state courts. See Broadway Fed. etc. Loan Ass'n v. Howard, 133 Cal.App.2d 382, 386 note 4, 285 P.2d 61, 64 note 4 (1955) (referring to 44 U.S.C.A. §§ 301–314). Compare Note, 59 Harv.L.Rev. 1137, 1141 (1946) (doubt expressed that notice is required), with Knowlton, Judicial Notice, 10 Rutgers L.Rev. 501, 504 (1956) ("it would seem that this provision is binding upon the state courts"). Livermore v. Beal, 18 Cal.App.2d 535, 542–543, 64 P.2d 987, 992 (1937), suggests that California courts are required to judicially notice pertinent federal official action, and California courts have judicially noticed the contents of various proclamations, orders, and regulations of federal agencies. E.g., Pacific Solvents Co. v. Superior Court, 88 Cal.App.2d 953, 955, 199 P.2d 740, 741 (1948) (orders and regulations); People v. Mason, 72 Cal.App.2d 699, 706–707, 165 P.2d 481, 485 (1946) (presidential and executive proclamations) (disapproved on other grounds in People v. Friend, 50 Cal.2d 570, 578, 327 P.2d 97, 102 (1958)); Downer v. Grizzly Livestock & Land Co., 6 Cal.App.2d 39, 42, 43 P.2d 843, 845 (1935) (rules and regulations). Section 451 makes the California law clear.

Rules of court. Judicial notice of the California Rules of Court is required under subdivision (c). These rules, adopted by the Judicial Council, are as binding on the parties as procedural statutes. Cantillon v. Superior Court, 150 Cal.App.2d 184, 309 P.2d 890 (1957). See Albermont Petroleum, Ltd. v. Cunningham, 186 Cal.App.2d 84, 9 Cal.Rptr. 405 (1960). Likewise, the rules of pleading, practice, and procedure promulgated by the United States Supreme Court are required to be judicially noticed under subdivision (d).

The rules of the California and federal courts which are required to be judicially noticed under subdivisions (c) and (d) are, or should be, familiar to the court or easily discoverable from materials readily available to the court. However, this may not be true of the court rules of sister states or other jurisdictions nor, for example, of the rules of the various United States Courts of Appeals or local rules of a particular superior court. See Albermont Petroleum, Ltd. v. Cunningham, 186 Cal.App.2d 84, 9 Cal.Rptr. 405 (1960). Judicial notice of these rules is permitted under subdivision (e) of Section 452 but is not required unless there is compliance with the provisions of Section 453.

State Bar Rules of Professional Conduct. The Rules of Professional Conduct of the State Bar of California are, in effect, rules of the Supreme Court, for they must be approved by that court. Barton v. State Bar, 209 Cal. 677, 289 Pac. 818 (1930). Subdivision (c), therefore, requires the court to take judicial notice of these rules to the same extent that it takes notice of other rules of court.

Words, phrases, and legal expressions. Subdivision (e) requires the court to take judicial notice of "the true signification of all English words and phrases and of all legal expressions." This restates the same matter covered in subdivision 1 of Code of Civil Procedure Section 1875. Under existing law, however, it is not clear that judicial notice of these matters is mandatory.

"Universally known" facts. Subdivision (f) requires the court to take judicial notice of indisputable facts and propositions universally known. "Universally known" does not mean that every man on the street has knowledge of such facts. A fact known among persons of reasonable and average intelligence and knowledge will satisfy the "universally known" requirement. Cf. People v. Tossetti, 107 Cal.App. 7, 12, 289 Pac. 881, 883 (1930).

Subdivision (f) should be contrasted with subdivisions (g) and (h) of Section 452, which provide for judicial notice of indisputable facts and propositions that are matters of common knowledge or are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. Subdivisions (g) and (h) permit notice of facts and propositions that are indisputable but are not "universally" known.

Judicial notice does not apply to facts merely because they are known to the judge to be indisputable. The facts must fulfill the requirements of subdivision (f) of Section 451 or subdivision (g) or (h) of Section 452. If a judge happens to know a fact that is not widely enough known to be subject to judicial notice under this division, he may not "notice" it.

It is clear under existing law that the court may judicially notice the matters specified in subdivision (f); it is doubtful, however, that the court must notice them. See Varcoe v. Lee, 180 Cal. 338, 347, 181 Pac. 223, 227 (1919) (dictum). Since subdivision (f) covers universally known facts, the parties ordinarily will expect the court to take judicial notice of them; the court should not be permitted to ignore such facts merely because the parties fail to make a formal request for judicial notice.

§ 452. Matters which may be judicially noticed

Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451:

(a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state.

(b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.

(c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.

(d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.

(e) Rules of court of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.

(f) The law of an organization of nations and of foreign nations and public entities in foreign nations.

(g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute.

(h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Section 452 includes matters both of law and of fact. The court may take judicial notice of these matters, even when not requested to do so; it is required to notice them if a party requests it and satisfies the requirements of Section 453.

The matters of law included under Section 452 may be neither known to the court nor easily discoverable by it because the sources of information are not readily available. However, if a party requests it and furnishes the court with "sufficient information" for it to take judicial notice, the court must do so if proper notice has been given to each adverse party. See Evidence Code § 453. Thus, judicial notice of these matters of law is mandatory only if counsel adequately discharges his responsibility for informing the court as to the law applicable to the case. The simplified process of judicial notice can then be applied to all of the law applicable to the case, including such law as ordinances and the law of foreign nations.

Although Section 452 extends the process of judicial notice to some matters of law which the courts do not judicially notice under existing law, the wider scope of such notice is balanced by the assurance that the matter need not be judicially noticed unless adequate information to support its truth is furnished to the court. Under Section 453, this burden falls upon the party requesting that judicial notice be taken. In addition, the parties are entitled under Section 455 to a reasonable opportunity to present information to the court as to the propriety of taking judicial notice and as to the tenor of the matter to be noticed.

Listed below are the matters that may be judicially noticed under Section 452 (and must be noticed if the conditions specified in Section 453 are met).

Law of sister states. Subdivision (a) provides for judicial notice of the decisional, constitutional, and statutory law in force in sister states. California courts now take judicial notice of the law of sister states under subdivision 3 of Section 1875 of the Code of Civil Procedure. However, Section 1875 seems to preclude notice of sister-state law as interpreted by the intermediate-appellate courts of sister states, whereas Section 452 permits notice of relevant decisions of all sister-state courts. If this be an extension of existing law, it is a desirable one, for the courts of sister states generally can be considered as responsive to the need for properly determining the law as are equivalent courts in California. The existing law also is not clear as to whether a request for judicial notice of sister-state law is required and whether judicial notice is mandatory. On the necessity for a request for judicial notice, see Comment, 24 Cal.L.Rev. 311, 316 (1936). On whether judicial notice is mandatory, see In re Bartges, 44 Cal.2d 241, 282 P.2d 47 (1955), and the opinion of the Supreme Court in denying a hearing in Estate of Moore, 7 Cal.App.2d 722, 726, 48 P.2d 28, 29 (1935).

Law of territories and possessions of the United States. Subdivision (a) also provides for judicial notice of the decisional, constitutional, and statutory law in force in the territories and possessions of the United States. See the broad definition of "state" in Evidence Code § 220. It is not clear under existing California law whether this law is treated as sister-state law or foreign law. See Witkin, California Evidence § 45 (1958).

Resolutions and private acts. Subdivision (a) provides for judicial notice of resolutions and private acts of the Congress of the United States and of the legislature of any state, territory, or possession of the United States. See the broad definition of "state" in Evidence Code § 220.

The California law on this matter is not clear. Our courts are authorized by subdivision 3 of Code of Civil Procedure Section 1875 to take judicial notice of private statutes of this State and the United States, and they probably would take judicial notice of resolutions of this State and the United States under the same subdivision. It is not clear whether such notice is compulsory. It may be that judicial notice of a private act pleaded in a criminal action pursuant to Penal Code Section 963 is mandatory, whereas judicial notice of the same private act may be discretionary when pleaded in a civil action pursuant to Section 459 of the Code of Civil Procedure.

Although no case in point has been found, California courts probably would not take judicial notice of a resolution or private act of a sister state or territory or possession of the United States. Although Section 1875 is not the exclusive list of the matters that will be judicially noticed, the courts did not take judicial notice of a private statute prior to the enactment of Section 1875. Ellis v. Eastman, 32 Cal. 447 (1867).

Regulations, ordinances, and similar legislative enactments. Subdivision (b) provides for judicial notice of regulations and legislative enactments, adopted by or under the authority of the United States or of any state, territory, or possession of the United States, including public entities therein. See the broad definition of "public entity" in Evidence Code § 200. The words "regulations and legislative enactments" include such matters as "ordinances" and other similar legislative enactments. Not all public entities legislate by ordinance.

This subdivision changes existing law. Under existing law, municipal courts take judicial notice of ordinances in force within their jurisdiction. People v. Cowles, 142 Cal.App.2d Supp. 865, 867, 298 P.2d 732, 733–734 (1956); People v. Crittenden, 93 Cal.App.2d Supp. 871, 877, 209 P.2d 161, 165 (1949). In addition, an ordinance pleaded in a criminal action pursuant to Penal Code Section 963 must be judicially noticed. On the other hand, neither the superior court nor a district court of appeal will take judicial notice in a civil action of municipal or county ordinances. Thompson v. Guyer–Hays, 207 Cal.App.2d 366, 24 Cal.Rptr. 461 (1962); County of Los Angeles v. Bartlett, 203 Cal.App.2d 523, 21 Cal.Rptr. 776 (1962); Becerra v. Hochberg, 193 Cal.App.2d 431, 14 Cal.Rptr. 101 (1961). It seems safe to assume that ordinances of sister states and of territories and possessions of the United States would not be judicially noticed under existing law.

Judicial notice of certain regulations of California and federal agencies is mandatory under subdivision (b) of Section 451. Subdivision (b) of Section 452 provides for judicial notice of California and federal regulations that are not included under subdivision (b) of Section 451 and, also, for judicial notice of regulations of other states and territories and possessions of the United States.

Both California and federal regulations have been judicially noticed under subdivision 3 of Code of Civil Procedure Section 1875. 18 Cal.Jur.2d Evidence § 24. Although no case in point has been found, it is unlikely that regulations of other states or of territories or possessions of the United States would be judicially noticed under existing law.

Official acts of the legislative, executive, and judicial departments. Subdivision (c) provides for judicial notice of the official acts of the legislative, executive, and judicial departments of the United States and any state, territory, or possession of the United States. See the broad definition of "state" in Evidence Code § 220. Subdivision (c) states existing law as found in subdivision 3 of Code of Civil Procedure Section 1875. Under this provision, the California courts have taken judicial notice of a wide variety of administrative and executive acts, such as proceedings and reports of the House Committee on Un–American Activities, records of the State Board of Education, and records of a county planning commission. See Witkin, California Evidence § 49 (1958), and 1963 Supplement thereto.

Court records and rules of court. Subdivisions (d) and (e) provide for judicial notice of the court records and rules of court of (1) any court of this State or (2) any court of record of the United States or of any state, territory, or possession of the United States. See the broad definition of "state" in Evidence Code § 220. So far as court records are concerned, subdivision (d) states existing law. Flores v. Arroyo, 56 Cal.2d 492, 15 Cal.Rptr. 87, 364 P.2d 263 (1961). While the provisions of subdivision (c) of Section 452 are broad enough to include court records, specific mention of these records in subdivision (d) is desirable in order to eliminate any uncertainty in the law on this point. See the Flores case, supra.

Subdivision (e) may change existing law so far as judicial notice of rules of court is concerned, but the provision is consistent with the modern philosophy of judicial notice as indicated by the holding in Flores v. Arroyo, supra. To the extent that subdivision (e) overlaps with subdivisions (c) and (d) of Section 451, notice is, of course, mandatory under Section 451.

Foreign law. Subdivision (f) provides for judicial notice of the law of organizations of nations, foreign nations, and public entities in foreign nations. See the broad definition of "public entity" in Evidence Code § 200. Subdivision (f) should be read in connection with Sections 310, 311, 453, and 454. These provisions retain the substance of the existing law which was enacted in 1957 upon recommendation of the California Law Revision Commission. Code Civ.Proc. § 1875. See 1 Cal.Law Revision Comm'n. Rep., Rec. & Studies, Recommendation and Study Relating to Judicial Notice of the Law of Foreign Countries at I–1 (1957).

Subdivision (f) refers to "the law" of organizations of nations, foreign nations, and public entities in foreign nations. This makes all law, in whatever form, subject to judicial notice.

Matters of "common knowledge" and verifiable facts. Subdivision (g) provides for judicial notice of matters of common knowledge within the court's territorial jurisdiction that are not subject to dispute. "Territorial jurisdiction," in this context, refers to the county in which a superior court is located or the judicial district in which a municipal or justice court is located. The fact of which notice is taken need not be something physically located within the court's territorial jurisdiction, but common knowledge of the fact must exist within the court's territorial jurisdiction. Subdivision (g) reflects existing case law. Varcoe v. Lee, 180 Cal. 338, 181 Pac. 223 (1919); 18 Cal.Jur.2d Evidence § 19 at 439–440. The California courts have taken judicial notice of a wide variety of matters of common knowledge. Witkin, California Evidence §§ 50–52 (1958).

Subdivision (h) provides for judicial notice of indisputable facts immediately ascertainable by reference to sources of reasonably indisputable accuracy. In other words, the facts need not be actually known if they are readily ascertainable and indisputable. Sources of "reasonably indisputable accuracy" include not only treatises, encyclopedias, almanacs, and the like, but also persons learned in the subject matter. This would not mean that reference works would be received in evidence or sent to the jury room. Their use would be limited to consultation by the judge and the parties for the purposes of determining whether or not to take judicial notice and determining the tenor of the matter to be noticed.

Subdivisions (g) and (h) include, for example, facts which are accepted as established by experts and specialists in the natural, physical, and social sciences, if those facts are of such wide acceptance that to submit them to the jury would be to risk irrational findings. These subdivisions include such matters listed in Code of Civil Procedure Section 1875 as the "geographical divisions and political history of the world." To the extent that subdivisions (g) and (h) overlap subdivision (f) of Section 451, notice is, of course, mandatory under Section 451.

The matters covered by subdivisions (g) and (h) are included in Section 452, rather than Section 451, because it seems reasonable to put the burden on the parties to bring adequate information before the court if judicial notice of these matters is to be mandatory. See Evidence Code § 453 and the Comment thereto.

Under existing law, courts take judicial notice of the matters that are included under subdivisions (g) and (h), either pursuant to Section 1875 of the Code of Civil Procedure or because such matters are matters of common knowledge which are certain and indisputable. Witkin, California Evidence §§ 50–52 (1958). Notice of these matters probably is not compulsory under existing law.

§ 452.5. Criminal conviction records; computer-generated records; admissibility

(a) The official acts and records specified in subdivisions (c) and (d) of Section 452 include any computer-generated official court records, as specified by the Judicial Council which relate to criminal convictions, when the record is certified by a clerk of the municipal or superior court pursuant to Section 69844.5 or 71280.5 of the Government Code at the time of computer entry.

(b) An official record of conviction certified in accordance with subdivision (a) of Section 1530 is admissible pursuant to 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.

§ 453. Compulsory judicial notice upon request

The trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and:

(a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and

(b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.

LAW REVISION COMMISSION COMMENT

Section 453 provides that the court must take judicial notice of any matter specified in Section 452 if a party requests that such notice be taken, furnishes the court with sufficient information to enable it to take judicial notice of the matter, and gives each adverse party sufficient notice of the request to prepare to meet it.

Section 453 is intended as a safeguard and not as a rigid limitation on the court's power to take judicial notice. The section does not affect the discretionary power of the court to take judicial notice under Section 452 where the party requesting that judicial notice be taken fails to give the requisite notice to each adverse party or fails to furnish sufficient information as to the propriety of taking judicial notice or as to the tenor of the matter to be noticed. Hence, when he considers it appropriate, the judge may take judicial notice under Section 452 and may consult and use any source of pertinent information, whether or not furnished by the parties. However, where the matter noticed under Section 452 is one that is of substantial consequence to the action—even though the court may take judicial notice under Section 452 when the requirements of Section 453 have not been satisfied—the party adversely affected must be given a reasonable opportunity to present information as to the propriety of taking judicial notice and as to the tenor of the matter to be noticed. See Evidence Code § 455 and the Comment thereto.

The "notice" requirement. The party requesting the court to judicially notice a matter under Section 453 must give each adverse party sufficient notice, through the pleadings or otherwise, to enable him to prepare to meet the request. In cases where the notice given does not satisfy this requirement, the court may decline to take judicial notice. A somewhat similar notice to the adverse parties is required under subdivision 4 of Section 1875 of the Code of Civil Procedure when a request for judicial notice of the law of a foreign country is made. Section 453 broadens this existing requirement to cover all matters specified in Section 452.

The notice requirement is an important one since judicial notice is binding on the jury under Section 457. Accordingly, the adverse parties should be given ample notice so that they will have an opportunity to prepare to oppose the taking of judicial notice and to obtain information relevant to the tenor of the matter to be noticed.

Since Section 452 relates to a wide variety of facts and law, the notice requirement should be administered with flexibility in order to insure that the policy behind the judicial notice rules is properly implemented. In many cases, it will be reasonable to expect the notice to be given at or before the time of the pretrial conference. In other cases, matters of fact or law of which the court should take judicial notice may come up at the trial. Section 453 merely requires reasonable notice, and the reasonableness of the notice given will depend upon the circumstances of the particular case.

The "sufficient information" requirement. Under Section 453, the court is not required to resort to any sources of information not provided by the parties. If the party requesting that judicial notice be taken under Section 453 fails to provide the court with "sufficient information," the judge may decline to take judicial notice. For example, if the party requests the court to take judicial notice of the specific gravity of gold, the party requesting that notice be taken must furnish the judge with definitive information as to the specific gravity of gold. The judge is not required to undertake the necessary research to determine the fact, though, of course, he is not precluded from doing such research if he so desires.

Section 453 does not define "sufficient information"; this will necessarily vary from case to case. While the parties will understandably use the best evidence they can produce under the circumstances, mechanical requirements that are ill-suited to the individual case should be avoided. The court justifiably might require that the party requesting that judicial notice be taken provide expert testimony to clarify especially difficult problems.

Burden on party requesting that judicial notice be taken. Where a request is made to take judicial notice under Section 453, the court may decline to take judicial notice unless the party requesting that notice be taken persuades the judge that the matter is one that properly may be noticed under Section 452 and also persuades the judge as to tenor of the matter to be noticed. The degree of the judge's persuasion regarding a particular matter is determined by the subdivision of Section 452 which authorizes judicial notice of the matter. For example, if the matter is claimed to be a fact of common knowledge under paragraph (g) of Section 452, the party must persuade the judge that the fact is of such common knowledge within the territorial jurisdiction of the court that it cannot reasonably be subject to dispute, i.e., that no reasonable person having the same information as is available to the judge could rationally disbelieve the fact. On the other hand, if the matter to be noticed is a city ordinance under paragraph (b) of Section 452, the party must persuade the judge that a valid ordinance exists and also as to its tenor; but the judge need not believe that not reasonable person could conclude otherwise.

Without regard to the evidence supplied by the party requesting that judicial notice be taken, the judge's determination to take judicial notice of a matter specified in Section 452 will be upheld on appeal if the matter was properly noticed. The reviewing court may resort to any information, whether or not available at the trial, in order to sustain the proper taking of judicial notice. See Evidence Code § 459. On the other hand, even though a party requested that judicial notice be taken under Section 453 and gave notice to each adverse party in compliance with subdivision (a) of Section 453, the decision of the judge not to take judicial notice will be upheld on appeal unless the reviewing court determines that the party furnished information to the judge that was so persuasive that no reasonable judge would have refused to take judicial notice of the matter. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 454. Information that may be used in taking judicial notice

(a) In determining the propriety of taking judicial notice of a matter, or the tenor thereof:

(1) Any source of pertinent information, including the advice of persons learned in the subject matter, may be consulted or used, whether or not furnished by a party.

(2) Exclusionary rules of evidence do not apply except for Section 352 and the rules of privilege.

(b) Where the subject of judicial notice is the law of an organization of nations, a foreign nation, or a public entity in a foreign nation and the court resorts to the advice of persons learned in the subject matter, such advice, if not received in open court, shall be in writing.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Since one of the purposes of judicial notice is to simplify the process of proofmaking, the judge should be given considerable latitude in deciding what sources are trustworthy. This section permits the court to use any source of pertinent information, including the advice of persons learned in the subject matter. It probably restates existing law as found in Section 1875 of the Code of Civil Procedure. See Estate of McNamara, 181 Cal. 82, 89–91, 183 Pac. 552, 555 (1919); Rogers v. Cady, 104 Cal. 288, 290, 38 Pac. 81 (1894) (dictum); Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article II. Judicial Notice), 6 Cal.Law Revision Comm'n, Rep., Rec. & Studies 801, 850–851 (1964).

Subdivision (b) preserves a limitation, now appearing in the next to the last paragraph of Code of Civil Procedure Section 1875, on the form in which expert advice on foreign law may be received.

§ 455. Opportunity to present information to court

With respect to any matter specified in Section 452 or in subdivision (f) of Section 451 that is of substantial consequence to the determination of the action:

(a) If the trial court has been requested to take or has taken or proposes to take judicial notice of such matter, the court shall afford each party reasonable opportunity, before the jury is instructed or before the cause is submitted for decision by the court, to present to the court information relevant to (1) the propriety of taking judicial notice of the matter and (2) the tenor of the matter to be noticed.

(b) If the trial court resorts to any source of information not received in open court, including the advice of persons learned in the subject matter, such information and its source shall be made a part of the record in the action and the court shall afford each party reasonable opportunity to meet such information before judicial notice of the matter may be taken.

LAW REVISION COMMISSION COMMENT

Section 455 provides procedural safeguards designed to afford the parties reasonable opportunity to be heard both as to the propriety of taking judicial notice of a matter and as to the tenor of the matter to be noticed.

Subdivision (a). This subdivision guarantees to the parties a reasonable opportunity to present information to the court as to the propriety of taking judicial notice and as to the tenor of the matter to be noticed. In a jury case, the subdivision provides the parties with an opportunity to present their information to the judge before a jury instruction based on a matter judicially noticed is given. Where the matter subject to judicial notice relates to a cause tried by the court, the subdivision guarantees the parties an opportunity to dispute the taking of judicial notice of the matter before the cause is submitted for decision. If the judge does not discover that a matter should be judicially noticed until after the cause is submitted for decision, he may, of course, order the cause to be reopened for the purpose of permitting the parties to provide him with information concerning the matter.

Subdivision (a) is limited in its application to those matters specified in subdivision (f) of Section 451 or in Section 452 that are of substantial consequence to the determination of the action, for it would not be practicable to make the subdivision applicable to the other matters listed in Section 451 or to matters that are of inconsequential significance.

What constitutes a "reasonable opportunity" to "present ... information" will depend upon the complexity of the matter and its importance to the case. For example, in a case where there is no dispute as to the existence and validity of a city ordinance, no formal hearing would be necessary to determine the propriety of taking judicial notice of the ordinance and of its tenor. But, where there is a complex question as to the tenor of foreign law applicable to the case, the granting of a hearing under subdivision (a) would be mandatory. The New York courts have so construed their judicial notice statute, saying that an opportunity for a litigant to know what the deciding tribunal is considering and to be heard with respect to both law and fact is guaranteed by due process of law. Arams v. Arams, 182 Misc. 328, 182 Misc. 336, 45 N.Y.S.2d 251 (Sup.Ct.1943).

Subdivision (b). If the court resorts to sources of information not previously known to the parties, this subdivision requires that such information and its source be made a part of the record when it relates to taking judicial notice of a matter specified in subdivision (f) of Section 451 or in Section 452 that is of substantial consequence to the determination of the action. This requirement is based on a somewhat similar requirement found in Code of Civil Procedure Section 1875 regarding the law of a foreign nation. Making the information and its source a part of the record assures its availability for examination by the parties and by a reviewing court. In addition, subdivision (b) requires the court to give the parties a reasonable opportunity to meet such additional information before judicial notice of the matter may be taken. [7 Cal.L.Rev.Comm. Report 1 (1965)]

§ 456. Noting denial of request to take judicial notice

If the trial court denies a request to take judicial notice of any matter, the court shall at the earliest practicable time so advise the parties and indicate for the record that it has denied the request.

LAW REVISION COMMISSION COMMENT

Section 456 requires the judge to advise the parties and indicate for the record at the earliest practicable time any denial of a request to take judicial notice of a matter. The requirement is imposed in order to provide the parties with an adequate opportunity to submit evidence on any matter as to which judicial notice was anticipated but not taken. No comparable requirement is found in existing law. Compare Evidence Code § 455 and the Comment thereto. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 457. Instructing jury on matter judicially noticed

If a matter judicially noticed is a matter which would otherwise have been for determination by the jury, the trial court may, and upon request shall, instruct the jury to accept as a fact the matter so noticed.

LAW REVISION COMMISSION COMMENT

Section 457 makes matters judicially noticed binding on the jury and thereby eliminates any possibility of presenting to the jury evidence disputing the fact as noticed by the court. The section is limited to instruction on a matter that would otherwise have been for determination by the jury; instruction of juries on matters of law is not a matter of evidence and is covered by the general provisions of law governing instruction of juries. The section states the substance of the existing law as found in Code of Civil Procedure Section 2102. See People v. Mayes, 113 Cal. 618, 625–626, 45 Pac. 860, 862 (1896); Gallegos v. Union–Tribune Publishing Co., 195 Cal.App.2d 791, 797–798, 16 Cal.Rptr. 185, 189–190 (1961). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 458. Judicial notice by trial court in subsequent proceedings

The failure or refusal of the trial court to take judicial notice of a matter, or to instruct the jury with respect to the matter, does not preclude the trial court in subsequent proceedings in the action from taking judicial notice of the matter in accordance with the procedure specified in this division.

LAW REVISION COMMISSION COMMENT

This section provides that the failure or even the refusal of the court to take judicial notice of a matter at the trial does not bar the trial judge, or another trial judge, from taking judicial notice of that matter in a subsequent proceeding, such as a hearing on a motion for new trial or the like. Although no California case in point has been found, it seems safe to assume that the trial judge has the power to take judicial notice of a matter in subsequent proceedings, since the appellate court can properly take judicial notice of any matter that the trial court could properly notice. See People v. Tossetti, 107 Cal.App. 7, 12, 289 Pac. 881, 883 (1930). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 459. Judicial notice by reviewing court

(a) The reviewing court shall take judicial notice of (1) each matter properly noticed by the trial court and (2) each matter that the trial court was required to notice under Section 451 or 453. The reviewing court may take judicial notice of any matter specified in Section 452. The reviewing court may take judicial notice of a matter in a tenor different from that noticed by the trial court.

(b) In determining the propriety of taking judicial notice of a matter, or the tenor thereof, the reviewing court has the same power as the trial court under Section 454.

(c) When taking judicial notice under this section of a matter specified in Section 452 or in subdivision (f) of Section 451 that is of substantial consequence to the determination of the action, the reviewing court shall comply with the provisions of subdivision (a) of Section 455 if the matter was not theretofore judicially noticed in the action.

(d) In determining the propriety of taking judicial notice of a matter specified in Section 452 or in subdivision (f) of Section 451 that is of substantial consequence to the determination of the action, or the tenor thereof, if the reviewing court resorts to any source of information not received in open court or not included in the record of the action, including the advice of persons learned in the subject matter, the reviewing court shall afford each party reasonable opportunity to meet such information before judicial notice of the matter may be taken.

LAW REVISION COMMISSION COMMENT

Section 459 sets forth a separate set of rules for the taking of judicial notice by a reviewing court.

Subdivision (a). Subdivision (a) requires that a reviewing court take judicial notice of any matter that the trial court properly noticed or was obliged to notice. This means that the matters specified in Section 451 must be judicially noticed by the reviewing court even though the trial court failed to take judicial notice of such matters. A matter specified in Section 452 also must be judicially noticed by the reviewing court if such matter was properly noticed by the trial court in the exercise of its discretion or an appropriate request was made at the trial level and the party making the request satisfied the conditions specified in Section 453. However, if the trial court erred, the reviewing court is not bound by the tenor of the notice taken by the trial court.

Having taken judicial notice of such a matter, the reviewing court may or may not apply it in the particular case on appeal. The effect to be given to matters judicially noticed on appeal, where the question has not been raised below, depends on factors that are not evidentiary in character and are not mentioned in this code. For example, the appellate court is required to notice the matters of law mentioned in Section 451, but it may hold that an error which the appellant has "invited" is not reversible error or that points not urged in the trial court may not be advanced on appeal, and refuse, therefore, to apply the law to the pending case. These principles do not mean that the appellate court does not take judicial notice of the applicable law; they merely mean that, for reasons of policy governing appellate review, the appellate court may refuse to apply the law to the case before it.

In addition to requiring the reviewing court to judicially notice those matters which the trial court properly noticed or was required to notice, the subdivision also provides authority for the reviewing court to exercise the same discretionary power to take judicial notice as is possessed by the trial court.

Subdivision (b). The reviewing court may consult any source of pertinent information for the purpose of determining the propriety of taking judicial notice or the tenor of the matter to be noticed. This includes, of course, the power to consult such sources for the purpose of sustaining or reversing the taking of judicial notice by the trial court. As to the rights of the parties when the reviewing court consults such materials, see subdivision (d) and the Comment thereto.

Subdivision (c). This subdivision provides the parties with the same procedural protection when judicial notice is taken by the reviewing court as is provided by Section 455(a).

Subdivision (d). This subdivision assures the parties the same procedural safeguard at the appellate level that they have in the trial court: If the appellate court resorts to sources of information not included in the record in the action or proceeding, or not received in open court at the appellate level, either to sustain the tenor of the notice taken by the trial court or to notice a matter in a tenor different from that noticed by the trial court, the parties must be given a reasonable opportunity to meet such additional information before judicial notice of the matter may be taken. See Evidence Code § 455(b) and the Comment thereto. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 460. Appointment of expert by court

Where the advice of persons learned in the subject matter is required in order to enable the court to take judicial notice of a matter, the court on its own motion or on motion of any party may appoint one or more such persons to provide such advice. If the court determines to appoint such a person, he shall be appointed and compensated in the manner provided in Article 2 (commencing with Section 730) of Chapter 3 of Division 6.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Section 460 makes it clear that a court may appoint experts on matters that are subject to judicial notice when the advice of such persons is required in order to enable the court to take such notice. Such persons are to be appointed and compensated in the same manner as expert witnesses are appointed and compensated under the provisions of Evidence Code Sections 730–733. In the normal case, the parties may be expected to produce the advice of experts if it is needed. Section 460, however, enables the court to appoint experts in those cases where the advice of an expert not identified with a party seems desirable.

DIVISION 5. BURDEN OF PROOF; BURDEN OF PRODUCING EVIDENCE; PRESUMPTIONS AND INFERENCES

CHAPTER 1. BURDEN OF PROOF

ARTICLE 1. GENERAL

§ 500. Party who has the burden of proof

Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.

LAW REVISION COMMISSION COMMENT

As used in Section 500, the burden of proof means the obligation of a party to produce a particular state of conviction in the mind of the trier of fact as to the existence or nonexistence of a fact. See Evidence Code §§ 115, 190. If this requisite degree of conviction is not achieved as to the existence of a particular fact, the trier of fact must assume that the fact does not exist. Morgan, Basic Problems of Evidence 19 (1957); 9 Wigmore, Evidence § 2485 (3d ed. 1940). Usually, the burden of proof requires a party to convince the trier of fact that the existence of a particular fact is more probable than its nonexistence—a degree of proof usually described as proof by a preponderance of the evidence. Evidence Code § 115; Witkin, California Evidence § 59 (1958). However, in some instances, the burden of proof requires a party to produce a substantially greater degree of belief in the mind of the trier of fact concerning the existence of the fact—a burden usually described by stating that the party must introduce clear and convincing proof (Witkin, California Evidence § 60 (1958)) or, with respect to the prosecution in a criminal case, proof beyond a reasonable doubt (Penal Code § 1096).

The defendant in a criminal case sometimes has the burden of proof in regard to a fact essential to negate his guilt. However, in such cases, he usually is not required to persuade that trier of fact as to the existence of such fact; he is merely required to raise a reasonable doubt in the mind of the trier of fact as to his guilty. Evidence Code § 501; People v. Bushton, 80 Cal. 160, 22 Pac. 127 (1889). If the defendant produces no evidence concerning the fact, there is no issue on the matter to be decided by the jury; hence, the jury may be instructed that the nonexistence of the fact must be assumed. See, e.g., People v. Harmon, 89 Cal.App.2d 55, 58, 200 P.2d 32, 34 (1948) (prosecution for narcotics possession; jury instructed "that the burden of proof is upon the defendant that he possessed a written prescription and that in the absence of such evidence it must be assumed that he had no such prescription"). See also People v. Boo Doo Hong, 122 Cal. 606, 607, 55 Pac. 402, 403 (1898).

Section 1981 of the Code of Civil Procedure (superseded by Evidence Code Section 500) provides that the party holding the affirmative of the issue must produce the evidence to prove it and that the burden of proof lies on the party who would be defeated if no evidence were given on either side. This section has been criticized as establishing a meaningless standard:

The "affirmative of the issue" lacks any substantial objective meaning, and the allocation of the burden actually requires the application of several rules of practice and policy, not entirely consistent and not wholly reliable. [Witkin, California Evidence § 56 at 72–73 (1958).]

That the burden is on the party having the affirmative [or] that a party is not required to prove a negative ... is no more than a play on words, since practically any proposition may be stated in either affirmative or negative form. Thus a plaintiff's exercise of ordinary care equals absence of contributory negligence, in the minority of jurisdictions which place this element in plaintiff's case. In any event, the proposition seems simply not to be so. [Cleary, Presuming and Pleading: An Essay on Juristic Immaturity, 12 Stan.L.Rev. 5, 11 (1959).]

"The basic rule, which covers most situations, is that whatever facts a party must affirmatively plead he also has the burden of proving." Witkin, California Evidence § 56 at 73 (1958). Section 500 follows this basic rule. However, Section 500 is broader, applying to issues not necessarily raised in the pleadings.

Under Section 500, the burden of proof as to a particular fact is normally on the party to whose case the fact is essential. "[W]hen a party seeks relief the burden is upon him to prove his case, and he cannot depend wholly upon the failure of the defendant to prove his defenses." Cal. Employment Comm'n v. Malm, 59 Cal.App.2d 322, 323, 138 P.2d 744, 745 (1943). And, "as a general rule, the burden is on the defendant to prove new matter alleged as a defense ..., even though it requires the proof of a negative." Wilson v. California Cent. R.R., 94 Cal. 166, 172, 29 Pac. 861, 864 (1892).

Section 500 does not attempt to indicate what facts may be essential to a particular party's claim for relief or defense. The facts that must be shown to establish a cause of action or a defense are determined by the substantive law, not the law of evidence.

The general rule allocating the burden of proof applies "except as otherwise provided by law." The exception is included in recognition of the fact that the burden of proof is sometimes allocated in a manner that is at variance with the general rule. In determining whether the normal allocation of the burden of proof should be altered, the courts consider a number of factors: the knowledge of the parties concerning the particular fact, the availability of the evidence to the parties, the most desirable result in terms of public policy in the absence of proof of the particular fact, and the probability of the existence or nonexistence of the fact. In determining the incidence of the burden of proof, "the truth is that there is not and cannot be any one general solvent for all cases. It is merely a question of policy and fairness based on experience in the different situations." 9 Wigmore, Evidence § 2486 at 275 (3d ed. 1940).

Under existing California law, certain matters have been called "presumptions" even though they do not fall within the definition contained in Code of Civil Procedure Section 1959 (superseded by Evidence Code Section 600). Both Section 1959 and Evidence Code Section 600 define a presumption to be an assumption or conclusion of fact that the law requires to be drawn from the proof or establishment of some other fact. Despite the statutory definition, subdivisions 1 and 4 of Code of Civil Procedure Section 1963 (superseded by Sections 520 and 521 of the Evidence Code) provide presumptions that a person is innocent of crime or wrong and that a person exercises ordinary care for his own concerns. Similarly, some cases refer to a presumption of sanity. It is apparent that these so-called presumptions do not arise from the establishment or proof of a fact in the action. In fact, they are not presumptions at all but are preliminary allocations of the burden of proof in regard to the particular issue. This preliminary allocation of the burden of proof may be satisfied in particular cases by proof of a fact giving rise to a presumption that does affect the burden of proof. For example, the initial burden of proving negligence may be satisfied in a particular case by proof that undamaged goods were delivered to a bailee and that such goods were lost or damaged while in the bailee's possession. Upon such proof, the bailee would have the burden of proof as to his lack of negligence. George v. Bekins Van & Storage Co., 33 Cal.2d 834, 205 P.2d 1037 (1949). Cf. Com. Code § 7403.

Because the assumptions referred to above do not meet the definition of a presumption contained in Section 600, they are not continued in this code as presumptions. Instead, they appear in the next article in several sections allocating the burden of proof on specific issues. See Article 2 (Sections 520–522). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 501. Criminal actions; statutory assignment of burden of proof; controlling section

Insofar as any statute, except Section 522, assigns the burden of proof in a criminal action, such statute is subject to Penal Code Section 1096.

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A statute assigning the burden of proof may require the party to whom the burden is assigned to raise a reasonable doubt in the mind of the trier of fact or to persuade the trier of fact by a preponderance of evidence, by clear and convincing proof, or by proof beyond a reasonable doubt. See Evidence Code § 115.

Sections 520–522 (Which assign the burden of proof on specific issues) may, at times, assign the burden of proof to the defendant in a criminal action. Elsewhere in the codes are other sections that either specifically allocate the burden of proof to the defendant in a criminal action or have been construed to allocate the burden of proof to the defense. For example, Health and Safety Code Section 11721 provides specifically that, in a prosecution for the use of narcotics, it is the burden of the defense to show that the narcotics were administered by or under the direction of a person licensed to prescribe and administer narcotics. Health and Safety Code Section 11500, on the other hand, prohibits the possession of narcotics but provides an exception for narcotics possessed pursuant to a prescription. The courts have construed this section to place the burden of proof on the defense to show that the exception applies and that the narcotics were possessed pursuant to a prescription. People v. Marschalk, 206 Cal.App.2d 346, 23 Cal.Rptr. 743 (1962); People v. Bill, 140 Cal.App. 389, 392–394, 35 P.2d 645, 647–648 (1934).

Section 501 is intended to make it clear that the statutory allocations of the burden of proof appearing in this chapter and elsewhere in the codes are subject to Penal Code Section 1096, which requires that a criminal defendant be proved guilty beyond a reasonable doubt, i.e., that the statutory allocations do not (except on the issue of insanity) require the defendant to persuade the trier of fact of his innocence. Under Evidence Code Section 522, as under existing law, the defendant must prove his insanity by a preponderance of the evidence. People v. Daugherty, 40 Cal.2d 876, 256 P.2d 911 (1953). However, where a statute allocates the burden of proof to the defendant on any other issue relating to the defendant's guilt, the defendant's burden, as under existing law, is merely to raise a reasonable doubt as to his guilt. People v. Bushton, 80 Cal. 160, 22 Pac. 127 (1889). Section 501 also makes it clear that, when a statute assigns the burden of proof to the prosecution in a criminal action, the prosecution must discharge that burden by proof beyond a reasonable doubt. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 502. Instructions on burden of proof

The court on all proper occasions shall instruct the jury as to which party bears the burden of proof on each issue and as to whether that burden requires that a party raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt.

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Section 502 supersedes subdivision 5 of Code of Civil Procedure Section 2061. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

ARTICLE 2. BURDEN OF PROOF ON SPECIFIC ISSUES

§ 520. Claim that person guilty of crime or wrongdoing

The party claiming that a person is guilty of crime or wrongdoing has the burden of proof on that issue.

§ 521. Claim that person did not exercise care

The party claiming that a person did not exercise a requisite degree of care has the burden of proof on that issue.

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Section 521 supersedes the presumption in subdivision 4 of Code of Civil Procedure Section 1963. Under existing law, the presumption is considered "evidence"; while under the Evidence Code, it is not. See Evidence Code § 600 and the Comment thereto. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 522. Claim that person is or was insane

The party claiming that any person, including himself, is or was insane has the burden of proof on that issue.

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Section 522 codifies an allocation of the burden of proof that is frequently referred to in the cases as a presumption. See, e.g., People v. Daugherty, 40 Cal.2d 876, 899, 256 P.2d 911, 925–926 (1953). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 523. Historic locations of water; claims involving state land patents or grants

In any action where the state is a party, regardless of who is the moving party, where (a) the boundary of land patented or otherwise granted by the state is in dispute, or (b) the validity of any state patent or grant dated prior to 1950 is in dispute, the state shall have the burden of proof on all issues relating to the historic locations of rivers, streams, and other water bodies and the authority of the state in issuing the patent or grant.

This section is not intended to nor shall it be construed to supersede existing statutes governing disputes where the state is a party and regarding title to real property.

§ 524. Burden of proof in cases involving State Board of Equalization; unreasonable search or access to records prohibited; taxpayer defined

(a) Notwithstanding any other provision of law, in a civil proceeding to which the State Board of Equalization is a party, that board shall have the burden of proof by clear and convincing evidence in sustaining its assertion of a penalty for intent to evade or fraud against a taxpayer, with respect to any factual issue relevant to ascertaining the liability of a taxpayer.

(b) Nothing in this section shall be construed to override any requirement for a taxpayer to substantiate any item on a return or claim filed with the State Board of Equalization.

(c) Nothing in this section shall subject a taxpayer to unreasonable search or access to records in violation of the United States Constitution, the California Constitution, or any other law.

(d) For purposes of this section, "taxpayer" includes a person on whom fees administered by the State Board of Equalization are imposed.

CHAPTER 2. BURDEN OF PRODUCING EVIDENCE

§ 550. Party who has the burden of producing evidence

(a) The burden of producing evidence as to a particular fact is on the party against whom a finding on that fact would be required in the absence of further evidence.

(b) The burden of producing evidence as to a particular fact is initially on the party with the burden of proof as to that fact.

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Section 550 deals with the allocation of the burden of producing evidence. At the outset of the case, this burden will coincide with the burden of proof. 9 Wigmore, Evidence § 2487 at 279 (3d ed. 1940). However, during the course of the trial, the burden may shift from one party to another, irrespective of the incidence of the burden of proof. For example, if the party with the initial burden of producing evidence establishes a fact giving rise to a presumption, the burden of producing evidence will shift to the other party, whether or not the presumption is one that affects the burden of proof. In addition, a party may introduce evidence of such overwhelming probative force that no person could reasonably disbelieve it in the absence of countervailing evidence, in which case the burden of producing evidence would shift to the opposing party to produce some evidence. These principles are in accord with well-settled California law. See Discussion in Witkin, California Evidence §§ 53–56 (1958). See also 9 Wigmore, Evidence § 2487 (3d ed. 1940). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

CHAPTER 3. PRESUMPTIONS AND INFERENCES

ARTICLE 1. GENERAL

§ 600. Presumption and inference defined

(a) A presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action. A presumption is not evidence.

(b) An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

The definition of a presumption in Section 600 is substantially the same as that contained in Code of Civil Procedure Section 1959: "A presumption is a deduction which the law expressly directs to be made from particular facts." Section 600 was derived from Rule 13 of the Uniform Rules of Evidence and supersedes Code of Civil Procedure Section 1959.

The second sentence of subdivision (a) may be unnecessary in light of the definition of "evidence" in Section 140—"testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact." Presumptions, then, are not "evidence" but are conclusions that the law requires to be drawn (in the absence of a sufficient contrary showing) when some other fact is proved or otherwise established in the action.

Nonetheless, the second sentence has been added here to repudiate specifically the rule of Smellie v. Southern Pac. Co., 212 Cal. 540, 299 Pac. 529 (1931). That case held that a presumption is evidence that must be weighed against conflicting evidence; and in Scott v. Burke, 39 Cal.2d 388, 247 P.2d 313 (1952), the Supreme Court held that conflicting presumptions must be weighed against each other. These decisions require the jury to perform an intellectually impossible task. The jury is required to weigh the testimony of witnesses and other evidence as to the circumstances of a particular event against the fact that the law requires an opposing conclusion in the absence of contrary evidence and to determine which "evidence" is of greater probative force. Or else, the jury is required to accept the fact that the law requires two opposing conclusions and to determine which required conclusion is of greater probative force.

Moreover, the doctrine that a presumption is evidence imposes upon the party with the burden of proof a much higher burden of proof than is warranted. For example, if a party with the burden of proof has a presumption invoked against him and if the presumption remains in the case as evidence even though the jury believes that he has produced a preponderance of the evidence, the effect is that he must produce some additional but unascertainable quantum of proof in order to dispel the effect of the presumption. See Scott v. Burke, 39 Cal.2d 388, 405–406, 247 P.2d 313, 323–324 (1952) (dissenting opinion). The doctrine that a presumption is evidence gives no guidance to the jury or to the parties as to the amount of this additional proof. The most that should be expected of a party in a civil case is that he prove his case by a preponderance of the evidence (unless some specific presumption or rule of law requires proof of a particular issue by clear and convincing evidence). The most that should be expected of the prosecution in a criminal case is that it establish the defendant's guilt beyond a reasonable doubt. To require some additional quantum of proof, unspecified and uncertain in amount, to dispel a presumption which persists as evidence in the case unfairly weights the scales of justice against the party with the burden of proof.

To avoid the confusion engendered by the doctrine that a presumption is evidence, this code describes "evidence" as the matters presented in judicial proceedings and uses presumptions solely as devices to aid in determining the facts from the evidence presented.

The definition of "inference" in subdivision (b) restates in substance the definition contained in Code of Civil Procedure Sections 1958 and 1960. Under the Evidence Code, an inference is not itself evidence; it is the result of reasoning from evidence.

In the sections that follow, the Evidence Code classifies presumptions and lists a number of specific presumptions. Some presumptions that have been listed in the Code of Civil Procedure have not been listed as presumptions in the Evidence Code. But the fact that a statutory presumption has been repealed will not preclude the drawing of any appropriate inferences from the facts that would have given rise to the presumption. And, in appropriate cases, the court may instruct the jury on the propriety of drawing particular inferences.

§ 601. Classification of presumptions

A presumption is either conclusive or rebuttable. Every rebuttable presumption is either (a) a presumption affecting the burden of producing evidence or (b) a presumption affecting the burden of proof.

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Under existing law, some presumptions are conclusive. The court or jury is required to find the existence of the presumed fact regardless of the strength of the opposing evidence. The conclusive presumptions are specified in Section 1962 of the Code of Civil Procedure (superseded by Article 2 (Sections 620–624) of this chapter).

Under existing law, too, all presumptions that are not conclusive are rebuttable presumptions. Code Civ.Proc. § 1961 (superseded by Evidence Code § 601). However, the existing statutes make no attempt to classify the rebuttable presumptions.

For several decades, courts and legal scholars have wrangled over the purpose and function of presumptions. The view espoused by Professors Thayer (Thayer, Preliminary Treatise on Evidence 313–352 (1898)) and Wigmore (9 Wigmore, Evidence §§ 2485–2491 (3d ed. 1940)), accepted by most courts (see Morgan, Presumptions, 10 Rutgers L.Rev. 512, 516 (1956)), and adopted by the American Law Institute's Model Code of Evidence, is that a presumption is a preliminary assumption of fact that disappears from the case upon the introduction of evidence sufficient to sustain a finding of the nonexistence of the presumed fact. In Professor Thayer's view, a presumption merely reflects the judicial determination that the same conclusionary fact exists so frequently when the preliminary fact exists that, once the preliminary fact is established, proof of the conclusionary fact may be dispensed with unless there is actually some contrary evidence:

Many facts and groups of facts often recur, and when a body of men with a continuous tradition has carried on for some length of time this process of reasoning upon facts that often repeat themselves, they cut short the process and lay down a rule. To such facts they affix, by a general declaration, the character and operation which common experience has assigned to them. [Thayer, Preliminary Treatise on Evidence 326 (1898).]

Professors Morgan and McCormick argue that a presumption should shift the burden of proof to the adverse party. Morgan, Some Problems of Proof 81 (1956); McCormick, Evidence § 317 at 671–672 (1954). They believe that presumptions are created for reasons of policy and argue that, if the policy underlying a presumption is of sufficient weight to require a finding of the presumed fact when there is no contrary evidence, it should be of sufficient weight to require a finding when the mind of the trier of fact is in equilibrium, and, a fortiori, it should be of sufficient weight to require a finding if the trier of fact does not believe the contrary evidence.

The classification of presumptions in the Evidence Code is based on a third view suggested by Professor Bohlen in 1920. Bohlen, The Effect of Rebuttable Presumptions of Law Upon the Burden of Proof, 68 U.Pa.L.Rev. 307 (1920). Underlying the presumptions provisions of the Evidence Code is the conclusion that the Thayer view is correct as to some presumptions, but that the Morgan view is right as to others. The fact is that presumptions are created for a variety of reasons, and no single theory or rationale of presumptions can deal adequately with all of them. Hence, the Evidence Code classifies all rebuttable presumptions as either (1) presumptions affecting the burden of producing evidence (essentially Thayer presumptions), or (2) presumptions affecting the burden of proof (essentially Morgan presumptions).

Sections 603 and 605 set forth the criteria by which the two classes of rebuttable presumptions may be distinguished, and Sections 604, 606, and 607 prescribe their effect. Articles 3 and 4 (Sections 630–668) classify many presumptions found in California law; but many other presumptions, both statutory and common law, must await classification by the courts in accordance with the criteria contained in Sections 603 and 605.

The classification scheme contained in the Evidence Code follows a distinction that appears in the California cases. Thus, for example, the courts have at times held that presumptions do not affect the burden of proof. Estate of Eakle, 33 Cal.App.2d 379, 91 P.2d 954 (1939) (presumption of undue influence); Valentine v. Provident Mut. Life Ins. Co., 12 Cal.App.2d 616, 55 P.2d 1243 (1936) (presumption of death from seven years' absence). And at other times the courts have held that certain presumptions do affect the burden of proof. Estate of Nickson, 187 Cal. 603, 203 Pac. 106 (1921) ("clear and convincing proof" required to overcome presumption of community property); Estate of Walker, 180 Cal. 478, 181 Pac. 792 (1919) ("clear and satisfactory proof" required to overcome presumption of legitimacy). The cases have not, however, explicitly recognized the distinction, nor have they applied it consistently. Compare Estate of Eakle, supra (presumption of undue influence does not affect burden of proof), with Estate of Witt, 198 Cal. 407, 245 Pac. 197 (1926) (presumption of undue influence must be overcome with "the clearest and most satisfactory evidence"). The Evidence Code clarifies the law relating to presumptions by identifying the distinguishing factors, and it provides a measure of certainty by classifying a number of specific presumptions. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 602. Statute making one fact prima facie evidence of another fact

A statute providing that a fact or group of facts is prima facie evidence of another fact establishes a rebuttable presumption.

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Section 602 indicates the construction to be given to the large number of statutes scattered through the codes that state that one fact or group of facts is prima facie evidence of another fact. See, e.g., Agric.Code § 18, Com.Code § 1202, Rev. & Tax.Code § 6714. In some instances, these statutes have been enacted for reasons of public policy that require them to be treated as presumptions affecting the burden of proof. See People v. Schwartz, 31 Cal.2d 59, 63, 187 P.2d 12, 14 (1947); People v. Mahoney, 13 Cal.2d 729, 732–733, 91 P.2d 1029, 1030–1031 (1939). It seems likely, however, that in many instances such statutes are not intended to affect the burden of proof but only the burden of producing evidence. Section 602 provides that these statutes are to be regarded as rebuttable presumptions. Hence, unless some specific language applicable to the particular statute in question indicates whether it affects the burden of proof or only the burden of producing evidence, the courts will be required to classify these statutes as presumptions affecting the burden of proof or the burden of producing evidence in accordance with the criteria set forth in Sections 603 and 605. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 603. Presumption affecting the burden of producing evidence defined

A presumption affecting the burden of producing evidence is a presumption established to implement no public policy other than to facilitate the determination of the particular action in which the presumption is applied.

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Sections 603 and 605 set forth the criteria for determining whether a particular presumption is a presumption affecting the burden of producing evidence or a presumption affecting the burden of proof. Many presumptions are classified in Articles 3 and 4 (Sections 630–668) of this chapter. In the absence of specific statutory classification, the courts may determine whether a presumption is a presumption affecting the burden of producing evidence or a presumption affecting the burden of proof by applying the standards contained in Sections 603 and 605.

Section 603 describes those presumptions that are not based on any public policy extrinsic to the action in which they are invoked. These presumptions are designed to dispense with unnecessary proof of facts that are likely to be true if not disputed. Typically, such presumptions are based on an underlying logical inference. In some cases, the presumed fact is so likely to be true and so little likely to be disputed that the law requires it to be assumed in the absence of contrary evidence. In other cases, evidence of the nonexistence of the presumed fact, if there is any, is so much more readily available to the party against whom the presumption operates that he is not permitted to argue that the presumed fact does not exist unless he is willing to produce such evidence. In still other cases, there may be no direct evidence of the existence or nonexistence of the presumed fact; but, because the case must be decided, the law requires a determination that the presumed fact exists in light of common experience indicating that it usually exists in such cases. Cf. Bohlen, Studies in the Law of Torts 644 (1926). Typical of such presumptions are the presumption that a mailed letter was received (Section 641) and presumptions relating to the authenticity of documents (Sections 643–645).

The presumptions described in Section 603 are not expressions of policy; they are expressions of experience. They are intended solely to eliminate the need for the trier of fact to reason from the proven or established fact to the presumed fact and to forestall argument over the existence of the presumed fact when there is no evidence tending to prove the nonexistence of the presumed fact. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 604. Effect of presumption affecting burden of producing evidence

The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Section 604 describes the manner in which a presumption affecting the burden of producing evidence operates. Such a presumption is merely a preliminary assumption in the absence of contrary evidence, i.e., evidence sufficient to sustain a finding of the nonexistence of the presumed fact. If contrary evidence is introduced, the trier of fact must weigh the inferences arising from the facts that gave rise to the presumption against the contrary evidence and resolve the conflict. For example, if a party proves that a letter was mailed, the trier of fact is required to find that the letter was received in the absence of any believable contrary evidence. However, if the adverse party denies receipt, the presumption is gone from the case. The trier of fact must then weigh the denial of receipt against the inference of receipt arising from proof of mailing and decide whether or not the letter was received.

If a presumption affecting the burden of producing evidence is relied on, the judge must determine whether there is evidence sufficient to sustain a finding of the nonexistence of the presumed fact. If there is such evidence, the presumption disappears and the judge need say nothing about it in his instructions. If there is not evidence sufficient to sustain a finding of the nonexistence of the presumed fact, the judge should instruct the jury concerning the presumption. If the basic fact from which the presumption arises is established (by the pleadings, by stipulation, by judicial notice, etc.) so that the existence of the basic fact is not a question of fact for the jury, the jury should be instructed that the presumed fact is also established. If the basic fact is a question of fact for the jury, the judge should charge the jury that, if it finds the basic fact, the jury must also find the presumed fact. Morgan, Basic Problems of Evidence 36–38 (1957).

Of course, in a criminal case, the jury has the power to disregard the judge's instructions and find a defendant guilty of a lesser crime than that shown by the evidence or acquit a defendant despite the facts established by the undisputed evidence. Cf. People v. Powell, 34 Cal.2d 196, 208 P.2d 974 (1949); Pike, What Is Second Degree Murder in California?, 9 So.Cal.L.Rev. 112, 128–132 (1936). Nonetheless, the jury should be instructed on the rules of law applicable, including those rules of law called presumptions. The fact that the jury may choose to disregard the applicable rules of law should not affect the nature of the instructions given. See People v. Lem You, 97 Cal. 224, 32 Pac. 11 (1893); People v. Macken, 32 Cal.App.2d 31, 89 P.2d 173 (1939).

§ 605. Presumption affecting the burden of proof defined

A presumption affecting the burden of proof is a presumption established to implement some public policy other than to facilitate the determination of the particular action in which the presumption is applied, such as the policy in favor of establishment of a parent and child relationship, the validity of marriage, the stability of titles to property, or the security of those who entrust themselves or their property to the administration of others.

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Section 605 describes a presumption affecting the burden of proof. Such presumptions are established in order to carry out or to effectuate some public policy other than or in addition to the policy of facilitating the trial of actions.

Frequently, presumptions affecting the burden of proof are designed to facilitate determination of the action in which they are applied. Superficially, therefore, such presumptions may appear merely to be presumptions affecting the burden of producing evidence. What makes a presumption one affecting the burden of proof is the fact that there is always some further reason of policy for the establishment of the presumption. It is the existence of this further basis in policy that distinguishes a presumption affecting the burden of proof from a presumption affecting the burden of producing evidence. For example, the presumption of death from seven years' absence (Section 667) exists in part to facilitate the disposition of actions by supplying a rule of thumb to govern certain cases in which there is likely to be no direct evidence of the presumed fact. But the policy in favor of distributing estates, of settling titles, and of permitting life to proceed normally at some time prior to the expiration of the absentee's normal life expectancy (perhaps 30 or 40 years) that underlies the presumption indicates that it should be a presumption affecting the burden of proof.

Frequently, too, a presumption affecting the burden of proof will have an underlying basis in probability and logical inference. For example, the presumption of the validity of a ceremonial marriage may be based in part on the probability that most marriages are valid. However, an underlying logical inference is not essential. In fact, the lack of an underlying inference is a strong indication that the presumption affects the burden of proof. Only the needs of public policy can justify the direction of a particular assumption that is not warranted by the application of probability and common experience to the known facts. Thus, the total lack of any inference underlying the presumption of the negligence of an employer that arises from his failure to secure the payment of workmen's compensation (Labor Code § 3708) is a clear indication that the presumption is based on public policy and affects the burden of proof. Similarly, the fact that the presumption of death from seven years' absence may conflict directly with the logical inference that life continues for its normal expectancy is an indication that the presumption is based on public policy and, hence, affects the burden of proof. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 606. Effect of presumption affecting burden of proof

The effect of a presumption affecting the burden of proof is to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Section 606 describes the manner in which a presumption affecting the burden of proof operates. In the ordinary case, the party against whom it is invoked will have the burden of proving the nonexistence of the presumed fact by a preponderance of the evidence. Certain presumptions affecting the burden of proof may be overcome only by clear and convincing proof. When such a presumption is relied on, the party against whom the presumption operates will have a heavier burden of proof and will be required to persuade the trier of fact of the nonexistence of the presumed fact by proof " 'sufficiently strong to command the unhesitating assent of every reasonable mind.' " Sheehan v. Sullivan, 126 Cal. 189, 193, 58 Pac. 543, 544 (1899).

If the party against whom the presumption operates already has the same burden of proof as to the nonexistence of the presumed fact that is assigned by the presumption, the presumption can have no effect on the case and no instruction in regard to the presumption should be given. See Speck v. Sarver, 20 Cal.2d 585, 590, 128 P.2d 16, 19 (1942) (dissenting opinion by Traynor, J.); Morgan, Instructing the Jury Upon Presumptions and Burden of Proof, 47 Harv.L.Rev. 59, 69 (1933). If the evidence is not sufficient to sustain a finding of the nonexistence of the presumed fact, the judge's instructions will be the same as if the presumption were merely a presumption affecting the burden of producing evidence. See the Comment to Section 604. If there is evidence of the nonexistence of the presumed fact, the judge should instruct the jury on the manner in which the presumption affects the factfinding process. If the basic fact from which the presumption arises is so established that the existence of the basic fact is not a question of fact for the jury (as, for example, by the pleadings, by judicial notice, or by stipulation of the parties), the judge should instruct the jury that the existence of the presumed fact is to be assumed until the jury is persuaded to the contrary by the requisite degree of proof (proof by a preponderance of the evidence, clear and convincing proof, etc.). See McCormick, Evidence § 317 at 672 (1954). If the basic fact is a question of fact for the jury, the judge should instruct the jury that, if it finds the basic fact, it must also find the presumed fact unless persuaded of the nonexistence of the presumed fact by the requisite degree of proof. Morgan, Basic Problems of Evidence 38 (1957).

In a criminal case, a presumption affecting the burden of proof may be relied upon by the prosecution to establish an element of the crime with which the defendant is charged. The effect of the presumption on the factfinding process and the nature of the instructions in such a case are described in Section 607 and the Comment thereto. On other issues, a presumption affecting the burden of proof will have the same effect in a criminal case as it does in a civil case, and the instructions will be the same.

§ 607. Effect of certain presumptions in a criminal action

When a presumption affecting the burden of proof operates in a criminal action to establish presumptively any fact that is essential to the defendant's guilt, the presumption operates only if the facts that give rise to the presumption have been found or otherwise established beyond a reasonable doubt and, in such case, the defendant need only raise a reasonable doubt as to the existence of the presumed fact.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

If a presumption affecting the burden of proof is relied upon by the prosecution in a criminal case to establish a fact essential to the defendant's guilt, the defendant will not be required to overcome the presumption by clear and convincing evidence or even by a preponderance of the evidence; the defendant will be required merely to raise a reasonable doubt as to the existence of the presumed fact. This is the effect of a presumption in a criminal case under existing law. People v. Hardy, 33 Cal.2d 52, 198 P.2d 865 (1948); People v. Scott, 24 Cal.2d 774, 151 P.2d 517 (1944); People v. Agnew, 16 Cal.2d 655, 107 P.2d 601 (1940).

Instructions in criminal cases on presumptions affecting the burden of proof will be similar to the instructions given on presumptions and on issues where the defendant has the burden of proof under existing law. Where no evidence has been introduced to show the nonexistence of the presumed fact, the court should instruct the jury that, if it finds beyond a reasonable doubt the facts giving rise to the presumption, it should also find the presumed fact. Where some evidence of the nonexistence of the presumed fact has been introduced, the court should instruct the jury that, if it finds beyond a reasonable doubt the facts giving rise to the presumption, it should also find the presumed fact unless the contrary evidence has raised a reasonable doubt as to the existence of the presumed fact. Cf. People v. Hardy, 33 Cal.2d 52, 63–64, 198 P.2d 865, 871–872 (1948); People v. Agnew, 16 Cal.2d 655, 661–667, 107 P.2d 601, 603–607 (1940); People v. Martina, 140 Cal.App.2d 17, 25, 294 P.2d 1015, 1019 (1956). The judge must be careful to specify that a presumption is rebutted by any evidence that raises a reasonable doubt as to the presumed fact. In the absence of this qualification, the jury may be led to believe that the defendant has the burden of disproof of the presumed fact by a preponderance of the evidence and the instruction will be erroneous. People v. Agnew, 16 Cal.2d 655, 107 P.2d 601 (1940). Cf. People v. Hardy, 33 Cal.2d 52, 198 P.2d 865 (1948).

Of course, in a criminal case, the jury may choose to disregard the instructions relating to presumptions. But this should not affect the duty of the court to instruct the jury on the rules of law, including presumptions, applicable to the case. See the Comment to Section 604.

Section 607 does not apply to the "presumption" of sanity. Under the Evidence Code, the burden of proof on the issue of sanity is allocated by Section 522, and there is no "presumption" of sanity. See Evidence Code § 522 and the Comment thereto. Hence, notwithstanding the provisions of Section 607, a defendant who pleads insanity has the burden of proving by a preponderance of the evidence that he was insane. See the Comment to Section 501.

ARTICLE 2. CONCLUSIVE PRESUMPTIONS

§ 620. Conclusive presumptions

The presumptions established by this article, and all other presumptions declared by law to be conclusive, are conclusive presumptions.

LAW REVISION COMMISSION COMMENT

This article supersedes and continues in effect without substantive change the provisions of subdivisions 2, 3, 4, and 5 of Section 1962 of the Code of Civil Procedure. Other statutes not listed in this article also provide conclusive presumptions. See, e.g., Civil Code § 3440. There may also be a few nonstatutory conclusive presumptions. See Witkin, California Evidence § 63 (1958).

Conclusive presumptions are not evidentiary rules so much as they are rules of substantive law. Hence, the Commission has not recommended any substantive revision of the conclusive presumptions contained in this article. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 621. Repealed by Stats.1992, c. 162 (A.B.2650), § 8, operative Jan. 1, 1994

§ 621.1. Repealed by Stats.1993, c. 219 (A.B.1500), § 76

Repeal

Former Section 621.1 was without substantive change continued in Family Code Sections 20100–20104 (paternity pilot projects). See 1993 Cal. Stat. ch. 219, § 211. Family Code Sections 20100–20104 have been superseded by Family Code Sections 7570–7577. See 1993 Cal. Stat. ch. 1240. [23 Cal.L.Rev.Comm. Reports 1 (1993)]

LAW REVISION COMMISSION COMMENT

Repeal

Former Section 621.1 was without substantive change continued in Family Code Sections 20100–20104 (paternity pilot projects). See 1993 Cal. Stat. ch. 219, § 211. Family Code Sections 20100–20104 have been superseded by Family Code Sections 7570–7577. See 1993 Cal. Stat. ch. 1240. [23 Cal.L.Rev.Comm. Reports 1 (1993)]

§ 622. Facts recited in written instrument

The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest; but this rule does not apply to the recital of a consideration.

§ 623. Estoppel by own statement or conduct

Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.

§ 624. Estoppel of tenant to deny title of landlord

A tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation.

ARTICLE 3. PRESUMPTIONS AFFECTING THE BURDEN OF PRODUCING EVIDENCE

§ 630. Presumptions affecting the burden of producing evidence

The presumptions established by this article, and all other rebuttable presumptions established by law that fall within the criteria of Section 603, are presumptions affecting the burden of producing evidence.

LAW REVISION COMMISSION COMMENT

Article 3 sets forth a list of presumptions, recognized in existing law, that are classified here as presumptions affecting the burden of producing evidence. The list is not exhaustive. Other presumptions affecting the burden of producing evidence may be found in other codes. Others will be found in the common law. Specific statutes will classify some of these, but some must await classification by the courts. The list here, however, will eliminate any uncertainty as to the proper classification for the presumptions in this article. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 631. Money delivered by one to another

Money delivered by one to another is presumed to have been due to the latter.

§ 632. Thing delivered by one to another

A thing delivered by one to another is presumed to have belonged to the latter.

§ 633. Obligation delivered up to the debtor

An obligation delivered up to the debtor is presumed to have been paid.

§ 634. Person in possession of order on self

A person in possession of an order on himself for the payment of money, or delivery of a thing, is presumed to have paid the money or delivered the thing accordingly.

§ 635. Obligation possessed by creditor

An obligation possessed by the creditor is presumed not to have been paid.

§ 636. Payment of earlier rent or installments

The payment of earlier rent or installments is presumed from a receipt for later rent or installments.

§ 637. Ownership of things possessed

The things which a person possesses are presumed to be owned by him.

§ 638. Property ownership acts

A person who exercises acts of ownership over property is presumed to be the owner of it.

LAW REVISION COMMISSION COMMENT

Section 638 restates and supersedes the presumption found in subdivision 12 of Code of Civil Procedure Section 1963. Subdivision 12 of Code of Civil Procedure Section 1963 provides that a presumption of ownership arises from common reputation of ownership. This is inaccurate, however, for common reputation is not admissible to prove private title to property. Berniaud v. Beecher, 76 Cal. 394, 18 Pac. 598 (1888); Simons v. Inyo Cerro Gordo Co., 48 Cal.App. 524, 192 Pac. 144 (1920). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 639. Judgment correctly determines rights of parties

A judgment, when not conclusive, is presumed to correctly determine or set forth the rights of the parties, but there is no presumption that the facts essential to the judgment have been correctly determined.

LAW REVISION COMMISSION COMMENT

Section 639 restates and supersedes the presumption found in subdivision 17 of Code of Civil Procedure Section 1963. The presumption involved here is that the judgment correctly determines that one party owes another money, or that the parties are divorced, or their marriage has been annulled, or any similar rights of the parties. The presumption does not apply to the facts underlying the judgment. For example, a judgment of annulment is presumed to determine correctly that the marriage is void. Clark v. City of Los Angeles, 187 Cal.App.2d 792, 9 Cal.Rptr. 913 (1960). However, the judgment may not be used to establish presumptively that one of the parties was guilty of fraud as against some third party who is not bound by the judgment.

In a few cases, a judgment may be used as evidence of the facts necessarily determined by the judgment. See, e.g., Evidence Code §§ 1300–1302. But, even in those cases, the judgments do not presumptively establish the facts determined; they are merely evidence. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 640. Writing truly dated

A writing is presumed to have been truly dated.

§ 641. Letter received in ordinary course of mail

A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.

§ 642. Conveyance by person having duty to convey real property

A trustee or other person, whose duty it was to convey real property to a particular person, is presumed to have actually conveyed to him when such presumption is necessary to perfect title of such person or his successor in interest.

§ 643. Authenticity of ancient document

A deed or will or other writing purporting to create, terminate, or affect an interest in real or personal property is presumed to be authentic if it:

(a) Is at least 30 years old;

(b) Is in such condition as to create no suspicion concerning its authenticity;

(c) Was kept, or if found was found, in a place where such writing, if authentic, would be likely to be kept or found; and

(d) Has been generally acted upon as authentic by persons having an interest in the matter.

LAW REVISION COMMISSION COMMENT

Section 643 restates and supersedes the presumption found in subdivision 34 of Code of Civil Procedure Section 1963. Although the statement of the ancient documents rule in Section 1963 requires the document to have been acted upon as if genuine before the presumption applies, some recent cases have not insisted upon this requirement. Estate of Nidever, 181 Cal.App.2d 367, 5 Cal.Rptr. 343 (1960); Kirkpatrick v. Tapo Oil Co., 144 Cal.App.2d 404, 301 P.2d 274 (1956). The requirement that the document be acted upon as genuine is, in substance, a requirement of the possession of property by those persons who would be entitled to such possession under the document if it were genuine. See 7 Wigmore, Evidence §§ 2141, 2146 (3d ed. 1940); Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article IX. Authentication and Content of Writings), 6 Cal. Law Revision Comm'n, Rep., Rec. & Studies 101, 135–137 (1964). Giving the ancient documents rule a presumptive effect—i.e., requiring a finding of the authenticity of an ancient document—seems justified when it is a dispositive instrument and the persons interested in the matter have acted upon the instrument for a period of at least 30 years as if it were genuine. Evidence which is not of this strength may be sufficient in particular cases to warrant an inference of genuineness and thus justify the admission of the document into evidence, but the presumption should be confined to those cases where the evidence of genuineness is not likely to be disputed. See 7 Wigmore, Evidence § 2146 (3d ed. 1940). Accordingly, Section 643 limits the presumptive application of the ancient documents rule to dispositive instruments. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 644. Book purporting to be published by public authority

A book, purporting to be printed or published by public authority, is presumed to have been so printed or published.

§ 645. Book purporting to contain reports of cases

A book, purporting to contain reports of cases adjudged in the tribunals of the state or nation where the book is published, is presumed to contain correct reports of such cases.

§ 645.1. Printed materials purporting to be particular newspaper or periodical

Printed materials, purporting to be a particular newspaper or periodical, are presumed to be that newspaper or periodical if regularly issued at average intervals not exceeding three months.

§ 646. Res ipsa loquitur; instruction

(a) As used in this section, "defendant" includes any party against whom the res ipsa loquitur presumption operates.

(b) The judicial doctrine of res ipsa loquitur is a presumption affecting the burden of producing evidence.

(c) If the evidence, or facts otherwise established, would support a res ipsa loquitur presumption and the defendant has introduced evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence, the court may, and upon request shall, instruct the jury to the effect that:

(1) If the facts which would give rise to a res ipsa loquitur presumption are found or otherwise established, the jury may draw the inference from such facts that a proximate cause of the occurrence was some negligent conduct on the part of the defendant; and

(2) The jury shall not find that a proximate cause of the occurrence was some negligent conduct on the part of the defendant unless the jury believes, after weighing all the evidence in the case and drawing such inferences therefrom as the jury believes are warranted, that it is more probable than not that the occurrence was caused by some negligent conduct on the part of the defendant.

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1970 Addition

Section 646 is designed to clarify the manner in which the doctrine of res ipsa loquitur functions under the provisions of the Evidence Code relating to presumptions.

The doctrine of res ipsa loquitur, as developed by the California courts, is applicable in an action to recover damages for negligence when the plaintiff establishes three conditions:

First, that it is the kind of [accident] [injury] which ordinarily does not occur in the absence of someone's negligence;

Second, that it was caused by an agency or instrumentality in the exclusive control of the defendant [originally, and which was not mishandled or otherwise changed after defendant relinquished control]; and

Third, that the [accident] [injury] was not due to any voluntary action or contribution on the part of the plaintiff which was the responsible cause of his injury [BAJI (5th ed.1969) No. 4.00 (brackets in original).]

This section provides that the doctrine of res ipsa loquitur is a presumption affecting the burden of producing evidence. Therefore, when the plaintiff has established the three conditions that give rise to the doctrine, the jury is required to find that the accident resulted from the defendant's negligence unless the defendant comes forward with evidence that would support a contrary finding. EVIDENCE CODE 604. If evidence is produced that would support a finding that the defendant was not negligent or that any negligence on his part was not a proximate cause of the accident, the presumptive effect of the doctrine vanishes. However, the jury may still be able to draw an inference that the accident was caused by the defendant's lack of due care from the facts that gave rise to the presumption. See EVIDENCE CODE § 604 and the Comment thereto. In rare cases, the defendant may produce such conclusive evidence that the inference of negligence is dispelled as a matter of law. See, e.g., Leonard v. Watsonville Community Hosp., 47 Cal.2d 509, 305 P.2d 36 (1956). But, except in such a case, the facts giving rise to the doctrine will support an inference of negligence even after its presumptive effect has disappeared.

To assist the jury in the performance of its factfinding function, the court may instruct that the facts that give rise to res ipsa loquitur are themselves circumstantial evidence from which the jury can infer that the accident resulted from the defendant's failure to exercise due care. This section requires the court to give such an instruction when a party so requests. Whether the jury should so find will depend on whether the jury believes that the probative force of the circumstantial and other evidence of the defendant's negligence exceeds the probative force of the contrary evidence and, therefore, that it is more probable than not that the accident resulted from the defendant's negligence.

At times the doctrine of res ipsa loquitur will coincide in a particular case with another presumption or with another rule of law that requires the defendant to discharge the burden of proof on the issue. See Prosser, Res Ipsa Loquitur in California, 37 Cal.L.Rev. 183 (1949). In such cases the defendant will have the burden of proof on issues where res ipsa loquitur appears to apply. But because of the allocation of the burden of proof to the defendant, the doctrine of res ipsa loquitur will serve no function in the disposition of the case. However, the facts that would give rise to the doctrine may nevertheless be used as circumstantial evidence tending to rebut the evidence produced by the party with the burden of proof.

For example, a bailee who has received undamaged goods and returns damaged goods has the burden of proving that the damage was not caused by his negligence unless the damage resulted from a fire. See discussion in Redfoot v. J. T. Jenkins Co., 138 Cal.App.2d 108, 112, 291 P.2d 134, 135 (1955). See Com. Code § 7403(1) (b). When the defendant has produced evidence of his exercise of care in regard to the bailed goods, the facts that would give rise to the doctrine of res ipsa loquitur may be weighed against the evidence produced by the defendant in determining whether it is more likely than not that the goods were damaged without fault on the part of the bailee. But because the bailee has both the burden of producing evidence and the burden of proving that the damage was not caused by his negligence, the presumption of negligence arising from res ipsa loquitur cannot have any effect on the proceeding. Effect of the Failure of the Plaintiff to Establish All the Preliminary Facts That Give Rise to the Presumption.

The fact that the plaintiff fails to establish all of the facts giving rise to the res ipsa presumption does not necessarily mean that he has not produced sufficient evidence of negligence to sustain a jury finding in his favor. The requirements of res ipsa loquitur are merely those that must be met to give rise to a compelled conclusion (or presumption) of negligence in the absence of contrary evidence. An inference of negligence may well be warranted from all of the evidence in the case even though the plaintiff fails to establish all the elements of res ipsa loquitur. See Prosser, Res Ipsa Loquitur: A Reply to Professor Carpenter, 10 So.Cal.L.Rev. 459 (1937). In appropriate cases, therefore, the jury may be instructed that, even though it does not find that the facts giving rise to the presumption have been proved by a preponderance of the evidence, it may nevertheless find the defendant negligent if it concludes from a consideration of all the evidence that it is more probable than not that the defendant was negligent. Such an instruction would be appropriate, for example, in a case where there was evidence of the defendant's negligence apart from the evidence going to the elements of the res ipsa loquitur doctrine. Examples of Operation of Res Ipsa Loquitur Presumption.

The doctrine of res ipsa loquitur may be applicable to a case under four varying sets of circumstances:

(1) Where the facts giving rise to the doctrine are established as a matter of law (by the pleadings by stipulation, by pretrial order, or by some other means) and there is no evidence sufficient to sustain a finding either that the accident resulted from some cause other than the defendant's negligence or that he exercised due care in all possible respects wherein he might have been negligent.

(2) Where the facts giving rise to the doctrine are established as a matter of law, but the defendant has introduced evidence sufficient to sustain a finding either of his due care or of some cause for the accident other than his negligence.

(3) Where the defendant introduces evidence tending to show the nonexistence of the essential conditions of the doctrine but does not introduce evidence to rebut the presumption.

(4) Where the defendant introduces evidence to contest both the conditions of the doctrine and the conclusion that his negligence caused the accident.

Set forth below is an explanation of the manner in which this section functions in each of these situations.

Basic facts established as a matter of law; no rebuttal evidence. If the basic facts that give rise to the presumption are established as a matter of law (by the pleadings, by stipulation, by pretrial order, etc.), the presumption requires that the jury find that the defendant's negligence was the proximate cause of the accident unless evidence is introduced sufficient to sustain a finding either that the accident resulted from some cause other than the defendant's negligence or that he exercised due care in all possible respects wherein he might have been negligent. When the defendant fails to introduce such evidence, the court must simply instruct the jury that it is required to find that the accident was caused by the defendant's negligence.

For example, if a plaintiff automobile passenger sues the driver for injuries sustained in an accident, the defendant may determine not to contest the fact that the accident was of a type that ordinarily does not occur unless the driver was negligent. Moreover, the defendant may introduce no evidence that he exercised due care in the driving of the automobile. Instead, the defendant may rest his defense solely on the ground that the plaintiff was a guest and not a paying passenger. In this case, the court should instruct the jury that it must assume that the defendant was negligent. Cf. Phillips v. Noble, 50 Cal.2d 163, 323 P.2d 385 (1958); Fiske v. Wilkie, 67 Cal.App.2d 440, 154 P.2d 725 (1945).

Basic facts established as matter of law; evidence introduced to rebut presumption. Where the facts giving rise to the doctrine are established as a matter of law but the defendant has introduced evidence sufficient to sustain a finding either of his due care or of a cause for the accident other than his negligence, the presumptive effect of the doctrine vanishes. Except in those rare cases where the inference is dispelled as a matter of law, the court may instruct the jury that it may infer from the established facts that negligence on the part of the defendant was a proximate cause of the accident. The court is required to give such an instruction when requested. The instruction should make it clear, however, that the jury should not find that a proximate cause of the occurrence was some negligent conduct on the part of the defendant unless the jury believes, after weighing all the evidence in the case, that it is more probable than not that the accident was caused by the defendant's negligence.

Basic facts contested; no rebuttal evidence. The defendant may attack only the elements of the doctrine. His purpose in doing so would be to prevent the application of the doctrine. In this situation, the court cannot determine whether the doctrine is applicable or not because the basic facts that give rise to the doctrine must be determined by the jury. Therefore, the court must give an instruction on what has become known as conditional res ipsa loquitur.

Where the basic facts contested by evidence, but there is no rebuttal evidence, the court should instruct the jury that, if it finds that the basic facts have been established by a preponderance of the evidence, then it must also find that the accident was caused by some negligent conduct on the part of the defendant.

Basic facts contested; evidence introduced to rebut presumption. The defendant may introduce evidence that both attacks the basic facts that underlie the doctrine of res ipsa loquitur and tends to show that the accident was not caused by his failure to exercise due care. Because of the evidence contesting the presumed conclusion of negligence, the presumptive effect of the doctrine vanishes, and the greatest effect the doctrine can have in the case is to support an inference that the accident resulted from the defendant's negligence.

In this situation, the court should instruct the jury that, if it finds that the basic facts have been established by a preponderance of the evidence, then it may infer from those facts that the accident was caused because the defendant was negligent. But the court shall also instruct the jury that it should not find that a proximate cause of the accident was some negligent conduct on the part of the defendant unless it believes, after weighing all of the evidence, that it is more probable than not that the defendant was negligent and that the accident resulted from his negligence. Other Appropriate Instructions.

The jury instructions referred to in Section 646 do not preclude the judge from giving the jury any additional instructions on res ipsa loquitur that are appropriate to the particular case. [9 Cal.L.Rev.Comm. Reports 137 (1970)]

§ 647. Return of process served by registered process server

The return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.

ARTICLE 4. PRESUMPTIONS AFFECTING THE BURDEN OF PROOF

§ 660. Presumptions affecting the burden of proof

The presumptions established by this article, and all other rebuttable presumptions established by law that fall within the criteria of Section 605, are presumptions affecting the burden of proof.

LAW REVISION COMMISSION COMMENT

In some cases it may be difficult to determine whether a particular presumption is a presumption affecting the burden of proof or a presumption affecting the burden of producing evidence. To avoid uncertainty, it is desirable to classify as many presumptions as possible. Article 4 (§§ 660–668), therefore, lists several presumptions that are to be regarded as presumptions affecting the burden of proof. The list is not exclusive. Other statutory and common law presumptions that affect the burden of proof must await classification by the courts. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 661. Repealed by Stats.1975, c. 1244, p. 3202, § 14

§ 662. Owner of legal title to property is owner of beneficial title

The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof.

LAW REVISION COMMISSION COMMENT

Section 662 codifies a common law presumption recognized in the California cases. The presumption may be overcome only by clear and convincing proof. Olson v. Olson, 4 Cal.2d 434, 437, 49 P.2d 827, 828 (1935); Rench v. McMullen, 82 Cal.App.2d 872, 187 P.2d 111 (1947). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 663. Ceremonial marriage

A ceremonial marriage is presumed to be valid.

LAW REVISION COMMISSION COMMENT

Section 663 codifies a common law presumption recognized in the California cases. Estate of Hughson, 173 Cal. 448, 160 Pac. 548 (1916); Wilcox v. Wilcox, 171 Cal. 770, 155 Pac. 95 (1916); Freeman S.S. Co. v. Pillsbury, 172 F.2d 321 (9th Cir.1949). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 664. Official duty regularly performed

It is presumed that official duty has been regularly performed. This presumption does not apply on an issue as to the lawfulness of an arrest if it is found or otherwise established that the arrest was made without a warrant.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

The first sentence of Section 664 restates and supersedes subdivision 15 of Code of Civil Procedure Section 1963.

Under existing law, there is a common law presumption that an arrest made without a warrant is unlawful. People v. Agnew, 16 Cal.2d 655, 107 P.2d 601 (1940). Under this common law presumption, if a person arrests another without the color of legality provided by a warrant, the person making the arrest must prove the circumstances that justified the arrest without a warrant. Badillo v. Superior Court, 46 Cal.2d 269, 294 P.2d 23 (1956); Dragna v. White, 45 Cal.2d 469, 471, 289 P.2d 428, 430 (1955) ("Upon proof of [arrest without process] the burden is on the defendants to prove justification for the arrest."). The second sentence of Section 664 makes it clear that the presumption of regular performance of official duty is inapplicable whenever facts have been established that give rise to the common law presumption regarding the illegality of an arrest made without a warrant.

§ 665. Ordinary consequences of voluntary act

A person is presumed to intend the ordinary consequences of his voluntary act. This presumption is inapplicable in a criminal action to establish the specific intent of the defendant where specific intent is an element of the crime charged.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Section 665 restates and supersedes the presumption in subdivision 3 of Code of Civil Procedure Section 1963. The second sentence in this section also appears in Section 668 (restating the presumption in subdivision 2 of Code of Civil Procedure Section 1963). These sentences reflect the fact that it is error to rely on these presumptions when specific intent is in issue in a criminal case. See People v. Snyder, 15 Cal.2d 706, 104 P.2d 639 (1940); People v. Maciel, 71 Cal.App. 213, 234 Pac. 877 (1925).

§ 666. Judicial action lawful exercise of jurisdiction

Any court of this state or the United States, or any court of general jurisdiction in any other state or nation, or any judge of such a court, acting as such, is presumed to have acted in the lawful exercise of its jurisdiction. This presumption applies only when the act of the court or judge is under collateral attack.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Section 666 restates and supersedes the presumption in subdivision 16 of Code of Civil Procedure Section 1963. Under existing law, the presumption applies only to courts of general jurisdiction; the presumption has been held inapplicable to a superior court in California when acting in a special or limited jurisdiction. Estate of Sharon, 179 Cal. 447, 177 Pac. 283 (1918). The presumption also has been held inapplicable to courts of inferior jurisdiction. Santos v. Dondero, 11 Cal.App.2d 720, 54 P.2d 764 (1936). There is no reason to perpetuate this distinction insofar as the courts of California and of the United States are concerned. California's municipal and justice courts are served by able and conscientious judges and are no more likely to act beyond their jurisdiction than are the superior courts. Moreover, there is no reason to suppose that a superior court or a federal court is less respectful of its jurisdiction when acting in a limited capacity (for example, as a juvenile court) than it is when acting in any other capacity. Section 666, therefore, applies to any court or judge of any court of California or of the United States. So far as other states are concerned, the distinction is still applicable, and the presumption applies only to courts of general jurisdiction.

Under Section 666, as under existing law, the presumption applies only when the act of the court or judge is under collateral attack. See City of Los Angeles v. Glassell, 203 Cal. 44, 262 Pac. 1084 (1928).

§ 667. Death of person not heard from in five years

A person not heard from in five years is presumed to be dead.

LAW REVISION COMMISSION COMMENT

1965 Enactment

Section 667 restates and supersedes the presumption in subdivision 26 of Code of Civil Procedure Section 1963. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

1983 Amendment

Section 667 is amended to adopt a five-year missing period. This period is consistent with Probate Code Section 1301 (administration of estates of persons missing five years) and Civil Code Sections 4401(2), 4425(b) (five-year absence in bigamy situations). Except for the change in the duration of the missing period from seven to five years, the amendment of Section 667 has no effect on the case law interpreting this section. [16 Cal.L.Rev.Comm. Reports 105 (1982)].

§ 668. Unlawful intent

An unlawful intent is presumed from the doing of an unlawful act. This presumption is inapplicable in a criminal action to establish the specific intent of the defendant where specific intent is an element of the crime charged.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Section 668 restates and supersedes the presumption in subdivision 2 of Code of Civil Procedure Section 1963. See the Comment to Section 665.

§ 669. Due care; failure to exercise

(a) The failure of a person to exercise due care is presumed if:

(1) He violated a statute, ordinance, or regulation of a public entity;

(2) The violation proximately caused death or injury to person or property;

(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and

(4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.

(b) This presumption may be rebutted by proof that:

(1) The person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law; or

(2) The person violating the statute, ordinance, or regulation was a child and exercised the degree of care ordinarily exercised by persons of his maturity, intelligence, and capacity under similar circumstances, but the presumption may not be rebutted by such proof if the violation occurred in the course of an activity normally engaged in only by adults and requiring adult qualifications.

LAW REVISION COMMISSION COMMENT

1967 Addition

Section 669 codifies a common law presumption that is frequently applied in the California cases. See Alarid v. Vanier, 50 Cal.2d 617, 327 P.2d 897 (1958). The presumption may be used to establish a plaintiff's contributory negligence as well as a defendant's negligence. Nevis v. Pacific Gas & Elec. Co., 43 Cal.2d 626, 275 P.2d 761 (1954).

Effect of Presumption

If the conditions listed in subdivision (a) are established, a presumption of negligence arises which may be rebutted by proof of the facts specified in subdivision (b). The presumption is one of simple negligence only, not gross negligence. Taylor v. Cockrell, 116 Cal.App. 596, 3 P.2d 16 (1931).

Section 669 appears in Article 4 (beginning with Section 660), Chapter 3, of Division 5 of the Evidence Code and, therefore, is a presumption affecting the burden of proof. Evidence Code § 660. Thus, if it is established that a person violated a statute under the conditions specified in subdivision (a), the opponent of the presumption is required to prove to the trier of fact that it is more probable than not that the violation of the statute was reasonable and justifiable under the circumstances. See Evidence Code § 606 and the Comment thereto. Since the ultimate question is whether the opponent of the presumption was negligent rather than whether he violated the statute, proof of justification or excuse under subdivision (b) negates the existence of negligence instead of merely establishing an excuse for negligent conduct. Therefore, if the presumption is rebutted by proof of justification or excuse under subdivision (b), the trier of fact is required to find that the violation of the statute was not negligent.

Violations by children. Section 669 applies to the violation of a statute, ordinance, or regulation by a child as well as by an adult. But in the case of a violation by a child, the presumption may be rebutted by a showing that the child, in spite of the violation, exercised the care that children of his maturity, intelligence, and capacity ordinarily exercise under similar circumstances. Daun v. Truax, 56 Cal.2d 647, 16 Cal.Rptr. 351, 365 P.2d 407 (1961). However, if a child engages in an activity normally engaged in only by adults and requiring adult qualifications, the "reasonable" behavior he must show to establish justification or excuse under subdivision (b) must meet the standard of conduct established primarily for adults. Cf. Prichard v. Veterans Cab Co., 63 Cal.2d 727, 47 Cal.Rptr. 904, 408 P.2d 360 (1965) (minor operating a motorcycle).

Failure to establish conditions of presumption. Even though a party fails to establish that a violation occurred or that a proven violation meets all the requirements of subdivision (a), it is still possible for the party to recover by proving negligence apart from any statutory violation. Nunneley v. Edgar Hotel, 36 Cal.2d 493, 225 P.2d 497 (1950) (plaintiff permitted to recover even though her injury was not of the type to be prevented by statute).

Functions of Judge and Jury

If a case is tried without a jury, the judge is responsible for deciding both questions of law and questions of fact arising under Section 669. However, in a case tried by a jury, there is an allocation between the judge and jury of the responsibility for determining the existence or nonexistence of the elements underlying the presumption and the existence of excuse or justification.

Subdivision (a), paragraph (3) and (4). Whether the death or injury involved in an action resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent (paragraph (3) of subdivision (a)) and whether the plaintiff was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted (paragraph (4) of subdivision (a)) are questions of law. Nunneley v. Edgar Hotel, 36 Cal.2d 493, 225 P.2d 497 (1950) (statute requiring parapet of particular height at roofline of vent shaft designed to protect against walking into shaft, not against falling into shaft while sitting on parapet). If a party were relying solely on the violation of a statute to establish the other party's negligence or contributory negligence, his opponent would be entitled to a directed verdict on the issue if the judge failed to find either of the above elements of the presumption. See Nunneley v. Edgar Hotel, 36 Cal.2d 493, 225 P.2d 497 (1950) (by implication).

Subdivision (a), paragraphs (1) and (2). Whether or not a party to an action has violated a statute, ordinance, or regulation (paragraph (1) of subdivision (a)) is generally a question of fact. However, if a party admits the violation or if the evidence of the violation is undisputed, it is appropriate for the judge to instruct the jury that a violation of the statute, ordinance, or regulation has been established as a matter of law. Alarid v. Vanier, 50 Cal.2d 617, 327 P.2d 897 (1958) (undisputed evidence of driving with faulty brakes).

The question of whether the violation has proximately caused or contributed to the plaintiff's death or injury (paragraph (2) of subdivision (a)) is normally a question for the jury. Satterlee v. Orange Glenn School Dist., 29 Cal.2d 581, 177 P.2d 279 (1947). However, the existence or nonexistence of proximate cause becomes a question of law to be decided by the judge if reasonable men can draw but one inference from the facts. Satterlee v. Orange Glenn School Dist., 29 Cal.2d 581, 177 P.2d 279 (1947). See also Alarid v. Vanier, 50 Cal.2d 617, 327 P.2d 897 (1958) (defendant's admission establishes proximate cause); Moon v. Payne, 97 Cal.App.2d 717, 218 P.2d 550 (1950) (failure to obtain permit to burn weeds not proximate cause of child's burns).

Subdivision (b). Normally, the question of justification or excuse is a jury question. Fuentes v. Panella, 120 Cal.App.2d 175, 260 P.2d 853 (1953). The jury should be instructed on the issue of justification or excuse whether the excuse or justification appears from the circumstances surrounding the violation itself or appears from evidence offered specifically to show justification. Fuentes v. Panella, 120 Cal.App.2d 175, 260 P.2d 853 (1953) (instruction on justification proper in light of conflicting testimony concerning violation itself and surrounding circumstances). However, an instruction on the issue of excuse or justification should not be given if there is no evidence that would sustain a finding by the jury that the violation was excused. McCaughan v. Hansen Pac. Lumber Co., 176 Cal.App.2d 827, 833–834, 1 Cal.Rptr. 796, 800 (1959) (evidence went to contributory negligence, not to excuse); Fuentes v. Panella, 120 Cal.App.2d 175, 260 P.2d 853 (1953) (dictum). [8 Cal.L.Rev.Comm. Reports 101 (1967)]

§ 669.1. Standards of conduct for public employees; presumption of failure to exercise due care

A rule, policy, manual, or guideline of state or local government setting forth standards of conduct or guidelines for its employees in the conduct of their public employment shall not be considered a statute, ordinance, or regulation of that public entity within the meaning of Section 669, unless the rule, manual, policy, or guideline has been formally adopted as a statute, as an ordinance of a local governmental entity in this state empowered to adopt ordinances, or as a regulation by an agency of the state pursuant to the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Division 3 of Title 2 of the Government Code), or by an agency of the United States government pursuant to the federal Administrative Procedure Act (Chapter 5 (commencing with Section 5001) of Title 5 of the United States Code). This section affects only the presumption set forth in Section 669, and is not otherwise intended to affect the admissibility or inadmissibility of the rule, policy, manual, or guideline under other provisions of law.

§ 669.5. Ordinances limiting building permits or development of buildable lots for residential purposes; impact on supply of residential units; actions challenging validity

(a) Any ordinance enacted by the governing body of a city, county, or city and county which (1) directly limits, by number, the building permits that may be issued for residential construction or the buildable lots which may be developed for residential purposes, or (2) changes the standards of residential development on vacant land so that the governing body's zoning is rendered in violation of Section 65913.1 of the Government Code is presumed to have an impact on the supply of residential units available in an area which includes territory outside the jurisdiction of the city, county, or city and county.

(b) With respect to any action which challenges the validity of an ordinance specified in subdivision (a) the city, county, or city and county enacting the ordinance shall bear the burden of proof that the ordinance is necessary for the protection of the public health, safety, or welfare of the population of the city, county, or city and county.

(c) This section does not apply to state and federal building code requirements or local ordinances which (1) impose a moratorium, to protect the public health and safety, on residential construction for a specified period of time, if, under the terms of the ordinance, the moratorium will cease when the public health or safety is no longer jeopardized by the construction, (2) create agricultural preserves under Chapter 7 (commencing with Section 51200) of Part 1 of Division 1 of Title 5 of the Government Code, or (3) restrict the number of buildable parcels or designate lands within a zone for nonresidential uses in order to protect agricultural uses as defined in subdivision (b) of Section 51201 of the Government Code or open-space land as defined in subdivision (b) of Section 65560 of the Government Code.

(d) This section shall not apply to a voter approved ordinance adopted by referendum or initiative prior to the effective date of this section which (1) requires the city, county, or city and county to establish a population growth limit which represents its fair share of each year's statewide population growth, or (2) which sets a growth rate of no more than the average population growth rate experienced by the state as a whole. Paragraph (2) of subdivision (a) does not apply to a voter-approved ordinance adopted by referendum or initiative which exempts housing affordable to persons and families of low or moderate income, as defined in Section 50093 of the Health and Safety Code, or which otherwise provides low-and moderate-income housing sites equivalent to such an exemption.

§ 670. Payments by check

(a) In any dispute concerning payment by means of a check, a copy of the check produced in accordance with Section 1550 of the Evidence Code, together with the original bank statement that reflects payment of the check by the bank on which it was drawn or a copy thereof produced in the same manner, creates a presumption that the check has been paid.

(b) As used in this section:

(1) "Bank" means any person engaged in the business of banking and includes, in addition to a commercial bank, a savings and loan association, savings bank, or credit union.

(2) "Check" mean* a draft, other than a documentary draft, payable on demand and drawn on a bank, even though it is described by another term, such as "share draft" or "negotiable order of withdrawal."

DIVISION 6. WITNESSES

CHAPTER 1. COMPETENCY

§ 700. General rule as to competency

Except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.

LAW REVISION COMMISSION COMMENT

Section 700 makes it clear that all grounds for disqualification of witnesses must be based on statute. There can be no nonstatutory grounds for disqualification. The section is similar to and supersedes Section 1879 of the Code of Civil Procedure, which provides that "all persons ... who, having organs of sense, can perceive, and perceiving, can make known their perceptions to others, may be witnesses."

Just as Code of Civil Procedure Section 1879 is limited by various statutory restrictions on the competency of witnesses, the broad rule stated in Section 700 is also substantially qualified by statutory restrictions appearing in the Evidence Code and in other California codes. See, e.g., Evidence Code § 701 (mental or physical capacity to be a witness), § 702 (requirement of personal knowledge), § 703 (judge as a witness), § 704 (juror as a witness), §§ 900–1070 (privileges), § 1150 (continuing existing law limiting use of juror's evidence concerning jury misconduct); Vehicle Code § 40804 (speed trap evidence). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 701. Disqualification of witness

(a) A person is disqualified to be a witness if he or she is:

(1) Incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him; or

(2) Incapable of understanding the duty of a witness to tell the truth.

(b) In any proceeding held outside the presence of a jury, the court may reserve challenges to the competency of a witness until the conclusion of the direct examination of that witness.

LAW REVISION COMMISSION COMMENT

Under existing law, the competency of a person to be a witness is a question to be determined by the court and depends upon his capacity to understand the oath and to perceive, recollect, and communicate that which he is offered to relate. "Whether he did perceive accurately, does recollect, and is communicating accurately and truthfully are questions of credibility to be resolved by the trier of fact." People v. McCaughan, 49 Cal.2d 409, 420, 317 P.2d 974, 981 (1957).

Under the Evidence Code, too, the competency of a person to be a witness is a question to be determined by the court. See Evidence Code § 405 and the Comment thereto. However, Section 701 requires the court to determine only the prospective witness' capacity to communicate and his understanding of the duty to tell the truth. The missing qualifications—the capacity to perceive and to recollect—are determined in a different manner. Because a witness, qualified under Section 701, must have personal knowledge of the facts to which he testifies (Section 702), he must, of course, have the capacity to perceive and to recollect those facts. But the court may exclude the testimony of a witness for lack of personal knowledge only if no jury could reasonably find that he has such knowledge. See Evidence Code § 403 and the Comment thereto. Thus, the Evidence Code has made a person's capacity to perceive and to recollect a condition for the admission of his testimony concerning a particular matter instead of a condition for his competency to be a witness. And, under the Evidence Code, if there is evidence that the witness has those capacities, the determination whether he in fact perceived and does recollect is left to the trier of fact. See Evidence Code §§ 403 and 702 and the Comments thereto.

Although Section 701 modifies the existing law with respect to determining the competency of witnesses, it seems unlikely that the change will have much practical significance. Theoretically, Section 701 may permit children and persons suffering from mental impairment to testify in some instances where they are now disqualified from testifying; in practice, however, the California courts have permitted children of very tender years and persons with mental impairment to testify. See Witkin, California Evidence §§ 389, 390 (1958). See also Bradburn v. Peacock, 135 Cal.App.2d 161, 164–165, 286 P.2d 972, 974 (1955) (reversible error to preclude a child from testifying without conducting a voir dire examination to determine his competency: "We cannot say that no child of 3 years and 3 months is capable of receiving just impressions of the facts that a man whom he knows in a truck which he knows ran over his little sister. Nor can we say that no child of 3 years and 3 months would remember such facts and be able to relate them truly at the age of 5." (Emphasis in original.)); People v. McCaughan, 49 Cal.2d 409, 317 P.2d 974 (1957) (indicating that committed mental patients may be competent witnesses). For further discussion, see Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article IV. Witnesses), 6 Cal. Law Revision Comm'n, Rep., Rec. & Studies 701, 709–710 (1964). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 702. Personal knowledge of witness

(a) Subject to Section 801, the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter.

(b) A witness' personal knowledge of a matter may be shown by any otherwise admissible evidence, including his own testimony.

LAW REVISION COMMISSION COMMENT

Section 702 states the general requirement that a witness must have personal knowledge of the facts to which he testifies. "Personal knowledge" means a present recollection of an impression derived from the exercise of the witness' own senses. 2 Wigmore, Evidence § 657 at 762 (3d ed. 1940). Cf. Evidence Code § 170, defining "perceive." Section 702 restates the substance of and supersedes Code of Civil Procedure Section 1845.

Except to the extent that experts may give opinion testimony not based on personal knowledge (see Evidence Code § 801), the requirement of Section 702 is applicable to all witnesses, whether expert or not. Certain additional qualifications that an expert witness must possess are set forth in Article 1 (commencing with Section 720) of Chapter 3.

Under existing law, as under Section 702, an objection must be made to the testimony of a witness who does not have personal knowledge; but, if there is no reasonable opportunity to object before the testimony is given, a motion to strike is appropriate after lack of knowledge has been shown. Fildew v. Shattuck & Nimmo Warehouse Co., 39 Cal.App. 42, 46, 177 Pac. 866, 867 (1918) (objection to question properly sustained when foundational showing of personal knowledge was not made); Sneed v. Marysville Gas & Elec. Co., 149 Cal. 704, 709, 87 Pac. 376, 378 (1906) (error to overrule motion to strike testimony after lack of knowledge shown on cross-examination); Parker v. Smith, 4 Cal. 105 (1854) (testimony properly stricken by court when lack of knowledge shown on cross-examination).

If a timely objection is made that a witness lacks personal knowledge, the court may not receive his testimony subject to the condition that evidence of personal knowledge be supplied later in the trial. Section 702 thus limits the ordinary power of the court with respect to the order of proof. See Evidence Code § 403(b). See also Evidence Code § 320. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 703. Judge as witness

(a) Before the judge presiding at the trial of an action may be called to testify in that trial as a witness, he shall, in proceedings held out of the presence and hearing of the jury, inform the parties of the information he has concerning any fact or matter about which he will be called to testify.

(b) Against the objection of a party, the judge presiding at the trial of an action may not testify in that trial as a witness. Upon such objection, the judge shall declare a mistrial and order the action assigned for trial before another judge.

(c) The calling of the judge presiding at a trial to testify in that trial as a witness shall be deemed a consent to the granting of a motion for mistrial, and an objection to such calling of a judge shall be deemed a motion for mistrial.

(d) In the absence of objection by a party, the judge presiding at the trial of an action may testify in that trial as a witness.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Under existing law, a judge may be called as a witness even if a party objects, but the judge in his discretion may order the trial to be postponed or suspended and to take place before another judge. Code Civ.Proc. § 1883 (superseded by Evidence Code §§ 703 and 704). But see People v. Connors, 77 Cal.App. 438, 450–457, 246 Pac. 1072, 1076–1079 (1926) (dictum) (abuse of discretion for the presiding judge to testify to important and necessary facts).

Section 703, however, precludes the judge from testifying if a party objects. Before the judge may be called to testify in a civil or criminal action, he must disclose to the parties out of the presence and hearing of the jury the information he has concerning the case. After such disclosure, if no party objects, the judge is permitted—but not required—to testify.

Section 703 is based on the fact that examination and cross-examination of a judge-witness may be embarrassing and prejudicial to a party. By testifying as a witness for one party a judge appears in a partisan attitude before the jury. Objections to questions and to his testimony must be ruled on by the witness himself. The extent of cross-examination and the introduction of impeaching and rebuttal evidence may be limited by the fear of appearing to attack the judge personally. For these and other reasons, Section 703 is preferable to Code of Civil Procedure Section 1883.

Subdivision (c) is designed to prevent a plea of double jeopardy by a defendant who either calls or objects to the calling of the judge to testify. Under subdivision (c), the defendant will, in effect, have consented to the mistrial and thus waived any objection to a retrial. See Witkin, California Crimes § 193 (1963).

§ 703.5. Judges, arbitrators or mediators as witnesses; subsequent civil proceeding

No person presiding at any judicial or quasi-judicial proceeding, and no arbitrator or mediator, shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision, or ruling, occurring at or in conjunction with the prior proceeding, except as to a statement or conduct that could (a) give rise to civil or criminal contempt, (b) constitute a crime, (c) be the subject of investigation by the State Bar or Commission on Judicial Performance, or (d) give rise to disqualification proceedings under paragraph (1) or (6) of subdivision (a) of Section 170.1 of the Code of Civil Procedure. However, this section does not apply to a mediator with regard to any mediation under Chapter 11 (commencing with Section 3160) of Part 2 of Division 8 of the Family Code.

LAW REVISION COMMISSION COMMENT

1994 Amendment

Section 703.5 is amended to correct the cross-reference to former Family Code Section 3155 to reflect the reorganization of those sections in 1993 Cal. Stat. ch. 219. This is a technical, nonsubstantive change. [24 Cal.L.Rev.Comm.Reports 621 (1994), Annual Report for 1994, App. 5]

§ 704. Juror as witness

(a) Before a juror sworn and impaneled in the trial of an action may be called to testify before the jury in that trial as a witness, he shall, in proceedings conducted by the court out of the presence and hearing of the remaining jurors, inform the parties of the information he has concerning any fact or matter about which he will be called to testify.

(b) Against the objection of a party, a juror sworn and impaneled in the trial of an action may not testify before the jury in that trial as a witness. Upon such objection, the court shall declare a mistrial and order the action assigned for trial before another jury.

(c) The calling of a juror to testify before the jury as a witness shall be deemed a consent to the granting of a motion for mistrial, and an objection to such calling of a juror shall be deemed a motion for mistrial.

(d) In the absence of objection by a party, a juror sworn and impaneled in the trial of an action may be compelled to testify in that trial as a witness.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Under existing law, a juror may be called as a witness even if a party objects, but the judge in his discretion may order the trial to be postponed or suspended and to take place before another jury. Code Civ.Proc. § 1883 (superseded by Evidence Code §§ 703 and 704). Section 704, on the other hand, prevents a juror from testifying before the jury if any party objects.

A juror-witness is in an anomalous position. He manifestly cannot weigh his own testimony impartially. A party affected adversely by the juror's testimony is placed in an embarrassing position. He cannot freely cross-examine or impeach the juror for fear of antagonizing the juror—and perhaps his fellow jurors as well. And, if he does not attack the juror's testimony, the other jurors may give his testimony undue weight. For these and other reasons, Section 704 forbids jurors to testify over the objection of any party.

Before a juror may be called to testify before the jury in a civil or criminal action, he is required to disclose to the parties out of the presence and hearing of the remaining jurors the information he has concerning the case. After such disclosure, if no party objects, the juror is required to testify. If a party objects, the objection is deemed a motion for mistrial and the judge is required to declare a mistrial and order the action assigned for trial before another jury.

Section 704 is concerned only with the problem of a juror who is called to testify before the jury. Section 704 does not deal with voir dire examinations of jurors, with testimony of jurors in post-verdict proceedings (such as on motions for new trial), or with the testimony of jurors on any other matter that is to be decided by the court. Cf. Evidence Code § 1150 and the Comment thereto.

Subdivision (c) is designed to prevent a plea of double jeopardy by a defendant who either calls or objects to the calling of the juror to testify. Under subdivision (c), the defendant will, in effect, have consented to the mistrial and thus waived any objection to a retrial. See Witkin, California Crimes § 193 (1963).

CHAPTER 2. OATH AND CONFRONTATION

§ 710. Oath required

Every witness before testifying shall take an oath or make an affirmation or declaration in the form provided by law, except that a child under the age of 10 or a dependent person with a substantial cognitive impairment, in the court's discretion, may be required only to promise to tell the truth.

§ 711. Confrontation

At the trial of an action, a witness can be heard only in the presence and subject to the examination of all the parties to the action, if they choose to attend and examine.

§ 712. Blood samples; technique in taking; affidavits in criminal actions; service; objections

Notwithstanding Sections 711 and 1200, at the trial of a criminal action, evidence of the technique used in taking blood samples may be given by a registered nurse, licensed vocational nurse, or licensed clinical laboratory technologist or clinical laboratory bioanalyst, by means of an affidavit. The affidavit shall be admissible, provided the party offering the affidavit as evidence has served all other parties to the action, or their counsel, with a copy of the affidavit no less than 10 days prior to trial. Nothing in this section shall preclude any party or his counsel from objecting to the introduction of the affidavit at any time, and requiring the attendance of the affiant, or compelling attendance by subpoena.

CHAPTER 3. EXPERT WITNESSES

ARTICLE 1. EXPERT WITNESSES GENERALLY

§ 720. Qualification as an expert witness

(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.

(b) A witness' special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony.

LAW REVISION COMMISSION COMMENT

This section states existing law as declared in subdivision 9 (last clause) of Code of Civil Procedure Section 1870, which is superseded by Sections 720 and 801.

The judge must be satisfied that the proposed witness is an expert. People v. Haeussler, 41 Cal.2d 252, 260 P.2d 8 (1953); Pfingsten v. Westenhaver, 39 Cal.2d 12, 244 P.2d 395 (1952); Bossert v. Southern Pac. Co., 172 Cal. 504, 157 Pac. 597 (1916); People v. Pacific Gas & Elec. Co., 27 Cal.App.2d 725, 81 P.2d 584 (1938).

Against the objection of a party, the special qualifications of the proposed witness must be shown as a prerequisite to his testimony as an expert. With the consent of the parties, the judge may receive a witness' testimony conditionally, subject to the necessary foundation being supplied later in the trial. See Evidence Code § 320. Unless the foundation is subsequently supplied, however, the judge should grant a motion to strike or should order the testimony stricken from the record on his own motion.

The judge's determination that a witness qualifies as an expert witness is binding on the trier of fact, but the trier of fact may consider the witness' qualifications as an expert in determining the weight to be given his testimony. Pfingsten v. Westenhaver, 39 Cal.2d 12, 244 P.2d 395 (1952); Howland v. Oakland Consol. St. Ry., 110 Cal. 513, 42 Pac. 983 (1895); Estate of Johnson, 100 Cal.App.2d 73, 223 P.2d 105 (1950). See Evidence Code §§ 405 and 406 and the Comments thereto. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 721. Cross-examination of expert witness

(a) Subject to subdivision (b), a witness testifying as an expert may be cross-examined to the same extent as any other witness and, in addition, may be fully cross-examined as to (1) his or her qualifications, (2) the subject to which his or her expert testimony relates, and (3) the matter upon which his or her opinion is based and the reasons for his or her opinion.

(b) If a witness testifying as an expert testifies in the form of an opinion, he or she may not be cross-examined in regard to the content or tenor of any scientific, technical, or professional text, treatise, journal, or similar publication unless any of the following occurs:

(1) The witness referred to, considered, or relied upon such publication in arriving at or forming his or her opinion * * *.

(2) The publication has been admitted in evidence.

(3) The publication has been established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.

If admitted, relevant portions of the publication may be read into evidence but may not be received as exhibits.

LAW REVISION COMMISSION COMMENT

Under Section 721, a witness who testifies as an expert may, of course, be cross-examined to the same extent as any other witness. See Chapter 5 (commencing with Section 760). But, under subdivision (a) of Section 721, as under existing law, the expert witness is also subject to a somewhat broader cross-examination: "Once an expert offers his opinion, however, he exposes himself to the kind of inquiry which ordinarily would have no place in the cross-examination of a factual witness. The expert invites investigation into the extent of his knowledge, the reasons for his opinion including facts and other matters upon which it is based (Code Civ.Proc., § 1872), and which he took into consideration; and he may be 'subjected to the most rigid cross examination' concerning his qualifications, and his opinion and its sources [citation omitted]." Hope v. Arrowhead & Puritas Waters, Inc., 174 Cal.App.2d 222, 230, 344 P.2d 428, 433 (1959). The cross-examination rule stated in subdivision (a) is based in part on the last clause of Code of Civil Procedure Section 1872.

Subdivision (b) clarifies a matter concerning which there is considerable confusion in the California decisions. It is at least clear under existing law that an expert witness may be cross-examined in regard to those books on which he relied in forming or arriving at his opinion. Lewis v. Johnson, 12 Cal.2d 558, 86 P.2d 99 (1939); People v. Hooper, 10 Cal.App.2d 332, 51 P.2d 1131 (1935). Dicta in some decisions indicate that the cross-examiner is strictly limited to the books relied on by the expert witness. See, e.g., Baily v. Kreutzmann, 141 Cal. 519, 75 Pac. 104 (1904). Other cases, however, suggest that an expert witness may be cross-examined in regard to any book of the same character as the books on which he relied in forming his opinion. Griffith v. Los Angeles Pac. Co., 14 Cal.App. 145, 111 Pac. 107 (1910). See Salgo v. Leland Stanford etc. Bd. Trustees, 154 Cal.App.2d 560, 317 P.2d 170 (1957); Gluckstein v. Lipsett, 93 Cal.App.2d 391, 209 P.2d 98 (1949) (reviewing California authorities). (Possibly, the cross-examiner is restricted under this view to the use of such books as "are not in harmony with the testimony of the witness." Griffith v. Los Angeles Pac. Co., supra.) Language in several earlier cases indicated that the cross-examiner could use books to test the competency of an expert witness, whether or not the expert relied on books in forming his opinion. Fisher v. Southern Pac. R.R., 89 Cal. 399, 26 Pac. 894 (1891); People v. Hooper, 10 Cal.App.2d 332, 51 P.2d 1131 (1935). More recent decisions indicate, however, that the opinion of an expert witness must be based either generally or specifically on books before the expert can be cross-examined concerning them. Lewis v. Johnson, 12 Cal.2d 558, 86 P.2d 99 (1939); Salgo v. Leland Stanford etc. Bd. Trustees, 154 Cal.App.2d 560, 317 P.2d 170 (1957); Gluckstein v. Lipsett, 93 Cal.App.2d 391, 209 P.2d 98 (1949). The conflicting California cases are gathered in Annot., 60 A.L.R.2d 77 (1958).

If an expert witness has relied on a particular publication in forming his opinion, it is necessary to permit cross-examination in regard to that publication in order to show whether the expert correctly read, interpreted, and applied the portions he relied on. Similarly, it is important to permit an expert witness to be cross-examined concerning those publications referred to or considered by him even though not specifically relied on by him in forming his opinion. An expert's reasons for not relying on particular publications that were referred to or considered by him while forming his opinion may reveal important information bearing upon the credibility of his testimony. However, a rule permitting cross-examination on technical treatises not considered by the expert witness would permit the cross-examiner to utilize this opportunity not for its ostensible purpose—to test the expert's opinion—but to bring before the trier of fact the opinions of absentee authors without the safeguard of cross-examination. Although the court would be required upon request to caution the jury that the statements read are not to be considered evidence of the truth of the propositions stated, there is a danger that at least some jurors might rely on the author's statements for this purpose. Yet, the statements in the text might be based on inadequate background research, might be subject to unexpressed qualifications that would be applicable to the case before the court, or might be unreliable for some other reason that could be revealed if the author were subject to cross-examination. Therefore, subdivision (b) does not permit cross-examination of an expert witness on scientific, technical, or professional works not referred to, considered, or relied on by him.

If a particular publication has already been admitted in evidence, however, the reason for subdivision (b)—to prevent inadmissible evidence from being brought before the jury—is inapplicable. Hence, the subdivision permits an expert witness to be examined concerning such a publication without regard to whether he referred to, considered, or relied on it in forming his opinion. Cf. Laird v. T. W. Mather, Inc., 51 Cal.2d 210, 331 P.2d 617 (1958).

The rule state in subdivision (b) thus provides a fair and workable solution to this conflict of competing interests with respect to the permissible use of scientific, technical, or professional publications by the cross-examiner. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 722. Credibility of expert witness

(a) The fact of the appointment of an expert witness by the court may be revealed to the trier of fact.

(b) The compensation and expenses paid or to be paid to an expert witness by the party calling him is a proper subject of inquiry by any adverse party as relevant to the credibility of the witness and the weight of his testimony.

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Subdivision (a) of Section 722 codifies a rule recognized in the California decisions. People v. Cornell, 203 Cal. 144, 263 Pac. 216 (1928); People v. Strong, 114 Cal.App. 522, 300 Pac. 84 (1931).

Subdivision (b) of Section 722 restates the substance of Section 1256.2 of the Code of Civil Procedure. Section 1256.2, however, applies only in condemnation cases, while Section 722 is not so limited. It is uncertain whether the California law in other fields of litigation is as stated in Section 722. At least one California case has held that an expert could be asked whether he was being compensated but that he could not be asked the amount of the compensation. People v. Tomalty, 14 Cal.App. 224, 111 Pac. 513 (1910). However, the decision may have been based on the discretionary right of the trial judge to curtail collateral inquiry.

In any event, the rule enunciated in Section 722 is a desirable rule. The tendency of some experts to become advocates for the party employing them has been recognized. 2 Wigmore, Evidence § 563 (3d ed. 1940); Friedenthal, Discovery and Use of an Adverse Party's Expert Information, 14 Stan.L.Rev. 455, 485–486 (1962). The jury can better appraise the extent to which bias may have influenced an expert's opinion if it is informed of the amount of his fee—and, hence, the extent of his possible feeling of obligation to the party calling him. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 723. Limit on number of expert witnesses

The court may, at any time before or during the trial of an action, limit the number of expert witnesses to be called by any party.

ARTICLE 2. APPOINTMENT OF EXPERT WITNESS BY COURT

§ 730. Appointment of expert by court

When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required. The court may fix the compensation for these services, if any, rendered by any person appointed under this section, in addition to any service as a witness, at the amount as seems reasonable to the court.

Nothing in this section shall be construed to permit a person to perform any act for which a license is required unless the person holds the appropriate license to lawfully perform that act.

§ 731. Payment of court-appointed expert

(a) In all criminal actions and juvenile court proceedings, the compensation fixed under Section 730 shall be a charge against the county in which such action or proceeding is pending and shall be paid out of the treasury of such county on order of the court.

(b) In any county in which the board of supervisors so provides, the compensation fixed under Section 730 for medical experts in civil actions in such county shall be a charge against and paid out of the treasury of such county on order of the court.

(c) Except as otherwise provided in this section, in all civil actions, the compensation fixed under Section 730 shall, in the first instance, be apportioned and charged to the several parties in such proportion as the court may determine and may thereafter be taxed and allowed in like manner as other costs.

§ 732. Calling and examining court-appointed expert

Any expert appointed by the court under Section 730 may be called and examined by the court or by any party to the action. When such witness is called and examined by the court, the parties have the same right as is expressed in Section 775 to cross-examine the witness and to object to the questions asked and the evidence adduced.

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Section 732 restates the substance of and supersedes the fourth paragraph of Section 1871 of the Code of Civil Procedure. Section 732 refers to Section 775, which is based on language originally contained in Section 1871. Section 775 permits each party to the action to object to questions asked and evidence adduced and, also, to cross-examine any person called by the court as a witness to the same extent as if such person were called as a witness by an adverse party. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 733. Right to produce other expert evidence

Nothing contained in this article shall be deemed or construed to prevent any party to any action from producing other expert evidence on the same fact or matter mentioned in Section 730; but, where other expert witnesses are called by a party to the action, their fees shall be paid by the party calling them and only ordinary witness fees shall be taxed as costs in the action.

CHAPTER 4. INTERPRETERS AND TRANSLATORS

§ 750. Rules relating to witnesses apply to interpreters and translators

A person who serves as an interpreter or translator in any action is subject to all the rules of law relating to witnesses.

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Section 750 codifies existing law. E.g., People v. Lem Deo, 132 Cal. 199, 201, 64 Pac. 265, 266 (1901) (interpreter); People v. Bardin, 148 Cal.App.2d 776, 307 P.2d 384 (1957) (translator). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 751. Oath required of interpreters and translators

(a) An interpreter shall take an oath that he or she will make a true interpretation to the witness in a language that the witness understands and that he or she will make a true interpretation of the witness' answers to questions to counsel, court, or jury, in the English language, with his or her best skill and judgment.

(b) In any proceeding in which a deaf or hard-of-hearing person is testifying under oath, the interpreter certified pursuant to subdivision (f) of Section 754 shall advise the court whenever he or she is unable to comply with his or her oath taken pursuant to subdivision (a).

(c) A translator shall take an oath that he or she will make a true translation in the English language of any writing he or she is to decipher or translate.

(d) An interpreter or translator regularly employed by the court and certified or registered in accordance with Article 4 (commencing with Section 68560) of Chapter 2 of Title 8 of the Government Code, or a translator regularly employed by the court, may file an oath as prescribed by this section with the clerk of the court. The filed oath shall serve for all subsequent court proceedings until the appointment is revoked by the court.

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1995 Main Volume

Section 751 is based on language presently contained in subdivision (c) of Section 1885 of the Code of Civil Procedure. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 752. Interpreters for witnesses

(a) When a witness is incapable of understanding the English language or is incapable of expressing himself or herself in the English language so as to be understood directly by counsel, court, and jury, an interpreter whom he or she can understand and who can understand him or her shall be sworn to interpret for him or her.

(b) The record shall identify the interpreter who may be appointed and compensated as provided in Article 2 (commencing with Section 730) of Chapter 3.

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Section 752 restates the substance of and supersedes Section 1884 of the Code of Civil Procedure. It is drawn broadly enough to authorize the use of an interpreter for a person whose inability to be understood directly stems from physical disability as well as from lack of understanding of the English language. See discussion in People v. Walker, 69 Cal.App. 475, 231 Pac. 572 (1924). Under Section 752, as under existing law, whether an interpreter should be appointed is largely within the discretion of the trial judge. People v. Holtzclaw, 76 Cal.App. 168, 243 Pac. 894 (1926).

Subdivision (b) of Section 752 substitutes for the detailed language in Code of Civil Procedure Section 1884 a reference to the general authority of a court to appoint expert witnesses, since interpreters are treated as expert witnesses and subject to the same rules of competency and examination as are experts generally. The existing procedure provided by Code of Civil Procedure Section 1884 does not insure that an interpreter who is required to testify will be paid reasonable compensation for his services. Section 752 corrects this deficiency in the existing law. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 753. Translators of writings

(a) When the written characters in a writing offered in evidence are incapable of being deciphered or understood directly, a translator who can decipher the characters or understand the language shall be sworn to decipher or translate the writing.

(b) The record shall identify the translator who may be appointed and compensated as provided in Article 2 (commencing with Section 730) of Chapter 3.

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Section 753 restates the substance of and supersedes Section 1863 of the Code of Civil Procedure, but the language of Section 753 is new. The same principles that require the appointment of an interpreter for a witness who is incapable of expressing himself so as to be understood directly apply with equal force to documentary evidence. See Evidence Code § 752 and the Comment thereto. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 754. Deaf or hearing impaired persons; interpreters; qualifications; guidelines; compensation; questioning; use of statements

(a) As used in this section, "individual who is deaf or hearing impaired" means an individual with a hearing loss so great as to prevent his or her understanding language spoken in a normal tone, but does not include an individual who is hearing impaired provided with, and able to fully participate in the proceedings through the use of, an assistive listening system or computer-aided transcription equipment provided pursuant to Section 54.8 of the Civil Code.

(b) In any civil or criminal action, including, but not limited to, any action involving a traffic or other infraction, any small claims court proceeding, any juvenile court proceeding, any family court proceeding or service, or any proceeding to determine the mental competency of a person, in any court-ordered or court-provided alternative dispute resolution, including mediation and arbitration, or any administrative hearing, where a party or witness is an individual who is deaf or hearing impaired and the individual who is deaf or hearing impaired is present and participating, the proceedings shall be interpreted in a language that the individual who is deaf or hearing impaired understands by a qualified interpreter appointed by the court or other appointing authority, or as agreed upon.

(c) For purposes of this section, "appointing authority" means a court, department, board, commission, agency, licensing or legislative body, or other body for proceedings requiring a qualified interpreter.

(d) For the purposes of this section, "interpreter" includes, but is not limited to, an oral interpreter, a sign language interpreter, or a deaf-blind interpreter, depending upon the needs of the individual who is deaf or hearing impaired.

(e) For purposes of this section, "intermediary interpreter" means an individual who is deaf or hearing impaired, or a hearing individual who is able to assist in providing an accurate interpretation between spoken English and sign language or between variants of sign language or between American Sign Language and other foreign languages by acting as an intermediary between the individual who is deaf or hearing impaired and the qualified interpreter.

(f) For purposes of this section, "qualified interpreter" means an interpreter who has been certified as competent to interpret court proceedings by a testing organization, agency, or educational institution approved by the Judicial Council as qualified to administer tests to court interpreters for individuals who are deaf or hearing impaired.

(g) In the event that the appointed interpreter is not familiar with the use of particular signs by the individual who is deaf or hearing impaired or his or her particular variant of sign language, the court or other appointing authority shall, in consultation with the individual who is deaf or hearing impaired or his or her representative, appoint an intermediary interpreter.

(h) Prior to July 1, 1992, the Judicial Council shall conduct a study to establish the guidelines pursuant to which it shall determine which testing organizations, agencies, or educational institutions will be approved to administer tests for certification of court interpreters for individuals who are deaf or hearing impaired. It is the intent of the Legislature that the study obtain the widest possible input from the public, including, but not limited to, educational institutions, the judiciary, linguists, members of the State Bar, court interpreters, members of professional interpreting organizations, and members of the deaf and hearing-impaired communities. After obtaining public comment and completing its study, the Judicial Council shall publish these guidelines. By January 1, 1997, the Judicial Council shall approve one or more entities to administer testing for court interpreters for individuals who are deaf or hearing impaired. Testing entities may include educational institutions, testing organizations, joint powers agencies or public agencies.

Commencing July 1, 1997, court interpreters for individuals who are deaf or hearing impaired shall meet the qualifications specified in subdivision (f).

(i) Persons appointed to serve as interpreters under this section shall be paid, in addition to actual travel costs, the prevailing rate paid to persons employed by the court to provide other interpreter services unless such service is considered to be a part of the person's regular duties as an employee of the state, county, or other political subdivision of the state. Payment of the interpreter's fee shall be a charge against the county, or other political subdivision of the state, in which that action is pending. Payment of the interpreter's fee in administrative proceedings shall be a charge against the appointing board or authority.

(j) Whenever a peace officer or any other person having a law enforcement or prosecutorial function in any criminal or quasi-criminal investigation or proceeding questions or otherwise interviews an alleged victim or witness who demonstrates or alleges deafness or hearing impairment, a good faith effort to secure the services of an interpreter shall be made, without any unnecessary delay unless either the individual who is deaf or hearing impaired affirmatively indicates that he or she does not need or cannot use an interpreter, or an interpreter is not otherwise required by Title II of the Americans with Disabilities Act of 1990 (Public Law 101–336)* and federal regulations adopted thereunder.

(k) No statement, written or oral, made by an individual who the court finds is deaf or hearing impaired in reply to a question of a peace officer, or any other person having a law enforcement or prosecutorial function in any criminal or quasi-criminal investigation or proceeding, may be used against that individual who is deaf or hearing impaired unless the question was accurately interpreted and the statement was made knowingly, voluntarily, and intelligently and was accurately interpreted, or the court makes special findings that either the individual could not have used an interpreter or an interpreter was not otherwise required by Title II of the Americans with Disabilities Act of 1990 (Public Law 101–336)1 and federal regulations adopted thereunder and that the statement was made knowingly, voluntarily, and intelligently.

(l) In obtaining services of an interpreter for purposes of subdivision (j) or (k), priority shall be given to first obtaining a qualified interpreter.

(m) Nothing in subdivision (j) or (k) shall be deemed to supersede the requirement of subdivision (b) for use of a qualified interpreter for individuals who are deaf or hearing impaired participating as parties or witnesses in a trial or hearing.

(n) In any action or proceeding in which an individual who is deaf or hearing impaired is a participant, the appointing authority shall not commence proceedings until the appointed interpreter is in full view of and spatially situated to assure proper communication with the participating individual who is deaf or hearing impaired.

(o) Each superior court shall maintain a current roster of qualified interpreters certified pursuant to subdivision (f).

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Section 754 restates the substance of and supersedes Section 1885 of the Code of Civil Procedure. Subdivision (c) of Section 1885 is not continued in Section 754 but is restated in substance in Section 751.

The phrase "with or without a hearing aid" has been deleted from the definition of "deaf person" as unnecessary. The court's inquiry should be directed towards the ability of the person to hear; the court should not be concerned with the means by which he might be enabled to hear. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 754.5. Privileged statements; deaf or hearing impaired persons; use of interpreter

Whenever an otherwise valid privilege exists between an individual who is deaf or hearing impaired and another person, that privilege is not waived merely because an interpreter was used to facilitate their communication.

§ 755. Hearings or proceedings related to domestic violence; party not proficient in English; interpreters; fees

(a) In any action or proceeding under Division 10 (commencing with Section 6200) of the Family Code, and in any action or proceeding under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12 of the Family Code) or for dissolution or nullity of marriage or legal separation of the parties in which a protective order has been granted or is being sought pursuant to Section 6221 of the Family Code, in which a party does not proficiently speak or understand the English language, and that party is present, an interpreter, as provided in this section, shall be present to interpret the proceedings in a language that the party understands, and to assist communication between the party and his or her attorney. Notwithstanding this requirement, a court may issue an ex parte order pursuant to Sections 2045 and 7710 of, and Article 1 (commencing with Section 6320) of Chapter 2 of Part 4 of Division 10 of the Family Code, without the presence of an interpreter. The interpreter selected shall be certified pursuant to Article 4 (commencing with Section 68560) of Chapter 2 of Title 8 of the Government Code, unless the court in its discretion appoints an interpreter who is not certified.

(b) The fees of interpreters utilized under this section shall be paid as provided in subdivision (b) of Section 68092 of the Government Code. However, the fees of an interpreter shall be waived for a party who needs an interpreter and appears in forma pauperis pursuant to Section 68511.3 of the Government Code. The Judicial Council shall amend subdivision (i) of California Rule of Court 985 and revise its forms accordingly by July 1, 1996.

(c) In any civil action in which an interpreter is required under this section, the court shall not commence proceedings until the appointed interpreter is present and situated near the party and his or her attorney. However, this section shall not prohibit the court from doing any of the following:

(1) Issuing an order when the necessity for the order outweighs the necessity for an interpreter.

(2) Extending the duration of a previously issued temporary order if an interpreter is not readily available.

(3) Issuing a permanent order where a party who requires an interpreter fails to make appropriate arrangements for an interpreter after receiving proper notice of the hearing with information about obtaining an interpreter.

(d) This section does not prohibit the presence of any other person to assist a party.

(e) A local public entity may, and the Judicial Council shall, apply to the appropriate state agency that receives federal funds authorized pursuant to the federal Violence Against Women Act (P.L. 103–322) for these federal funds or for funds from sources other than the state to implement this section. A local public entity and the Judicial Council shall comply with the requirements of this section only to the extent that any of these funds are made available.

(f) The Judicial Council shall draft rules and modify forms necessary to implement this section, including those for the petition for a temporary restraining order and related forms, to inform both parties of their right to an interpreter pursuant to this section.

§ 755.5. Medical examinations; parties not proficient in English language; interpreters; fees; admissibility of record

(a) During any medical examination, requested by an insurer or by the defendant, of a person who is a party to a civil action and who does not proficiently speak or understand the English language, conducted for the purpose of determining damages in a civil action, an interpreter shall be present to interpret the examination in a language that the person understands. * * * The interpreter shall be certified pursuant to Article 8 (commencing with Section * * * 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of the Government Code.

(b) The fees of interpreters used under subdivision (a) shall be paid by the insurer or defendant requesting the medical examination.

(c) The record of, or testimony concerning, any medical examination conducted in violation of subdivision (a) shall be inadmissible in the civil action for which it was conducted or any other civil action.

(d) This section does not prohibit the presence of any other person to assist a party.

(e) In the event that interpreters certified pursuant to Article 8 (commencing with Section * * * 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of the Government Code cannot be present at the medical examination, upon stipulation of the parties the requester specified in subdivision (a) shall have the discretionary authority to provisionally qualify and use other interpreters.

CHAPTER 5. METHOD AND SCOPE OF EXAMINATION

ARTICLE 1. DEFINITIONS

§ 760. Direct examination

"Direct examination" is the first examination of a witness upon a matter that is not within the scope of a previous examination of the witness.

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Section 760 restates the substance of and supersedes the first clause of Code of Civil Procedure Section 2045 and the last clause of Code of Civil Procedure Section 2048. Under Section 760, an examination of a witness called by another party is direct examination if the examination relates to a matter that is not within the scope of the previous examination of the witness. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 761. Cross-examination

"Cross-examination" is the examination of a witness by a party other than the direct examiner upon a matter that is within the scope of the direct examination of the witness.

LAW REVISION COMMISSION COMMENT

Section 761 restates the substance of and supersedes the definition of "cross-examination" found in Section 2045 of the Code of Civil Procedure. In accordance with existing law, it limits cross-examination of a witness to the scope of the witness' direct examination. See generally Witkin, California Evidence §§ 622–638 (1958).

Section 761, together with Section 773, retains the cross-examination rule now applicable to a defendant in a criminal action who testifies as a witness in that action. See People v. McCarthy, 88 Cal.App.2d 883, 200 P.2d 69 (1948). See also People v. Arrighini, 122 Cal. 121, 54 Pac. 591 (1898); People v. O'Brien, 66 Cal. 602, 6 Pac. 695 (1885); Witkin, California Evidence § 629 (1958). See also Evidence Code § 772(d). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 762. Redirect examination

"Redirect examination" is an examination of a witness by the direct examiner subsequent to the cross-examination of the witness.

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"Redirect examination" and "recross-examination" are not defined in existing statutes, but the terms are recognized in practice. See Witkin, California Evidence §§ 697, 698 (1958). The scope of redirect and recross-examination is limited by Section 774.

The definition of "redirect examination" embraces not only the examination immediately following cross-examination of the witness but also any subsequent re-examination of the witness by the direct examiner. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 763. Recross-examination

"Recross-examination" is an examination of a witness by a cross-examiner subsequent to a redirect examination of the witness.

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See the Comment to Section 762. The definition of "recross-examination" embraces not only the examination immediately following the first redirect examination of the witness but also any subsequent re-examination of the witness by a cross-examiner. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 764. Leading question

A "leading question" is a question that suggests to the witness the answer that the examining party desires.

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Section 764 restates the substance of and supersedes the first sentence of Section 2046 of the Code of Civil Procedure. For restrictions on the use of leading questions in the examination of a witness, see Evidence Code § 767 and the Comment thereto. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

ARTICLE 2. EXAMINATION OF WITNESSES

§ 765. Court to control mode of interrogation

(a) The court shall exercise reasonable control over the mode of interrogation of a witness so as to make such interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment.

(b) With a witness under the age of 14 or a dependant person with a substantial cognitive impairment, the court shall take special care to protect him or her from undue harassment or embarrassment, and to restrict the unnecessary repetition of questions. The court shall also take special care to ensure that questions are stated in a form which is appropriate to the age or cognitive level of the witness. The court may in the interests of justice, on objection by a party, forbid the asking of a question which is in a form that is not reasonably likely to be understood by a person of the age or cognitive level of the witness.

LAW REVISION COMMISSION COMMENT

Section 765 restates the substance of and supersedes Section 2044 of the Code of Civil Procedure. As to the latitude permitted the judge in controlling the examination of witnesses under existing law, which is continued in effect by Section 765, see Commercial Union Assur. Co. v. Pacific Gas & Elec. Co., 220 Cal. 515, 31 P.2d 793 (1934). See also People v. Davis, 6 Cal.App. 229, 91 Pac. 810 (1907). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 766. Responsive answers

A witness must give responsive answers to questions, and answers that are not responsive shall be stricken on motion of any party.

§ 767. Leading questions

(a) Except under special circumstances where the interests of justice otherwise require:

(1) A leading question may not be asked of a witness on direct or redirect examination.

(2) A leading question may be asked of a witness on cross-examination or recross-examination.

(b) The court may in the interests of justice permit a leading question to be asked of a child under 10 years of age or a dependent person with a substantial cognitive impairment in a case involving a prosecution under Section 273a, 273d, 288.5, 368, or any of the acts described in Section 11165.1 or 11165.2 of the Penal Code.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Subdivision (a) restates the substance of and supersedes the last sentence of Section 2046 of the Code of Civil Procedure. Subdivision (b) is based on and supersedes a phrase that appears in Code of Civil Procedure Section 2048.

The exception stated at the beginning of the section continues the present law that permits leading questions on direct examination where there is little danger of improper suggestion or where such questions are necessary to obtain relevant evidence. This would permit leading questions on direct examination for preliminary matters, refreshing recollection, and examining handicapped witnesses, expert witnesses, and hostile witnesses. See Witkin, California Evidence §§ 591, 592 (1958); 3 Wigmore, Evidence § 769 et seq. (3d ed. 1940). The court may also forbid the asking of leading questions on cross-examination where the witness is biased in favor of the cross-examiner and would be unduly susceptible to the influence of questions that suggested the desired answer. See 3 Wigmore, Evidence § 773 (3d ed. 1940).

§ 768. Writings

(a) In examining a witness concerning a writing, it is not necessary to show, read, or disclose to him any part of the writing.

(b) If a writing is shown to a witness, all parties to the action must be given an opportunity to inspect it before any question concerning it may be asked of the witness.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Existing law apparently does not require that a writing (other than one containing prior inconsistent statements used for impeachment purposes) be shown to a witness before he can be examined concerning it. Section 2054 of the Code of Civil Procedure, which seems to so require, actually requires only that the adverse party be given an opportunity to inspect any writing that is actually shown to a witness before the witness can be examined concerning the writing. See People v. Briggs, 58 Cal.2d 385, 413, 24 Cal.Rptr. 417, 435, 374 P.2d 257, 275 (1962); People v. Keyes, 103 Cal.App. 624, 284 Pac. 1096 (1930) (hearing denied); People v. De Angelli, 34 Cal.App. 716, 168 Pac. 699 (1917). Section 768 clarifies whatever doubt may exist in this regard by declaring that such a writing need not be shown to the witness before he can be examined concerning it. Of course, the best evidence rule may in some cases preclude eliciting testimony concerning the content of a writing. See Evidence Code § 1500 and the Comment thereto.

Insofar as Section 768 relates to prior inconsistent statements that are in writing, see the Comment to Section 769.

Subdivision (b) of Section 768 preserves the right of the adverse party to inspect a writing that is actually shown to a witness before the witness can be examined concerning it. As indicated above, this preserves the existing requirement declared in Code of Civil Procedure Section 2054. However, the right of inspection has been extended to all parties to the action.

§ 769. Inconsistent statement or conduct

In examining a witness concerning a statement or other conduct by him that is inconsistent with any part of his testimony at the hearing, it is not necessary to disclose to him any information concerning the statement or other conduct.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Section 769 is consistent with the existing California law regarding the examination of a witness concerning prior inconsistent oral statements. Under existing law, a party need not disclose to a witness any information concerning a prior inconsistent oral statement of the witness before asking him questions about the statement. People v. Kidd, 56 Cal.2d 759, 765, 16 Cal.Rptr. 793, 796–797, 366 P.2d 49, 52–53 (1961); People v. Campos, 10 Cal.App.2d 310, 317, 52 P.2d 251, 254 (1935). However, if a witness' prior inconsistent statements are in writing or, as in the case of former oral testimony, have been reduced to writing, "they must be shown to the witness before any question is put to him concerning them." Code Civ.Proc. § 2052 (superseded by Evidence Code § 768); Umemoto v. McDonald, 6 Cal.2d 587, 592, 58 P.2d 1274, 1276 (1936).

Section 769 eliminates the distinction made in existing law between oral and written statements and permits a witness to be asked questions concerning a prior inconsistent statement, whether written or oral, even though no disclosure is made to him concerning the prior statement. (Whether a foundational showing is required before other evidence of the prior statement may be admitted is not covered in Section 769; the prerequisites for the admission of such evidence are set forth in Section 770.) The disclosure of inconsistent written statements that is required under existing law limits the effectiveness of cross-examination by removing the element of surprise. The forewarning gives the dishonest witness the opportunity to reshape his testimony in conformity with the prior statement. The existing rule is based on an English common law rule that has been abandoned in England for 100 years. See McCormick, Evidence § 28 at 53 (1954).

§ 770. Evidence of inconsistent statement of witness; exclusion; exceptions

Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless:

(a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or

(b) The witness has not been excused from giving further testimony in the action.

LAW REVISION COMMISSION COMMENT

Under Section 2052 of the Code of Civil Procedure, extrinsic evidence of a witness' inconsistent statement may be admitted only if the witness was given the opportunity, while testifying, to explain or deny the contradictory statement. Permitting a witness to explain or deny an alleged inconsistent statement is desirable, but there is no compelling reason to provide the opportunity for explanation before the inconsistent statement is introduced in evidence. Accordingly, unless the interests of justice otherwise require, Section 770 permits the judge to exclude evidence of an inconsistent statement only if the witness during his examination was not given an opportunity to explain or deny the statement and he has been unconditionally excused and is not subject to being recalled as a witness. Among other things, Section 770 will permit more effective cross-examination and impeachment of several collusive witnesses, since there need be no disclosure of prior inconsistency before all such witnesses have been examined.

Where the interests of justice require it, the court may permit extrinsic evidence of an inconsistent statement to be admitted even though the witness has been excused and has had no opportunity to explain or deny the statement. An absolute rule forbidding introduction of such evidence where the specified conditions are not met may cause hardship in some cases. For example, the party seeking to introduce the statement may not have learned of its existence until after the witness has left the court and is no longer available to testify. For the foundational requirements for the admission of a hearsay declarant's inconsistent statement, see Evidence Code § 1202 and the Comment thereto. [7 Cal.L.Rev.Comm.Reports 1 (1965)]

§ 771. Production of writing used to refresh memory

(a) Subject to subdivision (c), if a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which he testifies, such writing must be produced at the hearing at the request of an adverse party and, unless the writing is so produced, the testimony of the witness concerning such matter shall be stricken.

(b) If the writing is produced at the hearing, the adverse party may, if he chooses, inspect the writing, cross-examine the witness concerning it, and introduce in evidence such portion of it as may be pertinent to the testimony of the witness.

(c) Production of the writing is excused, and the testimony of the witness shall not be stricken, if the writing:

(1) Is not in the possession or control of the witness or the party who produced his testimony concerning the matter; and

(2) Was not reasonably procurable by such party through the use of the court's process or other available means.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Section 771 grants to an adverse party the right to inspect any writing used to refresh a witness' recollection, whether the writing is used by the witness while testifying or prior thereto. The right of inspection granted by Section 771 may be broader than the similar right of inspection granted by Section 2047 of the Code of Civil Procedure, for Section 2047 has been interpreted by the courts to grant a right of inspection of only those writings used by the witness while he is testifying. People v. Gallardo, 41 Cal.2d 57, 257 P.2d 29 (1953); People v. Grayson, 172 Cal.App.2d 372, 341 P.2d 820 (1959); Smith v. Smith, 135 Cal.App.2d 100, 286 P.2d 1009 (1955). In a criminal case, however, the defendant can compel the prosecution to produce any written statement of a prosecution witness relating to matters covered in the witness' testimony. People v. Estrada, 54 Cal.2d 713, 7 Cal.Rptr. 897, 355 P.2d 641 (1960). The extent to which the public policy reflected in criminal discovery practice overrides the restrictive interpretation of Code of Civil Procedure Section 2047 is not clear. See Witkin, California Evidence § 602 (Supp. 1963). In any event, Section 771 follows the lead of the criminal cases, such as People v. Silberstein, 159 Cal.App.2d Supp. 848, 323 P.2d 591 (1958) (defendant entitled to inspect police report used by police officer to refresh his recollection before testifying), and grants a right of inspection without regard to when the writing is used to refresh recollection. If a witness' testimony depends upon the use of a writing to refresh his recollection, the adverse party's right to inspect the writing should not be made to depend upon the happenstance of when the writing is used.

Subdivision (b) gives an adverse party the right to introduce the refreshing memorandum into evidence. An adverse party has a similar right under Code of Civil Procedure Section 2047, which is superseded by this section. This right is not unlimited, however. Only those parts of the refreshing memorandum that are pertinent to the testimony given by the witness are admissible under this rule. Cf. People v. Silberstein, 159 Cal.App.2d Supp. 848, 851–852, 323 P.2d 591, 593 (1958) ("the right to inspect [a refreshing writing] cannot be denied although its admission in evidence may be refused if ... its contents are immaterial"); Dragash v. Western Pac. R.R., 161 Cal.App.2d 233, 326 P.2d 649 (1958). See also Evidence Code § 356 and the Comment thereto.

Subdivision (c) excuses the nonproduction of the memory-refreshing writing where the writing cannot be produced through no fault of the witness or the party eliciting his testimony concerning the matter. The rule is analogous to the rule announced in People v. Parham, 60 Cal.2d 378, 33 Cal.Rptr. 497, 384 P.2d 1001 (1963), which affirmed an order denying defendant's motion to strike certain witnesses' testimony where the witnesses' prior statements were withheld by the Federal Bureau of Investigation.

It should be noted that there is no restriction in the Evidence Code on the means that may be used to refresh recollection. Thus, the limitations on the types of writings that may be used as recorded memory under Section 1237 do not limit the types of writings that may be used to refresh recollection under Section 771.

§ 772. Order of examination

(a) The examination of a witness shall proceed in the following phases: direct examination, cross-examination, redirect examination, recross-examination, and continuing thereafter by redirect and recross-examination.

(b) Unless for good cause the court otherwise directs, each phase of the examination of a witness must be concluded before the succeeding phase begins.

(c) Subject to subdivision (d), a party may, in the discretion of the court, interrupt his cross-examination, redirect examination, or recross-examination of a witness, in order to examine the witness upon a matter not within the scope of a previous examination of the witness.

(d) If the witness is the defendant in a criminal action, the witness may not, without his consent, be examined under direct examination by another party.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Subdivision (a) codifies existing but nonstatutory California law. See Witkin, California Evidence § 576 at 631 (1958).

Subdivision (b) is based on and supersedes the second sentence of Section 2045 of the Code of Civil Procedure. The language of the existing section has been expanded, however, to require completion of each phase of examination of the witness, not merely the direct examination.

Under subdivision (c), as under existing law, a party examining a witness under cross-examination, redirect examination, or recross-examination may go beyond the scope of the initial direct examination if the court permits. See Code Civ.Proc. §§ 2048 (last clause), 2050; Witkin, California Evidence §§ 627, 697 (1958). Under the definition in Section 760, such an extended examination is direct examination. Cf. Code Civ.Proc. § 2048 ("such examination is to be subject to the same rules as a direct examination"). Such direct examination may, however, be subject to the rules applicable to a cross-examination by virtue of the provisions of Section 776, 804, or 1203.

Subdivision (d) states an exception for the defendant-witness in a criminal action that reflects existing law. See Witkin, California Evidence § 629 at 676 (1958).

§ 773. Cross-examination

(a) A witness examined by one party may be cross-examined upon any matter within the scope of the direct examination by each other party to the action in such order as the court directs.

(b) The cross-examination of a witness by any party whose interest is not adverse to the party calling him is subject to the same rules that are applicable to the direct examination.

LAW REVISION COMMISSION COMMENT

Subdivision (a) restates the substance of Sections 2045 (part) and 2048 of the Code of Civil Procedure and Section 1323 of the Penal Code.

Subdivision (b) is based on the holding in Atchison, T. & S.F. Ry. v. Southern Pac. Co., 13 Cal.App.2d 505, 57 P.2d 575 (1936). That case held that a party not adverse to the direct examiner of a witness did not have the right to cross-examine the witness. Under subdivision (a), such a party would have the right to cross-examine the witness upon any matter within the scope of the direct examination, but he would be prohibited by Section 767 from asking leading questions during such examination. If the witness testifies on direct examination to matters that are, in fact, antagonistic to a party's position, he may be permitted to cross-examine with leading questions even though from a technical point of view the interest of the cross-examiner is not adverse to that of the direct examiner. Cf. McCarthy v. Mobile Cranes, Inc., 199 Cal.App.2d 500, 18 Cal.Rptr. 750 (1962). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 774. Re-examination

A witness once examined cannot be reexamined as to the same matter without leave of the court, but he may be reexamined as to any new matter upon which he has been examined by another party to the action. Leave may be granted or withheld in the court's discretion.

LAW REVISION COMMISSION COMMENT

Section 774 is based on and supersedes the first and third sentences of Section 2050 of the Code of Civil Procedure. The nature of a re-examination is to be determined in accordance with the definitions in Sections 760–763. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 775. Court may call witnesses

The court, on its own motion or on the motion of any party, may call witnesses and interrogate them the same as if they had been produced by a party to the action, and the parties may object to the questions asked and the evidence adduced the same as if such witnesses were called and examined by an adverse party. Such witnesses may be cross-examined by all parties to the action in such order as the court directs.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

The power of the judge to call expert witnesses is well recognized by statutory and case law in California. Code Civ.Proc. § 1871 (recodified as Section 723 and Article 2 (commencing with Section 730) of Chapter 3); Penal Code § 1027; Citizens State Bank v. Castro, 105 Cal.App. 284, 287 Pac. 559 (1930). See also Code Civ.Proc. §§ 1884 and 1885 (interpreters), continued in substance by Chapter 4 (commencing with Section 750).

The power of the judge to call other witnesses is also recognized by case law. Travis v. Southern Pac. Co., 210 Cal.App.2d 410, 425, 26 Cal.Rptr. 700, 707–708 (1962) ("[W]e have been cited to no case, nor has our independent research disclosed any case, dealing with a civil action in which a witness has been called to the stand by the court, over objection of a party. However, we can see no difference in this respect between a civil and a criminal case. In both, the endeavor of the court and the parties should be to get at the truth of the matter in contest. Fundamentally, there is no reason why the court in the interests of justice should not call to the stand anyone who appears to have relevant, competent and material information.").

Of course, the judge would be guilty of misconduct were he to show partiality or bias in calling and interrogating witnesses. See 2 Witkin, California Procedure, Trial §§ 14–17 (1954).

§ 776. Examination of adverse party or person identified with adverse party

(a) A party to the record of any civil action, or a person identified with such a party, may be called and examined as if under cross-examination by any adverse party at any time during the presentation of evidence by the party calling the witness.

(b) A witness examined by a party under this section may be cross-examined by all other parties to the action in such order as the court directs; but, subject to subdivision (e), the witness may be examined only as if under redirect examination by:

(1) In the case of a witness who is a party, his own counsel and counsel for a party who is not adverse to the witness.

(2) In the case of a witness who is not a party, counsel for the party with whom the witness is identified and counsel for a party who is not adverse to the party with whom the witness is identified.

(c) For the purpose of this section, parties represented by the same counsel are deemed to be a single party.

(d) For the purpose of this section, a person is identified with a party if he is:

(1) A person for whose immediate benefit the action is prosecuted or defended by the party.

(2) A director, officer, superintendent, member, agent, employee, or managing agent of the party or of a person specified in paragraph (1), or any public employee of a public entity when such public entity is the party.

(3) A person who was in any of the relationships specified in paragraph (2) at the time of the act or omission giving rise to the cause of action.

(4) A person who was in any of the relationships specified in paragraph (2) at the time he obtained knowledge of the matter concerning which he is sought to be examined under this section.

(e) Paragraph (2) of subdivision (b) does not require counsel for the party with whom the witness is identified and counsel for a party who is not adverse to the party with whom the witness is identified to examine the witness as if under redirect examination if the party who called the witness for examination under this section:

(1) Is also a person identified with the same party with whom the witness is identified.

(2) Is the personal representative, heir, successor, or assignee of a person identified with the same party with whom the witness is identified.

LAW REVISION COMMISSION COMMENT

1965 Enactment

Section 776 restates the substance of Code of Civil Procedure Section 2055 as it has been interpreted by the courts. See Witkin, California Evidence §§ 607–613 (1958), and pertinent cases cited and discussed therein.

Subdivision (a). Subdivision (a) restates the provisions of Section 2055 that permit a party to call and examine as if under cross-examination an adverse party and certain adverse witnesses. However, Section 776 substitutes the phrase "or a person identified with such a party" for the confusing enumeration of persons listed in the first sentence of Section 2055. This phrase is defined in subdivision (d) of Section 776 to include all of the persons presently named in Section 2055. See the Comment to subdivision (d), infra.

Subdivision (b). Subdivision (b) is based in part on similar provisions contained in Code of Civil Procedure Section 2055. Unlike Section 2055, however, this subdivision is drafted in recognition of the problems involved in multiple party litigation. Thus, the introductory portion of subdivision (b) states the general rule that a witness examined under this section may be cross-examined by all other parties to the action in such order as the court directs. For example, a party whose interest in the action is identical with that of the party who called the witness for examination under this section has a right to cross-examine the witness fully because he, too, has the right to call the witness for examination under this section. Similarly, a party whose interest in the action is adverse to the party who calls the witness for examination under this section has the right to cross-examine the witness fully unless he is identified with the witness as described in paragraphs (1) and (2) of this subdivision. Paragraphs (1) and (2) restrict the nature of the cross-examination permitted of a witness by a party with whom the witness is identified and by parties whose interest in the action is not adverse to the party with whom the witness is identified. These parties are limited to examination of the witness as if under redirect examination. In essence, this means that leading questions cannot be asked of the witness by these parties. See Evidence Code § 767. Although the examination must proceed as if it were a redirect examination, under Section 761 it is in fact a cross-examination and limited to the scope of the direct. See also Evidence Code §§ 760, 773.

Subdivision (c). Subdivision (c) codifies a principle that has been recognized in the California cases even though not explicitly stated in Code of Civil Procedure Section 2055. See Gates v. Pendleton, 71 Cal.App. 752, 236 Pac. 365 (1925); Goehring v. Rogers, 67 Cal.App. 260, 227 Pac. 689 (1924).

Subdivision (d). Subdivision (d) lists the classes of persons who are "identified with a party" as that phrase and variations of it are used in subdivisions (a) and (b) of Section 776. The persons named in paragraphs (1) and (2) are those described in the first sentence of Code of Civil Procedure Section 2055 as being subject to examination pursuant to the section because of a particular relationship to a party. See the definitions of "person," "public employee," and "public entity" in Evidence Code §§ 175, 195, and 200, respectively. In addition, paragraph (3) of this subdivision describes persons who were in any of the requisite relationships at the time of the act or omission giving rise to the cause of action. This states existing case law. Scott v. Del Monte Properties, Inc., 140 Cal.App.2d 756, 295 P.2d 947 (1956); Wells v. Lloyd, 35 Cal.App.2d 6, 94 P.2d 373 (1939). Similarly, paragraph (4) extends this principle to include any person who obtained relevant knowledge as a result of such a relationship but who does not fit the precise descriptions contained in paragraphs (1) through (3). For example, a person whose employment by a party began after the cause of action arose and terminated prior to the time of his examination at the trial would be included in the description contained in paragraph (4) if he obtained relevant knowledge of the incident as a result of his employment. It is not clear whether this states existing law, for no California decision has been found that decides this question. The paragraph is necessary, however, to preclude a party from preventing examination of his employee pursuant to this section by the simple expedient of discharging the employee prior to trial and reinstating him afterwards. Cf. Wells v. Lloyd, 35 Cal.App.2d 6, 12, 94 P.2d 373, 376–377 (1939). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

1967 Amendment

Section 776 permits a party calling as a witness an employee of (or someone similarly identified in interest with) an adverse party to examine the witness as if under cross-examination, i.e., to use leading questions in his examination. Section 776 requires the party whose employee was thus called and examined to examine the witness as if under redirect examination, i.e., to refrain from the use of leading questions. If a party is able to persuade the court that the usual rule prescribed by Section 776 is not in the interest of justice in a particular case, the court may enlarge or restrict the right to use leading questions as provided in Section 767.

These rules are based on the premise that ordinarily such a witness will have a feeling of identification in the lawsuit with his employer rather than with the other party to the action.

Subdivision (b) has been amended, and subdivision (e) has been added, because the premise upon which Section 776 is based does not necessarily apply when the party calling the witness is also closely identified with the adverse party; hence, the adverse party should be entitled to the usual rights of a cross-examiner when he examines the witness. For example, when an employee sues his employer and calls a co-employee as a witness, there is no reason to assume that the witness will be adverse to the employee-party and in sympathy with the employer-party. The reverse may be the case. The amendment to Section 776 will permit an employer, as a general rule, to use leading questions in his cross-examination of an employee-witness who has been called to testify under Section 776 by a co-employee. However, if the party calling the witness can satisfy the court that the witness is in fact identified in interest with the employer or for some other reason is amenable to suggestive questioning by the employer, the court may limit the employer's use of leading questions during his examination of the witness pursuant to Section 767. See J. & B. Motors, Inc. v. Margolis, 75 Ariz. 392, 257 P.2d 588 (1953). [8 Cal.L.Rev.Comm. Reports 101 (1967)]

§ 777. Exclusion of witness

(a) Subject to subdivisions (b) and (c), the court may exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses.

(b) A party to the action cannot be excluded under this section.

(c) If a person other than a natural person is a party to the action, an officer or employee designated by its attorney is entitled to be present.

LAW REVISION COMMISSION COMMENT

Section 777 is based on and supersedes Section 2043 of the Code of Civil Procedure. Under the existing law, the judge exercises broad discretion in regard to the exclusion of witnesses. People v. Lariscy, 14 Cal.2d 30, 92 P.2d 638 (1939); People v. Garbutt, 197 Cal. 200, 239 Pac. 1080 (1925). Cf. Penal Code § 867 (power of magistrate to exclude witnesses during preliminary examination). See also Code Civ.Proc. § 125 (general discretionary power of the court to exclude witnesses).

Under the existing law, the judge may not exclude a party to an action. If the party is a corporation, an officer designated by its attorney is entitled to be present. Section 777 permits the right of presence to be exercised by an employee as well as an officer. Also, because there is little practical distinction between corporations and other artificial entities and organizations, Section 777 extends the right of presence to all artificial parties. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 778. Recall of witness

After a witness has been excused from giving further testimony in the action, he cannot be recalled without leave of the court. Leave may be granted or withheld in the court's discretion.

LAW REVISION COMMISSION COMMENT

Section 778 restates the substance of and supersedes the second and third sentences of Section 2050 of the Code of Civil Procedure. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

CHAPTER 6. CREDIBILITY OF WITNESSES

ARTICLE 1. CREDIBILITY GENERALLY

§ 780. Testimony; proof of truthfulness; considerations

Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following:

(a) His demeanor while testifying and the manner in which he testifies.

(b) The character of his testimony.

(c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies.

(d) The extent of his opportunity to perceive any matter about which he testifies.

(e) His character for honesty or veracity or their opposites.

(f) The existence or nonexistence of a bias, interest, or other motive.

(g) A statement previously made by him that is consistent with his testimony at the hearing.

(h) A statement made by him that is inconsistent with any part of his testimony at the hearing.

(i) The existence or nonexistence of any fact testified to by him.

(j) His attitude toward the action in which he testifies or toward the giving of testimony.

(k) His admission of untruthfulness.

LAW REVISION COMMISSION COMMENT

Section 780 is a restatement of the existing California law as declared in several sections of the Code of Civil Procedure, all of which are superseded by this section and other sections in Article 2 (commencing with Section 785) of this chapter. See, e.g., Code Civ.Proc. §§ 1847, 2049, 2051, 2052, 2053.

Section 780 is a general catalog of those matters that have any tendency in reason to affect the credibility of a witness. So far as the admissibility of evidence relating to credibility is concerned, Section 780 is technically unnecessary because Section 351 declares that "all relevant evidence is admissible." However, this section makes it clear that matters that may not be "evidence" in a technical sense can affect the credibility of a witness, and it provides a convenient list of the most common factors that bear on the question of credibility. See Davis v. Judson, 159 Cal. 121, 128, 113 Pac. 147, 150 (1910); La Jolla Casa de Manana v. Hopkins, 98 Cal.App.2d 339, 346, 219 P.2d 871, 876 (1950). See generally Witkin, California Evidence §§ 480–485 (1958). Limitations on the admissibility of evidence offered to attack or support the credibility of a witness are stated in Article 2 (commencing with Section 785).

There is no specific limitation in the Evidence Code on the use of impeaching evidence on the ground that it is "collateral". The so-called "collateral matter" limitation on attacking the credibility of a witness excludes evidence relevant to credibility unless such evidence is independently relevant to the issue being tried. It is based on the sensible notion that trials should be confined to settling those disputes between the parties upon which their rights in the litigation depend. Under existing law, this "collateral matter" doctrine has been treated as an inflexible rule excluding evidence relevant to the credibility of the witness. See, e.g., People v. Wells, 33 Cal.2d 330, 340, 202 P.2d 53, 59 (1949), and cases cited therein.

The effect of Section 780 (together with Section 351) is to eliminate this inflexible rule of exclusion. This is not to say that all evidence of a collateral nature offered to attack the credibility of a witness would be admissible. Under Section 352, the court has substantial discretion to exclude collateral evidence. The effect of Section 780, therefore, is to change the present somewhat inflexible rule of exclusion to a rule of discretion to be exercised by the trial judge.

There is no limitation in the Evidence Code on the use of opinion evidence to prove the character of a witness for honesty, veracity, or the lack thereof. Hence, under Sections 780 and 1100, such evidence is admissible. This represents a change in the present law. See People v. Methvin, 53 Cal. 68 (1878). However, the opinion evidence that may be offered by those persons intimately familiar with the witness is likely to be of more probative value than the generally admissible evidence of reputation. See 7 Wigmore, Evidence § 1986 (3d ed. 1940). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 782. Sexual offenses; evidence of sexual conduct of complaining witness; procedure for admissibility; treatment of resealed affidavits

(a) In any of the circumstances described in subdivision (c), if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness under Section 780, the following procedure shall be followed:

(1) A written motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness.

(2) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated. The affidavit shall be filed under seal and only unsealed by the court to determine if the offer of proof is sufficient to order a hearing pursuant to paragraph (3). After that determination, the affidavit shall be resealed by the court.

(3) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant.

(4) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352 of this code, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court.

(5) An affidavit resealed by the court pursuant to paragraph (2) shall remain sealed, unless the defendant raises an issue on appeal or collateral review relating to the offer of proof contained in the sealed document. If the defendant raises that issue on appeal, the court shall allow the Attorney General and appellate counsel for the defendant access to the sealed affidavit. If the issue is raised on collateral review, the court shall allow the district attorney and defendant's counsel access to the sealed affidavit. The use of the information contained in the affidavit shall be limited solely to the pending proceeding.

(b) As used in this section, "complaining witness" means:

(1) The alleged victim of the crime charged, the prosecution of which is subject to this section, pursuant to paragraph (1) of subdivision (c).

(2) An alleged victim offering testimony pursuant to paragraph (2) or paragraph (3) of subdivision (c).

(c) The procedure provided by subdivision (a) shall apply in any of the following circumstances:

(1) In a prosecution under Section 261, 262, 264.1, 286, 288, 288a, 288.5, or 289 of the Penal Code, or for assault with intent to commit, attempt to commit, or conspiracy to commit any crime defined in any of those sections, except if the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4 of the Penal Code, or in the state prison, as defined in Section 4504.

(2) When an alleged victim testifies pursuant to subdivision (b) of Section 1101 as a victim of a crime listed in Section 243.4, 261, 261.5, 269, 285, 286, 288, 288a, 288.5, 289, 314, or 647.6 of the Penal Code, except if the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4 of the Penal Code, or in the state prison, as defined in Section 4504 of the Penal Code.

(3) When an alleged victim of a sexual offense testifies pursuant to Section 1108, except if the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4 of the Penal Code, or in the state prison, as defined in Section 4504 of the Penal Code.

§ 783. Sexual harassment, sexual assault, or sexual battery cases; admissibility of evidence of plaintiff's sexual conduct; procedure

In any civil action alleging conduct which constitutes sexual harassment, sexual assault, or sexual battery, if evidence of sexual conduct of the plaintiff is offered to attack credibility of the plaintiff under Section 780, the following procedures shall be followed:

(a) A written motion shall be made by the defendant to the court and the plaintiff's attorney stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the plaintiff proposed to be presented.

(b) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.

(c) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the plaintiff regarding the offer of proof made by the defendant.

(d) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the plaintiff is relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court.

ARTICLE 2. ATTACKING OR SUPPORTING CREDIBILITY

§ 785. Parties may attack or support credibility

The credibility of a witness may be attacked or supported by any party, including the party calling him.

LAW REVISION COMMISSION COMMENT

Section 785 eliminates the present restriction on attacking the credibility of one's own witness. Under the existing law, a party is precluded from attacking the credibility of his own witness unless he has been surprised and damaged by the witness' testimony. Code Civ.Proc. §§ 2049, 2052 (superseded by Evidence Code §§ 768, 769, 770, 785); People v. LeBeau, 39 Cal.2d 146, 148, 245 P.2d 302, 303 (1952). In large part, the present law rests upon the theory that a party producing a witness is bound by his testimony. See discussion in Smellie v. Southern Pac. Co., 212 Cal. 540, 555–556, 299 Pac. 529, 535 (1931). This theory has long been abandoned in several jurisdictions where the practical exigencies of litigation have been recognized. See McCormick, Evidence § 38 (1954). A party has no actual control over a person who witnesses an event and is required to testify to aid the trier of fact in its function of determining the truth. Hence, a party should not be "bound" by the testimony of a witness produced by him and should be permitted to attack the credibility of the witness without anachronistic limitations. Denial of the right to attack credibility may often work a hardship on a party where by necessity he must call a hostile witness. Expanded opportunity for testing credibility is in keeping with the interest of providing a forum for full and free disclosure. In regard to attacking the credibility of a "necessary" witness, see generally People v. McFarlane, 134 Cal. 618, 66 Pac. 865 (1901); Anthony v. Hobbie, 85 Cal.App.2d 798, 803–804, 193 P.2d 748, 751 (1948); First Nat'l Bank v. De Moulin, 56 Cal.App. 313, 321, 205 Pac. 92, 96 (1922). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 786. Character evidence generally

Evidence of traits of his character other than honesty or veracity, or their opposites, is inadmissible to attack or support the credibility of a witness.

LAW REVISION COMMISSION COMMENT

Section 786 limits evidence relating to the character of a witness to the character traits necessarily involved in a proper determination of credibility. Other character traits are not sufficiently probative of a witness' honesty or veracity to warrant their consideration on the issue of credibility.

Section 786 is substantially in accord with the present California law. Code Civ.Proc. § 2051 (superseded by Evidence Code §§ 780, 785–788); People v. Yslas, 27 Cal. 630, 633 (1865). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 787. Specific instances of conduct

Subject to Section 788, evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness.

LAW REVISION COMMISSION COMMENT

Under Section 787, as under existing law, evidence of specific instances of a witness' conduct is inadmissible to prove a trait of his character for the purpose of attacking or supporting his credibility. See Sharon v. Sharon, 79 Cal. 633, 673–674, 22 Pac. 26, 38 (1889); Code Civ.Proc. § 2051 (superseded by Section 787 and several other sections in Chapter 6). Section 787 is subject, however, to Section 788, which permits certain kinds of criminal convictions to be used for the purpose of attacking a witness' credibility. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 788. Prior felony conviction

For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony unless:

(a) A pardon based on his innocence has been granted to the witness by the jurisdiction in which he was convicted.

(b) A certificate of rehabilitation and pardon has been granted to the witness under the provisions of Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code.

(c) The accusatory pleading against the witness has been dismissed under the provisions of Penal Code Section 1203.4, but this exception does not apply to any criminal trial where the witness is being prosecuted for a subsequent offense.

(d) The conviction was under the laws of another jurisdiction and the witness has been relieved of the penalties and disabilities arising from the conviction pursuant to a procedure substantially equivalent to that referred to in subdivision (b) or (c).

COMMENT—SENATE COMMITTEE ON JUDICIARY

Under Section 787, evidence of specific instances of a witness' conduct is inadmissible for the purpose of attacking or supporting his credibility. Section 788 states an exception to this general rule where the evidence of the witness' misconduct consists of his conviction of a felony. A judgment of conviction that is offered to prove that the person adjudged guilty committed the crime is hearsay. See Evidence Code §§ 1200 and 1300 and the Comments thereto. But the hearsay objection to the evidence specified in Section 788 is overcome by the declaration in the section that such evidence "may be shown" for the purpose of attacking a witness' credibility.

Section 788 is based on Section 2051 of the Code of Civil Procedure. Under Section 788, as under Section 2051, only the testimony of the witness himself or the record of the judgment of conviction may be used to prove the fact of conviction. As Section 788 is, in substance, a recodification of the existing law, it will have no effect on the case-developed rules limiting the circumstances under which a witness may be asked whether he was convicted of a felony. See People v. Perez, 58 Cal.2d 229, 23 Cal.Rptr. 569, 373 P.2d 617 (1962); People v. Darnold, 219 Cal.App.2d 561, 33 Cal.Rptr. 369 (1963).

Subdivision (a) prohibits the use of a conviction to attack the credibility of a witness if a pardon has been granted to the witness on the ground that he was innocent and was erroneously convicted. Subdivision (a) changes the existing California law. Under the existing law, the conviction is admissible to attack credibility, and the pardon—even though based on innocence—is admissible merely to mitigate the effect of the conviction. People v. Hardwick, 204 Cal. 582, 269 Pac. 427 (1928).

Subdivision (b) recodifies the provision of Section 2051 that prohibits the use of a conviction to attack credibility if a pardon has been granted upon the basis of a certificate of rehabilitation. See also Code Civ.Proc. § 2065.

Subdivision (c) recodifies the existing law that prohibits the use of a conviction to attack the credibility of a witness if the conviction has been set aside under Penal Code Section 1203.4. See People v. Mackey, 58 Cal.App. 123, 208 Pac. 135 (1922). The exception that permits the use of such a conviction to attack the credibility of a criminal defendant who testifies as a witness also reflects existing law. See People v. James, 40 Cal.App.2d 740, 105 P.2d 947 (1940).

Subdivision (d) merely provides that a witness who has been relieved of the penalties and disabilities of a prior conviction under the laws of another jurisdiction will be subject to attacks on his credibility under the same conditions that would be applicable if such relief had been granted him under the laws of California.

§ 789. Religious belief

Evidence of his religious belief or lack thereof is inadmissible to attack or support the credibility of a witness.

LAW REVISION COMMISSION COMMENT

Section 789 codifies existing law as expressed in People v. Copsey, 71 Cal. 548, 12 Pac. 721 (1887), where the Supreme Court held that evidence relating to a witness' religious belief or lack thereof is incompetent on the issue of his credibility as a witness. See Cal.Const., Art. I, § 4. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 790. Good character of witness

Evidence of the good character of a witness is inadmissible to support his credibility unless evidence of his bad character has been admitted for the purpose of attacking his credibility.

LAW REVISION COMMISSION COMMENT

Section 790 restates without substantive change a rule that is well recognized by statutory and case law in California. Code Civ.Proc. § 2053 (superseded by Evidence Code §§ 790, 1101); People v. Bush, 65 Cal. 129, 131, 3 Pac. 590, 591 (1884). Unless the credibility of a witness is put in issue by an attack impugning his character for honesty or veracity (see Section 786), evidence of the witness' good character admitted merely to support his credibility introduces collateral material that is unnecessary to a proper determination of any legitimate issue in the action. See People v. Sweeney, 55 Cal.2d 27, 38–39, 9 Cal.Rptr. 793, 799, 357 P.2d 1049, 1055 (1960). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 791. Prior consistent statement of witness

Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after:

(a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or

(b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.

LAW REVISION COMMISSION COMMENT

Section 791 sets forth the conditions for admitting a witness' prior consistent statements for the purpose of supporting his credibility as a witness. For a discussion of the effect to be given to the evidence admitted under this section, see Evidence Code § 1236 and the Comment thereto.

Subdivision (a). Subdivision (a) permits the introduction of a witness' prior consistent statement if evidence of an inconsistent statement of the witness has been admitted for the purpose of attacking his credibility and if the consistent statement was made before the alleged inconsistent statement.

Under existing California law, evidence of a prior consistent statement is admissible to rebut a charge of bias, interest, recent fabrication, or other improper motive. See the Comment to subdivision (b), infra. Existing law may preclude admission of a prior consistent statement to rehabilitate a witness where only a prior inconsistent statement has been admitted for the purpose of attacking his credibility. See People v. Doyell, 48 Cal. 85, 90–91 (1874). However, recent cases indicate that the offering of a prior inconsistent statement necessarily is an implied charge that the witness has fabricated his testimony since the time the inconsistent statement was made and justifies the admission of a consistent statement made prior to the alleged inconsistent statement. People v. Bias, 170 Cal.App.2d 502, 511–512, 339 P.2d 204, 210–211 (1959). Subdivision (a) makes it clear that evidence of a previous consistent statement is admissible under these circumstances to show that no such fabrication took place. Subdivision (a), thus, is no more than a logical extension of the general rule that evidence of a prior consistent statement is admissible to rehabilitate a witness following an express or implied charge of recent fabrication.

Subdivision (b). This subdivision codifies existing law. See People v. Kynette, 15 Cal.2d 731, 104 P.2d 794 (1940) (overruled on other grounds in People v. Snyder, 50 Cal.2d 190, 197, 324 P.2d 1, 6 (1958)). Of course, if the consistent statement was made after the time the improper motive is alleged to have arisen, the logical thrust of the evidence is lost and the statement is inadmissible. See People v. Doetschman, 69 Cal.App.2d 486, 159 P.2d 418 (1945). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

CHAPTER 7. HYPNOSIS OF WITNESSES

§ 795. Testimony of hypnosis subject; admissibility; conditions

(a) The testimony of a witness is not inadmissible in a criminal proceeding by reason of the fact that the witness has previously undergone hypnosis for the purpose of recalling events which are the subject of the witness' testimony, if all of the following conditions are met:

(1) The testimony is limited to those matters that the witness recalled and related prior to the hypnosis.

(2) The substance of the prehypnotic memory was preserved in writing, audio recording, or video recording prior to the hypnosis.

(3) The hypnosis was conducted in accordance with all of the following procedures:

(A) A written record was made prior to hypnosis documenting the subject's description of the event, and information which was provided to the hypnotist concerning the subject matter of the hypnosis.

(B) The subject gave informed consent to the hypnosis.

(C) The hypnosis session, including the pre-and post-hypnosis interviews, was videotape recorded for subsequent review.

(D) The hypnosis was performed by a licensed physician and surgeon, psychologist, licensed clinical social worker, licensed marriage and family therapist, or licensed professional clinical counselor experienced in the use of hypnosis and independent of and not in the presence of law enforcement, the prosecution, or the defense.

(4) Prior to admission of the testimony, the court holds a hearing pursuant to Section 402 at which the proponent of the evidence proves by clear and convincing evidence that the hypnosis did not so affect the witness as to render the witness' prehypnosis recollection unreliable or to substantially impair the ability to cross-examine the witness concerning the witness' prehypnosis recollection. At the hearing, each side shall have the right to present expert testimony and to cross-examine witnesses.

(b) Nothing in this section shall be construed to limit the ability of a party to attack the credibility of a witness who has undergone hypnosis, or to limit other legal grounds to admit or exclude the testimony of that witness.

DIVISION 7. OPINION TESTIMONY AND SCIENTIFIC EVIDENCE

CHAPTER 1. EXPERT AND OTHER OPINION TESTIMONY

ARTICLE 1. EXPERT AND OTHER OPINION TESTIMONY GENERALLY

§ 800. Lay witnesses; opinion testimony

If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is:

(a) Rationally based on the perception of the witness; and

(b) Helpful to a clear understanding of his testimony.

LAW REVISION COMMISSION COMMENT

This section codifies existing law. A witness who is not testifying as an expert may testify in the form of an opinion only if the opinion is based on his own perception. Stuart v. Dotts, 89 Cal.App.2d 683, 201 P.2d 820 (1949). See discussion in Manney v. Housing Authority, 79 Cal.App.2d 453, 459–460, 180 P.2d 69, 73 (1947). And, in addition, the opinion must be "helpful to a clear understanding of his testimony." See Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article VII. Expert and Other Opinion Testimony), 6 Cal.Law Revision Comm'n, Rep., Rec. & Studies 901, 931–935 (1964).

Section 800 does not make inadmissible an opinion that is admissible under existing law, even though the requirements of subdivisions (a) and (b) are not satisfied. Thus, the section does not affect the existing rule that a nonexpert witness may give his opinion as to the value of his property or the value of his own services. See Witkin, California Evidence § 179 (1958). The words "such an opinion as is permitted by law" in Section 800 make this clear. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 801. Expert witness; opinion testimony

If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:

(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and

(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.

LAW REVISION COMMISSION COMMENT

Section 801 deals with opinion testimony of a witness testifying as an expert; it sets the standard for admissibility of such testimony.

Subdivision (a), which states when an expert may give his opinion upon a subject that is within the scope of his expertise, codifies the existing rule that expert opinion is limited to those subjects that are beyond the competence of persons of common experience, training, and education. People v. Cole, 47 Cal.2d 99, 103, 301 P.2d 854, 856 (1956). For examples of the variety of subjects upon which expert testimony is admitted, see Witkin, California Evidence §§ 190–195 (1958).

Subdivision (b) states a general rule in regard to the permissible bases upon which the opinion of an expert may be founded. The California courts have made it clear that the nature of the matter upon which an expert may base his opinion varies from case to case. In some fields of expert knowledge, an expert may rely on statements made by and information received from other persons; in some other fields of expert knowledge, an expert may not do so. For example, a physician may rely on statements made to him by the patient concerning the history of his condition. People v. Wilson, 25 Cal.2d 341, 153 P.2d 720 (1944). A physician may also rely on reports and opinions of other physicians. Kelley v. Bailey, 189 Cal.App.2d 728, 11 Cal.Rptr. 448 (1961); Hope v. Arrowhead & Puritas Waters, Inc., 174 Cal.App.2d 222, 344 P.2d 428 (1959). An expert on the valuation of real or personal property, too, may rely on inquiries made of others, commercial reports, market quotations, and relevant sales known to the witness. Betts v. Southern Cal. Fruit Exchange, 144 Cal. 402, 77 Pac. 993 (1904); Hammond Lumber Co. v. County of Los Angeles, 104 Cal.App. 235, 285 Pac. 896 (1930); Glantz v. Freedman, 100 Cal.App. 611, 280 Pac. 704 (1929). On the other hand, an expert on automobile accidents may not rely on extrajudicial statements of others as a partial basis for an opinion as to the point of impact, whether or not the statements would be admissible evidence. Hodges v. Severns, 201 Cal.App.2d 99, 20 Cal.Rptr. 129 (1962); Ribble v. Cook, 111 Cal.App.2d 903, 245 P.2d 593 (1952). See also Behr v. County of Santa Cruz, 172 Cal.App.2d 697, 342 P.2d 987 (1959) (report of fire ranger as to cause of fire held inadmissible because it was based primarily upon statements made to him by other persons).

Likewise, under existing law, irrelevant or speculative matters are not a proper basis for an expert's opinion. See Roscoe Moss Co. v. Jenkins, 55 Cal.App.2d 369, 130 P.2d 477 (1942) (expert may not base opinion upon a comparison if the matters compared are not reasonably comparable); People v. Luis, 158 Cal. 185, 110 Pac. 580 (1910) (physician may not base opinion as to person's feeblemindedness merely upon the person's exterior appearance); Long v. Cal.–Western States Life Ins. Co., 43 Cal.2d 871, 279 P.2d 43 (1955) (speculative or conjectural data); Eisenmayer v. Leonardt, 148 Cal. 596, 84 Pac. 43 (1906) (speculative or conjectural data). Compare People v. Wochnick, 98 Cal.App.2d 124, 219 P.2d 70 (1950) (expert may not give opinion as to the truth or falsity of certain statements on basis of lie detector test), with People v. Jones, 42 Cal.2d 219, 266 P.2d 38 (1954) (psychiatrist may consider an examination given under the influence of sodium pentothal—the so-called "truth serum"—in forming an opinion as to the mental state of the person examined).

The variation in the permissible bases of expert opinion is unavoidable in light of the wide variety of subjects upon which such opinion can be offered. In regard to some matters of expert opinion, an expert must, if he is going to give an opinion that will be helpful to the jury, rely on reports, statements, and other information that might not be admissible evidence. A physician in many instances cannot make a diagnosis without relying on the case history recited by the patient or on reports from various technicians or other physicians. Similarly, an appraiser must rely on reports of sales and other market data if he is to give an opinion that will be of value to the jury. In the usual case where a physician's or an appraiser's opinion is required, the adverse party also will have its expert who will be able to check the data relied upon by the adverse expert. On the other hand, a police officer can analyze skid marks, debris, and the condition of vehicles that have been involved in an accident without relying on the statements of bystanders; and it seems likely that the jury would be as able to evaluate the statements of others in the light of the physical facts, as interpreted by the officer, as would the officer himself. It is apparent that the extent to which an expert may base his opinion upon the statements of others is far from clear. It is at least clear, however, that it is permitted in a number of instances. See Young v. Bates Valve Bag Corp., 52 Cal.App.2d 86, 96–97, 125 P.2d 840, 846 (1942), and cases therein cited. Cf. People v. Alexander, 212 Cal.App.2d 84, 27 Cal.Rptr. 720 (1963).

It is not practical to formulate a detailed statutory rule that lists all of the matters upon which an expert may properly base his opinion, for it would be necessary to prescribe specific rules applicable to each field of expertise. This is clearly impossible; the subjects upon which expert opinion may be received are too numerous to make statutory prescription of applicable rules a feasible venture. It is possible, however, to formulate a general rule that specifies the minimum requisites that must be met in every case, leaving to the courts the task of determining particular detail within this general framework. This standard is expressed in subdivision (b) which states a general rule that is applicable whenever expert opinion is offered on a given subject.

Under subdivision (b), the matter upon which an expert's opinion is based must meet each of three separate but related tests. First, the matter must be perceived by or personally known to the witness or must be made known to him at or before the hearing at which the opinion is expressed. This requirement assures the expert's acquaintance with the facts of a particular case either by his personal perception or observation or by means of assuming facts not personally known to the witness. Second, and without regard to the means by which an expert familiarizes himself with the matter upon which his opinion is based, the matter relied upon by the expert in forming his opinion must be of a type that reasonably may be relied upon by experts in forming an opinion upon the subject to which his testimony relates. In large measure, this assures the reliability and trustworthiness of the information used by experts in forming their opinions. Third, an expert may not base his opinion upon any matter that is declared by the constitutional, statutory, or decisional law of this State to be an improper basis for an opinion. For example, the statements of bystanders as to the cause of a fire may be considered reliable for some purposes by an investigator of the fire, particularly when coupled with physical evidence found at the scene, but the courts have determined this to be an improper basis for an opinion since the trier of fact is as capable as the expert of evaluating such statements in light of the physical facts as interpreted by the expert. Behr v. County of Santa Cruz, 172 Cal.App.2d 697, 342 P.2d 987 (1959).

The rule stated in subdivision (b) thus permits an expert to base his opinion upon reliable matter, whether or not admissible, of a type that may reasonably be used in forming an opinion upon the subject to which his expert testimony relates. In addition, it provides assurance that the courts and the Legislature are free to continue to develop specific rules regarding the proper bases for particular kinds of expert opinion in specific fields. See, e.g., 3 Cal.Law Revision Comm'n, Rep., Rec. & Studies, Recommendation and Study Relating to Evidence in Eminent Domain Proceedings at A–1 (1961), Subdivision (b) thus provides a sensible standard of admissibility while, at the same time, it continues in effect the discretionary power of the courts to regulate abuses, thereby retaining in large measure the existing California law. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 802. Statement of basis of opinion

A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion. The court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which his opinion is based.

LAW REVISION COMMISSION COMMENT

Section 802 restates the substance of and supersedes a portion of Section 1872 of the Code of Civil Procedure. Section 802, however, relates to all witnesses who testify in the form of opinion, while Section 1872 relates only to experts.

Although Section 802 (like its predecessor, Code of Civil Procedure Section 1872) provides that a witness may state the basis for his opinion on direct examination, it is clear that, in some cases, a witness is required to do so in order to show that his opinion is applicable to the action before the court. Under existing law, where a witness testifies in the form of opinion not based upon his personal observation, the assumed facts upon which his opinion is based must be stated in order to show that the witness has some basis for forming an intelligent opinion and to permit the trier of fact to determine the applicability of the opinion in light of the existence or nonexistence of such facts. Eisenmayer v. Leonardt, 148 Cal. 596, 84 Pac. 43 (1906); Lemley v. Doak Gas Engine Co., 40 Cal.App. 146, 180 Pac. 671 (1919) (hearing denied). Evidence Code Section 802 will not affect the rule set forth in these cases, for it is based essentially on the requirement that all evidence must be shown to be applicable—or relevant—to the action. Evidence Code §§ 350, 403. But under Section 802, as under existing law, a witness testifying from his personal observation of the facts upon which his opinion is based need not be examined concerning such facts before testifying in the form of opinion; his personal observation is a sufficient basis upon which to found his opinion. Lumbermen's Mut. Cas. Co. v. Industrial Acc. Comm'n, 29 Cal.2d 492, 175 P.2d 823 (1946); Hart v. Olson, 68 Cal.App.2d 657, 157 P.2d 385 (1945); Lemley v. Doak Gas Engine Co., supra. However, the court may require a witness to state the facts observed before stating his opinion. In this respect Section 802 codifies the existing rule concerning lay witnesses and, although the existing law is unclear, probably states the existing rule as to expert witnesses. See Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article VII. Expert and Other Opinion Testimony), 6 Cal.Law Revision Comm'n, Rep., Rec. & Studies 901, 934 (lay witness), 939 (expert witness) (1964). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 803. Opinion based on improper matter

The court may, and upon objection shall, exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion. In such case, the witness may, if there remains a proper basis for his opinion, then state his opinion after excluding from consideration the matter determined to be improper.

LAW REVISION COMMISSION COMMENT

Under Section 803, as under existing law, an opinion may be held inadmissible or may be stricken if it is based wholly or in substantial part upon improper considerations. Whether or not the opinion should be held inadmissible or stricken will depend in a particular case on the extent to which the improper considerations have influenced the opinion. "The question is addressed to the discretion of the trial court." People v. Lipari, 213 Cal.App.2d 485, 493, 28 Cal.Rptr. 808, 813–814 (1963). See discussion in City of Gilroy v. Filice, 221 Cal.App.2d 259, 271–272, 34 Cal.Rptr. 368, 375–376 (1963), and cases cited therein. If a witness' opinion is stricken because of reliance upon improper considerations, the second sentence of Section 803 assures the witness the opportunity to express his opinion after excluding from his consideration the matter determined to be improper. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 804. Opinion based on opinion or statement of another

(a) If a witness testifying as an expert testifies that his opinion is based in whole or in part upon the opinion or statement of another person, such other person may be called and examined by any adverse party as if under cross-examination concerning the opinion or statement.

(b) This section is not applicable if the person upon whose opinion or statement the expert witness has relied is (1) a party, (2) a person identified with a party within the meaning of subdivision (d) of Section 776, or (3) a witness who has testified in the action concerning the subject matter of the opinion or statement upon which the expert witness has relied.

(c) Nothing in this section makes admissible an expert opinion that is inadmissible because it is based in whole or in part on the opinion or statement of another person.

(d) An expert opinion otherwise admissible is not made inadmissible by this section because it is based on the opinion or statement of a person who is unavailable for examination pursuant to this section.

LAW REVISION COMMISSION COMMENT

Section 804 is designed to provide protection to a party who is confronted with an expert witness who relies on the opinion or statement of some other person. (See the Comment to Section 801 for examples of opinions that may be based on the statements and opinions of others.) In such a situation, a party may find that cross-examination of the witness will not reveal the weakness in his opinion, for the crucial parts are based on the observations or opinions of someone else. Under existing law, if that other person is called as a witness, he is the witness of the party calling him and, therefore, that party may not subject him to cross-examination.

The existing law operates unfairly, for it unnecessarily restricts meaningful cross-examination. Hence, Section 804 permits a party to extend his cross-examination into the underlying bases of the opinion testimony introduced against him by calling the authors of opinions and statements relied on by adverse witnesses and examining them as if under cross-examination concerning the subject matter of their opinions and statements. See the Comment to Evidence Code § 1203. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 805. Opinion on ultimate issue

Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.

LAW REVISION COMMISSION COMMENT

Although several older cases indicated that an opinion could not be received on an ultimate issue, more recent cases have repudiated this rule. Hence, this section is declarative of existing law. People v. Wilson, 25 Cal.2d 341, 349–350, 153 P.2d 720, 725 (1944); Wells Truckways, Ltd. v. Cebrian, 122 Cal.App.2d 666, 265 P.2d 557 (1954); People v. King, 104 Cal.App.2d 298, 231 P.2d 156 (1951). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

ARTICLE 2. EVIDENCE OF MARKET VALUE OF PROPERTY

§ 810. Application of article

(a) Except where another rule is provided by statute, this article provides special rules of evidence applicable to any action in which the value of property is to be ascertained.

(b) This article does not govern ad valorem property tax assessment or equalization proceedings.

LEGISLATIVE COMMITTEE COMMENT—SENATE 1978 AMENDMENT

1995 Interim Update Section 810 defines the scope of this article. This article expressly applies only to the determination of the value of property in eminent domain and inverse condemnation proceedings. However, nothing in this article precludes a court from using the rules prescribed in this article in valuation proceedings to which the article is not made applicable, where the court determines that the rules prescribed are appropriate. See In re Marriage of Folb, 53 Cal.App.3d 862, 868–71, 126 Cal.Rptr. 306, 310–12 (1975).

1980 Amendment

Section 810 is amended to remove the limitation on application of this article to eminent domain and inverse condemnation proceedings. This article does not attempt to define market value and does not apply the eminent domain definition of market value to other cases; it it limited to procedural rules for determining market value, however defined.

This article applies to any action or proceeding in which the value of real property, or real and personal property taken as a unit, is to be determined. See Section 811 and Comment thereto ("value of property" defined). See also Sections 105 and 120 ("action" includes action or proceeding). These cases include, but are not limited to, the following:

(1) Eminent domain proceedings. See, e.g., Code Civ.Proc. § 1263.310 (measure of compensation is fair market value of property taken).

(2) Inheritance taxation. See, e.g., Rev. & Tax. Code §§ 13311, 13951 (property taxed on basis of market value).

(3) Breach of contract of sale. See, e.g., Civil Code §§ 3306, 3307 (damages for breach of real property contract based on value of property).

(4) Mortgage deficiency judgments. See, e.g., Code Civ.Proc. §§ 580a, 726 (judgments calculated on fair market value or fair value of property).

(5) Gift taxation. See, e.g., Rev. & Tax. Code § 15203 (gift tax computed on market value of property).

(6) Fraud in the purchase, sale, or exchange of property. See, e.g., Civil Code § 3343 (measure of damages includes damages based on actual value of property).

(7) Other cases in which no statutory standard of market value or its equivalent is prescribed but in which the court is required to make a determination of market value, such as marriage dissolution. See, e.g., In re Marriage of Folb, 53 Cal.App.3d 862, 126 Cal.Rptr. 306 (1975).

This article applies only where market value is to be determined, whether for computing damages and benefits or for any other purpose. In cases involving some other standard of value, the rules provided in this article are not made applicable by statute.

The introductory proviso of subdivision (a) ensures that, where a particular provision requires a special rule relating to value, the special rule prevails over this article. By virtue of subdivision (b), property tax assessment and equalization proceedings, whether judicial or administrative, are not subject to this article. They are governed by a well-developed and adequate set of rules that are comparable to the Evidence Code rules. See, e.g., Rev. & Tax. Code §§ 402.1, 402.5 (valuation and assessment rules); Rev. & Tax. Code §§ 1606, 1609, 1609.4, 1636–1641 (equalization proceedings); Cal.Admin. Code, Tit. 18 (public revenues regulations).

Nothing in this section is intended to require a hearing to ascertain the value of property where a hearing is not required by statute. See, e.g., Rev. & Tax. Code §§ 14501–14505 (Inheritance Tax Referee permitted but not required to conduct hearing to ascertain value of property).

§ 811. Value of property

As used in this article, "value of property" means market value of any of the following:

(a) Real property or any interest therein.

(b) Real property or any interest therein and tangible personal property valued as a unit.

LEGISLATIVE COMMITTEE COMMENT—SENATE 1978 AMENDMENT

1995 Interim Update Section 811 is amended to make clear the limited application of this article. This article applies only where market value of real property, an interest in real property (e.g., a leasehold), or tangible personal property is to be determined, whether for computing damages and benefits or otherwise. This article does not apply to the valuation of intangible personal property that is not an interest in real property, such as goodwill of a business; valuation of such property is governed by the rules of evidence otherwise applicable. However, nothing in this article precludes a court from using the rules prescribed in this article in valuation proceedings to which the article is not made applicable, where the court determines that the rules prescribed are appropriate. See Comment to Section 810.

1980 Amendment

Subdivision (b) of Section 811 is amended to include personal property only when valued together with real property. The effect of this amendment is to limit the scope of the evidence of market value provisions to actions involving real property or real and personal property combined. See Section 810 (article provides rules applicable to action in which "value of property" to be ascertained). Actions involving personal property alone are governed by general law, including the general rules of evidence prescribed in this code, although where appropriate the court may look to the special rules prescribed in this article.

LAW REVISION COMMISSION COMMENT 1975 AMENDMENT

Section 811 is amended to conform to the numbering of the Eminent Domain Law.

Section 811 makes clear that this article as applied to eminent domain proceedings governs only evidence relating to the determination of property value and damages and benefits to the remainder. This article does not govern evidence relating to the determination of loss of goodwill (Code Civ.Proc. § 1263.510).

The evidence admissible to prove loss of goodwill is governed by the general provisions of the Evidence Code. Hence, nothing in this article should be deemed a limitation on the admissibility of evidence to prove loss of goodwill if such evidence is otherwise admissible. [12 Cal.L.Rev.Comm. Reports 1601 (1975)]

LEGISLATIVE COMMITTEE COMMENT—SENATE 1978 AMENDMENT

Section 811 is amended to make clear the limited application of this article. This article applies only where market value of real property, an interest in real property (e.g., a leasehold), or tangible personal property is to be determined, whether for computing damages and benefits or otherwise. This article does not apply to the valuation of intangible personal property that is not an interest in real property, such as goodwill of a business; valuation of such property is governed by the rules of evidence otherwise applicable. However, nothing in this article precludes a court from using the rules prescribed in this article in valuation proceedings to which the article is not made applicable, where the court determines that the rules prescribed are appropriate. See Comment to Section 810.

1980 Amendment

Subdivision (b) of Section 811 is amended to include personal property only when valued together with real property. The effect of this amendment is to limit the scope of the evidence of market value provisions to actions involving real property or real and personal property combined. See Section 810 (article provides rules applicable to action in which "value of property" to be ascertained). Actions involving personal property alone are governed by general law, including the general rules of evidence prescribed in this code, although where appropriate the court may look to the special rules prescribed in this article.

§ 812. Market value; interpretation of meaning

This article is not intended to alter or change the existing substantive law, whether statutory or decisional, interpreting the meaning of "market value," whether denominated "fair market value" or otherwise.

LAW REVISION COMMISSION COMMENT 1975 AMENDMENT

Section 812 is amended to conform to the numbering and terminology of the Eminent Domain Law. [12 Cal.L.Rev.Comm. Reports 1601 (1975)].

LEGISLATIVE COMMITTEE COMMENT—SENATE 1978 AMENDMENT

Section 812 is amended to take into account the limited application of this article. See Section 811 and Comment thereto.

§ 813. Value of property; authorized opinions; view of property; admissible evidence

(a) The value of property may be shown only by the opinions of any of the following:

(1) Witnesses qualified to express such opinions.

(2) The owner or the spouse of the owner of the property or property interest being valued.

(3) An officer, regular employee, or partner designated by a corporation, partnership, or unincorporated association that is the owner of the property or property interest being valued, if the designee is knowledgeable as to the value of the property or property interest.

(b) Nothing in this section prohibits a view of the property being valued or the admission of any other admissible evidence (including but not limited to evidence as to the nature and condition of the property and, in an eminent domain proceeding, the character of the improvement proposed to be constructed by the plaintiff) for the limited purpose of enabling the court, jury, or referee to understand and weigh the testimony given under subdivision (a); and such evidence, except evidence of the character of the improvement proposed to be constructed by the plaintiff in an eminent domain proceeding, is subject to impeachment and rebuttal.

(c) For the purposes of subdivision (a), "owner of the property or property interest being valued" includes, but is not limited to, the following persons:

(1) A person entitled to possession of the property.

(2) Either party in an action or proceeding to determine the ownership of the property between the parties if the court determines that it would not be in the interest of efficient administration of justice to determine the issue of ownership prior to the admission of the opinion of the party.

LEGISLATIVE COMMITTEE COMMENT—SENATE 1980 AMENDMENT

1995 Interim Update Paragraph (2) of Section 813(a) is amended by make clear that either spouse may testify as to the value of community property since both spouses are the owners. In addition, paragraph (2) authorizes either spouse to testify as to the value of the separate property of the other spouse as well as to his or her own separate property. This authority may be useful in cases under the Family Law Act where the character of the property is in dispute as well as in other cases requiring valuation where the nonowning spouse may be a more competent valuation witness than the owning spouse.

Subdivision (c) of Section 813 is amended to make clear that a person claiming to be an owner may testify as an owner in litigation over title. Such litigation may arise, for example, between a buyer and seller concerning title to and value of real property under a contract of sale, or between a landlord and tenant concerning characterization and value of property as trade fixtures.

LAW REVISION COMMISSION COMMENT 1978 AMENDMENT

Paragraph (3) is added to Section 813(a) to make clear that, where a corporation, partnership, or unincorporated association owns property being valued, a designated officer, regular employee, or partner who is knowledgeable as to the value of the property may testify to an opinion of its value as an owner, notwithstanding any contrary implications in City of Pleasant Hill v. First Baptist Church, 1 Cal.App.3d 384, 82 Cal.Rptr. 1 (1969). The designee may be knowledgeable as to the value of the property as a result of being instrumental in its acquisition or management or as a result of being knowledgeable as to its character and use; the designee need not qualify as a general valuation expert. Compare Section 720 (qualification as an expert witness). Nothing in Section 813 affects the authority of the court to limit the number of expert witnesses to be called by any party (see Section 723) or to limit cumulative evidence (see Section 352).

The phrase "value of property," as used in this section, is defined in Section 811. [14 Cal.L.Rev.Comm. Reports 105 (1978)]

LEGISLATIVE COMMITTEE COMMENT—SENATE 1980 AMENDMENT

Paragraph (2) of Section 813(a) is amended by make clear that either spouse may testify as to the value of community property since both spouses are the owners. In addition, paragraph (2) authorizes either spouse to testify as to the value of the separate property of the other spouse as well as to his or her own separate property. This authority may be useful in cases under the Family Law Act where the character of the property is in dispute as well as in other cases requiring valuation where the nonowning spouse may be a more competent valuation witness than the owning spouse.

Subdivision (c) of Section 813 is amended to make clear that a person claiming to be an owner may testify as an owner in litigation over title. Such litigation may arise, for example, between a buyer and seller concerning title to and value of real property under a contract of sale, or between a landlord and tenant concerning characterization and value of property as trade fixtures.

§ 814. Matter upon which opinion must be based

The opinion of a witness as to the value of property is limited to such an opinion as is based on matter perceived by or personally known to the witness or made known to the witness at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion as to the value of property, including but not limited to the matters listed in Sections 815 to 821, inclusive, unless a witness is precluded by law from using such matter as a basis for an opinion.

§ 814.5. Repealed by Stats.1971, c. 1574, p. 3154, § 1.4, operative July 1, 1972

§ 815. Sales of subject property

When relevant to the determination of the value of property, a witness may take into account as a basis for an opinion the price and other terms and circumstances of any sale or contract to sell and purchase which included the property or property interest being valued or any part thereof if the sale or contract was freely made in good faith within a reasonable time before or after the date of valuation, except that in an eminent domain proceeding where the sale or contract to sell and purchase includes only the property or property interest being taken or a part thereof, such sale or contract to sell and purchase may not be taken into account if it occurs after the filing of the lis pendens.

§ 816. Comparable sales

When relevant to the determination of the value of property, a witness may take into account as a basis for his opinion the price and other terms and circumstances of any sale or contract to sell and purchase comparable property if the sale or contract was freely made in good faith within a reasonable time before or after the date of valuation. In order to be considered comparable, the sale or contract must have been made sufficiently near in time to the date of valuation, and the property sold must be located sufficiently near the property being valued, and must be sufficiently alike in respect to character, size, situation, usability, and improvements, to make it clear that the property sold and the property being valued are comparable in value and that the price realized for the property sold may fairly be considered as shedding light on the value of the property being valued.

§ 817. Leases of subject property

(a) Subject to subdivision (b), when relevant to the determination of the value of property, a witness may take into account as a basis for an opinion the rent reserved and other terms and circumstances of any lease which included the property or property interest being valued or any part thereof which was in effect within a reasonable time before or after the date of valuation, except that in an eminent domain proceeding where the lease includes only the property or property interest being taken or a part thereof, such lease may not be taken into account in the determination of the value of property if it is entered into after the filing of the lis pendens.

(b) A witness may take into account a lease providing for a rental fixed by a percentage or other measurable portion of gross sales or gross income from a business conducted on the leased property only for the purpose of arriving at an opinion as to the reasonable net rental value attributable to the property or property interest being valued as provided in Section 819 or determining the value of a leasehold interest.

LAW REVISION COMMISSION COMMENT 1978 AMENDMENT

Subdivision (a) of Section 817 is amended to add the limitation that a lease of the subject property is not a proper basis for an opinion of value of the property after the filing of the lis pendens in an eminent domain proceeding. This is comparable to a provision of Section 815 (sale of subject property). Nothing in subdivision (a) should be construed to limit the use of leases created after filing of the lis pendens to show damages to the property, such as those authorized by Klopping v. City of Whittier, 8 Cal.3d 39, 500 P.2d 1345, 104 Cal.Rptr. 1 (1972).

Subdivision (b) limits the extent to which a witness may take into account a lease based on gross sales or gross income of a business conducted on the property. This limitation applies only to valuation of the real property or an interest therein, or of tangible personal property, and does not apply to the determination of loss of goodwill. See Section 811 and Comment thereto; Code Civ.Proc. § 1263.510 and Comment thereto.

The phrase "value of property," as used in this section, is defined in Section 811. [14 Cal.L.Rev.Comm. Reports 105 (1978)]

§ 818. Comparable leases

For the purpose of determining the capitalized value of the reasonable net rental value attributable to the property or property interest being valued as provided in Section 819 or determining the value of a leasehold interest, a witness may take into account as a basis for his opinion the rent reserved and other terms and circumstances of any lease of comparable property if the lease was freely made in good faith within a reasonable time before or after the date of valuation.

§ 819. Capitalization of income

When relevant to the determination of the value of property, a witness may take into account as a basis for his opinion the capitalized value of the reasonable net rental value attributable to the land and existing improvements thereon (as distinguished from the capitalized value of the income or profits attributable to the business conducted thereon).

§ 820. Reproduction cost

When relevant to the determination of the value of property, a witness may take into account as a basis for his opinion the value of the property or property interest being valued as indicated by the value of the land together with the cost of replacing or reproducing the existing improvements thereon, if the improvements enhance the value of the property or property interest for its highest and best use, less whatever depreciation or obsolescence the improvements have suffered.

§ 821. Conditions in general vicinity of subject property

When relevant to the determination of the value of property, a witness may take into account as a basis for his opinion the nature of the improvements on properties in the general vicinity of the property or property interest being valued and the character of the existing uses being made of such properties.

§ 822. Matter upon which opinion may not be based

(a) In an eminent domain or inverse condemnation proceeding, notwithstanding the provisions of Sections 814 to 821, inclusive, the following matter is inadmissible as evidence and shall not be taken into account as a basis for an opinion as to the value of property:

(1) The price or other terms and circumstances of an acquisition of property or a property interest if the acquisition was for a public use for which the property could have been taken by eminent domain.

The price or other terms and circumstances shall not be excluded pursuant to this paragraph if the proceeding relates to the valuation of all or part of a water system as defined in section 240 of the Public Utilities Code.

(2) The price at which an offer or option to purchase or lease the property or property interest being valued or any other property was made, or the price at which such property or interest was optioned, offered, or listed for sale or lease, except that an option, offer, or listing may be introduced by a party as an admission of another party to the proceeding; but nothing in this subdivision permits an admission to be used as direct evidence upon any matter that may be shown only by opinion evidence under Section 813.

(3) The value of any property or property interest as assessed for taxation purposes or the amount of taxes which may be due on the property, but nothing in this subdivision prohibits the consideration of actual or estimated taxes for the purpose of determining the reasonable net rental value attributable to the property or property interest being valued.

(4) An opinion as to the value of any property or property interest other than that being valued.

(5) The influence upon the value of the property or property interest being valued of any noncompensable items of value, damage, or injury.

(6) The capitalized value of the income or rental from any property or property interest other than that being valued.

(b) In an action other than an eminent domain or inverse condemnation proceeding, the matters listed in subdivision (a) are not admissible as evidence, and may not be taken into account as a basis for an opinion as to the value of property, except to the extent permitted under the rules of law otherwise applicable.

LAW REVISION COMMISSION COMMENT

2000 Amendment

Subdivision (a)(1) of Section 822 is amended to delete the special exception relating to property appropriated to public use, in reliance on general evidentiary principles. See, e.g., Section 823 ("Notwithstanding any other provision of this article, the value of property for which there is no relevant, comparable market may be determined by any method of valuation that is just and equitable."); see also Code Civ. Proc. § 1263.320(b) (fair market value). Thus, evidence of an acquisition that is otherwise inadmissible under subdivision (a)(1) may, in an appropriate case, be admissible under Section 823 if a private market is lacking, e.g., the acquisition involves a special purpose property such as a school, church, cemetery, park, utility corridor, or similar property.

The new exception added to subdivision (a)(1) is intended to apply in an eminent domain or inverse condemnation proceeding that relates to a public agency's acquisition or taking of all or any part of a water system owned by a water company.

Subdivision (c) is deleted as obsolete.

LEGISLATIVE COMMITTEE COMMENT—SENATE 1980 AMENDMENT

1995 Interim Update Section 822 is amended to limit the application of subdivision (a) to eminent domain and inverse condemnation cases despite the general expansion of this article to cover real property valuation cases generally. See Sections 810 and 811 and Comments thereto. The introductory portion of subdivision (a) is also amended to make clear that subdivision (a) regulates only the bases for an opinion of value admissible in evidence; it does not purport to prescribe rules or regulations governing the practice of the appraisal profession outside of expert testimony in a case.

Subdivision (b) is added to make clear that the exclusion of the matters listed in subdivision (a) in eminent domain and inverse condemnation cases does not imply that those matters are admissible in other cases. The rules governing admissibility in other cases of matters listed in subdivision (a) are found in Section 814 and in the general Evidence Code rules relating to relevance, prejudice, and the like.

LAW REVISION COMMISSION COMMENT 1978 AMENDMENT

Subdivision (c) of Section 822 is amended to incorporate a provision formerly found in Revenue and Taxation Code Section 4986(b). Unlike the former provision, subdivision (c) does not provide for a mistrial for mention of the amount of taxes which may be due. Whether such mention is grounds for a mistrial is governed by the general principles of court discretion to declare a mistrial when evidence has been presented which is inadmissible, highly prejudicial, and cannot be corrected by an admonition to the jury.

Subdivision (d) does not prohibit a witness from testifying to adjustments made in sales of comparable property used as a basis for an opinion. Merced Irrigation Dist. v. Woolstenhulme, 4 Cal.3d 478, 501–03, 483 P.2d 1, 16–17, 93 Cal.Rptr. 833, 848–49 (1971).

Section 822 does not prohibit cross-examination of a witness on any matter precluded from admission as evidence if such cross-examination is for the limited purpose of determining whether a witness based an opinion in whole or in part on matter that is not a proper basis for an opinion; such cross-examination may not, however, serve as a means of placing improper matters before the trier of fact. See Evid. Code §§ 721, 802, 803.

The phrase "value of property," as used in this section, is defined in Section 811. [14 Cal.L.Rev.Comm. Reports 105 (1978)]

LEGISLATIVE COMMITTEE COMMENT—SENATE 1980 AMENDMENT

Section 822 is amended to limit the application of subdivision (a) to eminent domain and inverse condemnation cases despite the general expansion of this article to cover real property valuation cases generally. See Sections 810 and 811 and Comments thereto. The introductory portion of subdivision (a) is also amended to make clear that subdivision (a) regulates only the bases for an opinion of value admissible in evidence; it does not purport to prescribe rules or regulations governing the practice of the appraisal profession outside of expert testimony in a case.

Subdivision (b) is added to make clear that the exclusion of the matters listed in subdivision (a) in eminent domain and inverse condemnation cases does not imply that those matters are admissible in other cases. The rules governing admissibility in other cases of matters listed in subdivision (a) are found in Section 814 and in the general Evidence Code rules relating to relevance, prejudice, and the like.

§ 823. Property with no relevant, comparable market

Notwithstanding any other provision of this article, the value of property for which there is no relevant, comparable market may be determined by any method of valuation that is just and equitable.

LEGISLATIVE COMMITTEE COMMENT—SENATE 1980 ADDITION

1995 Interim Update Section 823 is drawn from Code of Civil Procedure Section 1263.320(b) (fair market value in eminent domain proceeding of property for which there is no relevant market). Section 823 is included because there may be no relevant market for some types of special purpose properties such as schools, churches, cemeteries, parks, utilities, and similar properties. See Code Civ.Proc. § 1263.320(b) and Comment thereto.

§ 824. Nonprofit, special use property

(a) Notwithstanding any other provision of this article, a just and equitable method of determining the value of nonprofit, special use property, as defined by Section 1235.155 of the Code of Civil Procedure, for which there is no relevant, comparable market, is the cost of purchasing land and the reasonable cost of making it suitable for the conduct of the same nonprofit, special use, together with the cost of constructing similar improvements. The method for determining compensation for improvements shall be as set forth in subdivision (b).

(b) Notwithstanding any other provision of this article, a witness providing opinion testimony on the value of nonprofit, special use property, as defined by Section 1235.155 of the Code of Civil Procedure, for which there is no relevant, comparable market, shall base his or her opinion on the value of reproducing the improvements without taking into consideration any depreciation or obsolescence of the improvements.

(c) This section does not apply to actions or proceedings commenced by a public entity or public utility to acquire real property or any interest in real property for the use of water, sewer, electricity, telephone, natural gas, or flood control facilities or rights-of-way where those acquisitions neither require removal or destruction of existing improvements, nor render the property unfit for the owner's present or proposed use.

ARTICLE 3. OPINION TESTIMONY ON PARTICULAR SUBJECTS

§ 870. Opinion as to sanity

A witness may state his opinion as to the sanity of a person when:

(a) The witness is an intimate acquaintance of the person whose sanity is in question;

(b) The witness was a subscribing witness to a writing, the validity of which is in dispute, signed by the person whose sanity is in question and the opinion relates to the sanity of such person at the time the writing was signed; or

(c) The witness is qualified under Section 800 or 801 to testify in the form of an opinion.

LAW REVISION COMMISSION COMMENT

Subdivisions (a) and (b) restate the substance of and supersede subdivision 10 of Section 1870 of the Code of Civil Procedure. Subdivision (c) merely makes it clear that a witness who meets the requirements of Section 800 or Section 801 is qualified to testify in the form of an opinion as to the sanity of a person. Section 870 does not disturb the present rule that permits a witness to testify to a person's rational or irrational appearance or conduct, even though the witness is not qualified under Section 870 to express an opinion on the person's sanity. See Pfingst v. Goetting, 96 Cal.App.2d 293, 215 P.2d 93 (1950). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

CHAPTER 2. BLOOD TESTS TO DETERMINE PATERNITY [REPEALED]

§§ 890 to 895. Repealed by Stats.1992, c. 162 (A.B.2650), § 9, operative Jan. 1, 1994

§ 895.5. Repealed by Stats.1993, c. 219 (A.B.1500), § 77

§§ 896, 897. Repealed by Stats.1992, c. 162 (A.B.2650), § 9, operative Jan. 1, 1994

DIVISION 8. PRIVILEGES

CHAPTER 1. DEFINITIONS

§ 900. Application of definitions

Unless the provision or context otherwise requires, the definitions in this chapter govern the construction of this division. They do not govern the construction of any other division.

LAW REVISION COMMISSION COMMENT

Section 900 makes it clear that the definitions in Sections 901 through 905 apply only to Division 8 (Privileges) and that these definitions are not applicable where the context or language of a particular section in Division 8 requires that a word or phrase used in that section be given a different meaning. The definitions contained in Division 2 (commencing with Section 100) apply to the entire code, including Division 8. Definitions applicable only to a particular article are found in that article. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 901. Proceeding

"Proceeding" means any action, hearing, investigation, inquest, or inquiry (whether conducted by a court, administrative agency, hearing officer, arbitrator, legislative body, or any other person authorized by law) in which, pursuant to law, testimony can be compelled to be given.

LAW REVISION COMMISSION COMMENT

"Proceeding" is defined to mean all proceedings of whatever kind in which testimony can be compelled by law be to given. It includes civil and criminal actions and proceedings, administrative proceedings, legislative hearings, grand jury proceedings, coroners' inquests, arbitration proceedings, and any other kind of proceeding in which a person can be compelled by law to appear and give evidence. This broad definition is necessary in order that Division is may be made applicable to all situations where a person can be compelled to testify. The reasons for giving this broad scope to Division 8 are stated in the Comment to Section 910. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 902. Civil proceeding

"Civil proceeding" means any proceeding except a criminal proceeding.

LAW REVISION COMMISSION COMMENT

"Civil proceeding" includes not only a civil action or proceeding, but also any nonjudicial proceeding in which, pursuant to law, testimony can be compelled to be given. See Evidence Code §§ 901 and 903. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 903. Criminal proceeding

"Criminal proceeding" means:

(a) A criminal action; and

(b) A proceeding pursuant to Article 3 (commencing with Section 3060) of Chapter 7 of Division 4 of Title 1 of the Government Code to determine whether a public officer should be removed from office for willful or corrupt misconduct in office.

LAW REVISION COMMISSION COMMENT

This division treats a proceeding by accusation for the removal of a public officer under Government Code Sections 3060–3073 the same as a criminal action. Proceedings by accusation and criminal actions are so nearly alike in their basic nature that, so far as privileges are concerned, this similar treatment is justified. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 904. Blank

§ 905. Presiding officer

"Presiding officer" means the person authorized to rule on a claim of privilege in the proceeding in which the claim is made.

LAW REVISION COMMISSION COMMENT

"Presiding officer" is defined so that reference may be made in Division 8 to the person who makes rulings on questions of privilege in nonjudicial proceedings. The term includes arbitrators, hearing officers, referees, and any other person who is authorized to make rulings on claims of privilege. It, of course, includes the judge or other person presiding in a judicial proceeding. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

CHAPTER 2. APPLICABILITY OF DIVISION

§ 910. Applicability of division

Except as otherwise provided by statute, the provisions of this division apply in all proceedings. The provisions of any statute making rules of evidence inapplicable in particular proceedings, or limiting the applicability of rules of evidence in particular proceedings, do not make this division inapplicable to such proceedings.

LAW REVISION COMMISSION COMMENT

Most rules of evidence are designed for use in courts. Generally, their purpose is to keep unreliable or prejudicial evidence from being presented to the trier of fact. Privileges are granted, however, for reasons of policy unrelated to the reliability of the information involved. A privilege is granted because it is considered more important to keep certain information confidential than it is to require disclosure of all the information relevant to the issues in a pending proceeding. Thus, for example, to protect the attorney-client relationship, it is necessary to prevent disclosure of confidential communications made in the course of that relationship.

If confidentiality is to be protected effectively by a privilege, the privilege must be recognized in proceedings other than judicial proceedings. The protection afforded by a privilege would be insufficient if a court were the only place where the privilege could be invoked. Every officer with power to issue subpoenas for investigative purposes, every administrative agency, every local governing board, and many more persons could pry into the protected information if the privilege rules were applicable only in judicial proceedings.

Therefore, the policy underlying the privilege rules requires their recognition in all proceedings of any nature in which testimony can be compelled by law to be given. Section 910 makes the privilege rules applicable to all such proceedings. In this respect, it follows the precedent set in New Jersey when privilege rules, based in part on the Uniform Rules of Evidence, were enacted. See N.J.Laws 1960, Ch. 52, p. 452 (N.J.Rev.Stat. §§ 2A:84A–1 to 2A:84A–49).

Statutes that relax the rules of evidence in particular proceedings do not have the effect of making privileges inapplicable in such proceedings. For example, Labor Code Section 5708, which provides that the officer conducting an Industrial Accident Commission proceeding "shall not be bound by the common law or statutory rules of evidence," does not make privileges inapplicable in such proceedings. Thus, the lawyer-client privilege must be recognized in an Industrial Accident Commission proceeding. On the other hand, Division 8 and other statutes provide exceptions to particular privileges for particular types of proceedings. E.g., Evidence Code § 998 (physician-patient privilege inapplicable in criminal proceeding); Labor Code §§ 4055, 6407, 6408 (testimony by physician and certain reports of physicians admissible as evidence in Industrial Accident Commission proceedings).

Whether Section 910 is declarative of existing law is uncertain. No California case has squarely decided whether the privileges which are recognized in judicial proceedings are also applicable in nonjudicial proceedings. By statute, however, they have been made applicable in all adjudicatory proceedings conducted under the terms of the Administrative Procedure Act. Govt. Code § 11513. The reported decisions indicate that, as a general rule, privileges are assumed to be applicable in nonjudicial proceedings. See, e.g., McKnew v. Superior Court, 23 Cal.2d 58, 142 P.2d 1 (1943); Ex parte McDonough, 170 Cal. 230, 149 P. 566 (1915); Board of Educ. v. Wilkinson, 125 Cal.App.2d 100, 270 P.2d 82 (1954); In re Bruns, 15 Cal.App.2d 1, 58 P.2d 1318 (1936). Thus, Section 910 appears to be declarative of existing practice, but there is no authority as to whether it is declarative of existing law. Its enactment will remove the existing uncertainty concerning the right to claim a privilege in a nonjudicial proceeding. See generally Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article V. Privileges), 6 Cal.Law Revision Comm'n, Rep., Rec. & Studies 201, 309–327 (1964). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

CHAPTER 3. GENERAL PROVISIONS RELATING TO PRIVILEGES

§ 911. Refusal to be or have another as witness, or disclose or produce any matter

Except as otherwise provided by statute:

(a) No person has a privilege to refuse to be a witness.

(b) No person has a privilege to refuse to disclose any matter or to refuse to produce any writing, object, or other thing.

(c) No person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any writing, object, or other thing.

LAW REVISION COMMISSION COMMENT

This section codifies the existing law that privileges are not recognized in the absence of statute. See Chronicle Pub. Co. v. Superior Court, 54 Cal.2d 548, 565, 7 Cal.Rptr. 109, 117, 354 P.2d 637, 645 (1960); Tatkin v. Superior Court, 160 Cal.App.2d 745, 753, 326 P.2d 201, 205–206 (1958); Whitlow v. Superior Court, 87 Cal.App.2d 175, 196 P.2d 590 (1948). See also 8 Wigmore, Evidence § 2286 (McNaughton rev. 1961); Witkin, California Evidence § 396 at 446 (1958). This is one of the few instances where the Evidence Code precludes the courts from elaborating upon the statutory scheme. Even with respect to privileges, however, the courts to a limited extent are permitted to develop the details of declared principles. See, e.g., Section 1060 (trade secret). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 912. Waiver of privilege

(a) Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section 954 (lawyer-client privilege), 980 (privilege for confidential marital communications), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), 1033 (privilege of penitent), 1034 (privilege of clergyman), or 1035.8 (sexual assault counselor-victim privilege), or 1037.5 (domestic violence counselor-victim privilege) is waived with respect to a communication protected by such privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to such disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege.

(b) Where two or more persons are joint holders of a privilege provided by Section 954 (lawyer-client privilege), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), or 1035.8 (sexual assault counselor-victim privilege), or 1037.5 (domestic violence counselor-victim privilege), a waiver of the right of a particular joint holder of the privilege to claim the privilege does not affect the right of another joint holder to claim the privilege. In the case of the privilege provided by Section 980 (privilege for confidential marital communications), a waiver of the right of one spouse to claim the privilege does not affect the right of the other spouse to claim the privilege.

(c) A disclosure that is itself privileged is not a waiver of any privilege.

(d) A disclosure in confidence of a communication that is protected by a privilege provided by Section 954 (lawyer-client privilege), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), or 1035.8 (sexual assault counselor-victim privilege), or 1037.5 (domestic violence counselor-victim privilege), when such disclosure is reasonably necessary for the accomplishment of the purpose for which the lawyer, physician, psychotherapist, or sexual assault counselor was consulted, is not a waiver of the privilege.

COMMENT—SENATE COMMITTEE ON JUDICIARY

This section covers in some detail the matter of waiver of those privileges that protect confidential communications.

Subdivision (a). Subdivision (a) states the general rule with respect to the manner in which a privilege is waived. Failure to claim the privilege where the holder of the privilege has the legal standing and the opportunity to claim the privilege constitutes a waiver. This seems to be the existing law. See City & County of San Francisco v. Superior Court, 37 Cal.2d 227, 233, 231 P.2d 26, 29 (1951); Lissak v. Crocker Estate Co., 119 Cal. 442, 51 P. 688 (1897). There is, however, at least one case that is out of harmony with this rule. People v. Kor, 129 Cal.App.2d 436, 277 P.2d 94 (1954) (defendant's failure to claim privilege to prevent a witness from testifying to a communication between the defendant and his attorney held not to waive the privilege to prevent the attorney from similarly testifying).

Subdivision (b). A waiver of the privilege by a joint holder of the privilege does not operate to waive the privilege for any of the other joint holders of the privilege. This codifies existing law. See People v. Kor, 129 Cal.App.2d 436, 277 P.2d 94 (1954); People v. Abair, 102 Cal.App.2d 765, 228 P.2d 336 (1951).

Subdivision (c). A privilege is not waived when a revelation of the privileged matter takes place in another privileged communication. Thus, for example, a person does not waive his lawyer-client privilege by telling his wife in confidence what it was that he told his attorney. Nor does a person waive the marital communication privilege by telling his attorney in confidence in the course of the attorney-client relationship what it was that he told his wife. And a person does not waive the lawyer-client privilege as to a communication by relating it to another attorney in the course of a separate relationship. A privileged communication should not cease to be privileged merely because it has been related in the course of another privileged communication. The theory underlying the concept of waiver is that the holder of the privilege has abandoned the secrecy to which he is entitled under the privilege. Where the revelation of the privileged matter takes place in another privileged communication, there has not been such an abandonment. Of course, this rule does not apply unless the revelation was within the scope of the relationship in which it was made; a client consulting his lawyer on a contract matter who blurts out that he told his doctor that he had a venereal disease has waived the privilege, even though he intended the revelation to be confidential, because the revelation was not necessary to the contract business at hand.

Subdivision (d). Subdivision (d) is designed to maintain the confidentiality of communications in certain situations where the communications are disclosed to others in the course of accomplishing the purpose for which the lawyer, physician, or psychotherapist was consulted. For example, where a confidential communication from a client is related by his attorney to a physician, appraiser, or other expert in order to obtain that person's assistance so that the attorney will better be able to advise his client, the disclosure is not a waiver of the privilege, even though the disclosure is made with the client's knowledge and consent. Nor would a physician's or psychotherapist's keeping of confidential records necessary to diagnose or treat a patient, such a confidential hospital records, be a waiver of the privilege, even though other authorized persons have access to the records. Similarly, the patient's presentation of a physician's prescription to a registered pharmacist would not constitute a waiver of the physician-patient privilege because such disclosure is reasonably necessary for the accomplishment of the purpose for which the physician is consulted. See also Evidence Code § 992. Communications such as these, when made in confidence, should not operate to destroy the privilege even when they are made with the consent of the client or patient. Here, again, the privilege holder has not evidenced any abandonment of secrecy. Hence, he should be entitled to maintain the confidential nature of his communications to his attorney or physician despite the necessary further disclosure.

Subdivision (d) may change California law. Green v. Superior Court, 220 Cal.App.2d 121, 33 Cal.Rptr. 604 (1963) (hearing denied), held that the physician-patient privilege did not provide protection against disclosure by a pharmacist of information concerning the nature of drugs dispensed upon prescription. See also Himmelfarb v. United States, 175 F.2d 924 (9th Cir.1949) (applying the California law of privileges and holding that a lawyer's revelation to an accountant of a client's communication to the lawyer waived the client's privilege if such revelation was authorized by the client).

§ 913. Comment on, and inferences from, exercise of privilege

(a) If in the instant proceeding or on a prior occasion a privilege is or was exercised not to testify with respect to any matter, or to refuse to disclose or to prevent another from disclosing any matter, neither the presiding officer nor counsel may comment thereon, no presumption shall arise because of the exercise of the privilege, and the trier of fact may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding.

(b) The court, at the request of a party who may be adversely affected because an unfavorable inference may be drawn by the jury because a privilege has been exercised, shall instruct the jury that no presumption arises because of the exercise of the privilege and that the jury may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Section 913 prohibits any comment on the exercise of a privilege and provides that the trier of fact may not draw any inference therefrom. Except as noted below, this probably states existing law. See People v. Wilkes, 44 Cal.2d 679, 284 P.2d 481 (1955). In addition, the court is required, upon request of a party who may be adversely affected, to instruct the jury that no presumption arises and that no inference is to be drawn from the exercise of a privilege. If comment could be made on the exercise of a privilege and adverse inferences drawn therefrom, a litigant would be under great pressure to forgo his claim of privilege and the protection sought to be afforded by the privilege would be largely negated. Moreover, the inferences which might be drawn would, in many instances, be quite unwarranted.

It should be noted that Section 913 deals only with comment upon, and the drawing of adverse inferences from, the exercise of a privilege. Section 913 does not purport to deal with the inferences that may be drawn from, or the comment that may be made upon, the evidence in the case.

Section 13 of Article I of the California Constitution provides that, in a criminal case, the failure of the defendant to explain or to deny by his testimony the evidence in the case against him may be commented upon. The courts, in reliance on this provision, have held that the failure of a party in either a civil or criminal case to explain or to deny the evidence against him may be considered in determining what inferences should be drawn from that evidence. People v. Adamson, 27 Cal.2d 478, 165 P.2d 3 (1946); Fross v. Wotton, 3 Cal.2d 384, 44 P.2d 350 (1935). However, the cases have emphasized that this right of comment and consideration does not extend in criminal cases to the drawing of inferences from the claim of privilege itself. Inferences may be drawn only from the evidence in the case and the defendant's failure to explain or deny such evidence. People v. Ashley, 42 Cal.2d 246, 267 P.2d 271 (1954); People v. Adamson, supra, 27 Cal.2d 478, 165 P.2d 3 (1946). Section 413 of the Evidence Code expresses the principle underlying this constitutional provision; nothing in Section 913 affects the application of Section 413 in either criminal or civil cases. See the Comment to Evidence Code § 413. Thus, for example, it is perfectly proper under the Evidence Code for counsel to point out that the evidence against the other party is uncontradicted.

Section 913 may modify existing California law as it applies in civil cases. In Nelson v. Southern Pacific Co., 8 Cal.2d 648, 67 P.2d 682 (1937), the Supreme Court held that evidence of a person's exercise of the privilege against self-incrimination in a prior proceeding may be shown for impeachment purposes if he testifies in a self-exculpatory manner in a subsequent proceeding. The Supreme Court within recent years has overruled statements in certain criminal cases declaring a similar rule. People v. Snyder, 50 Cal.2d 190, 197, 324 P.2d 1, 6 (1958) (overruling or disapproving several cases there cited). See also People v. Sharer, 61 Cal.2d 869, 40 Cal.Rptr. 851, 395 P.2d 899 (1964). Section 913 Will, in effect, overrule the holding in the Nelson case, for it declares that no inference may be drawn from an exercise of a privilege either on the issue of credibility or on any other issue, whether the privilege was exercised in the instant proceeding or on a prior occasion. The status of the rule in the Nelson case has been in doubt because of the recent holdings in criminal cases; Section 913 eliminates any remaining basis for applying a different rule in civil cases.

There is some language in Fross v. Wotton, 3 Cal.2d 384, 44 P.2d 350 (1935), that indicates that unfavorable inferences may be drawn in a civil case from a party's claim of the privilege against self-incrimination during the case itself. Such language was unnecessary to that decision; but, if it does indicate California law, that law is changed by Evidence Code Sections 413 and 913. Under these sections, it is clear that, in civil cases as well as criminal cases, inferences may be drawn only from the evidence in the case, not from the claim of privilege.

§ 914. Determination of claim of privilege; limitation on punishment for contempt

(a) The presiding officer shall determine a claim of privilege in any proceeding in the same manner as a court determines such a claim under Article 2 (commencing with Section 400) of Chapter 4 of Division 3.

(b) No person may be held in contempt for failure to disclose information claimed to be privileged unless he has failed to comply with an order of a court that he disclose such information. This subdivision does not apply to any governmental agency that has constitutional contempt power, nor does it apply to hearings and investigations of the Industrial Accident Commission, nor does it impliedly repeal Chapter 4 (commencing with Section 9400) of Part 1 of Division 2 of Title 2 of the Government Code. If no other statutory procedure is applicable, the procedure prescribed by Section 1991 of the Code of Civil Procedure shall be followed in seeking an order of a court that the person disclose the information claimed to be privileged.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Subdivision (a) makes the general provisions concerning preliminary determinations on admissibility of evidence (Sections 400–406) applicable when a presiding officer who is not a judge is called upon to determine whether or not a privilege exists. Subdivision (a) is necessary because Sections 400–406, by their terms, apply only to determinations by a court.

Subdivision (b) is needed to protect persons claiming privileges in nonjudicial proceedings. Because such proceedings are often conducted by persons untrained in law, it is desirable to have a judicial determination of whether a person is required to disclose information claimed to be privileged before he can be held in contempt for failing to disclose such information. What is contemplated is that, if a claim of privilege is made in a nonjudicial proceeding and is overruled, application must be made to a court for an order compelling the witness to answer. Only if such order is made and is disobeyed may a witness be held in contempt. That the determination of privilege in a judicial proceeding is a question for the judge is well-established California law. See, e.g., Holm v. Superior Court, 42 Cal.2d 500, 507, 267 P.2d 1025, 1029 (1954).

Subdivision (b), of course, does not apply to any body—such as the Public Utilities Commission—that has constitutional power to impose punishment for contempt. See, e.g., Cal.Const., Art. XII, § 22. Nor does this subdivision apply to witnesses before the State Legislature or its committees. See Govt.Code §§ 9400–9414. Likewise, subdivision (b) does not apply to hearings and investigations of the State Industrial Accident Commission.

§ 915. Disclosure of privileged information in ruling on claim of privilege

(a) Subject to subdivision (b), the presiding officer may not require disclosure of information claimed to be privileged under this division or attorney work product under subdivision (a) of Section 2018.030 of the Code of Civil Procedure in order to rule on the claim of privilege; provided, however, that in any hearing conducted pursuant to subdivision (c) of Section 1524 of the Penal Code in which a claim of privilege is made and the court determines that there is no other feasible means to rule on the validity of the claim other than to require disclosure, the court shall proceed in accordance with subdivision (b).

(b) When a court is ruling on a claim of privilege under Article 9 (commencing with Section 1040) of Chapter 4 (official information and identity of informer) or under Section 1060 (trade secret) or under subdivision (b) of Section 2018.030 of the Code of Civil Procedure (attorney work product) and is unable to do so without requiring disclosure of the information claimed to be privileged, the court may require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and any other persons as the person authorized to claim the privilege is willing to have present. If the judge determines that the information is privileged, neither the judge nor any other person may ever disclose, without the consent of a person authorized to permit disclosure, what was disclosed in the course of the proceedings in chambers.

LAW REVISION COMMISSION COMMENT

Section 915 is amended to reflect nonsubstantive reorganization of the rules governing civil discovery. [33 Cal.L.Rev.Comm. Reports 1015 (2004)].

Subdivision (a) state the general rule that revelation of the information asserted to be privileged may not be compelled in order to determine whether or not it is privileged. This codifies existing law. See Collette v. Sarrasin, 184 Cal. 283, 288–289, 193 Pac. 571, 573 (1920); People v. Glen Arms Estate, Inc., 230 Cal.App.2d 841, 846 note 1, 41 Cal.Rptr. 303, 305 note 1 (1964).

Subdivision (b) provides an exception to this general rule for information claimed to be privileged under Section 1040 (official information), Section 1041 (identity of an informer), or Section 1060 (trade secret). These privileges exist only if the interest in maintaining the secrecy of the information outweighs the interest in seeing that justice is done in the particular case. In at least some cases, it will be necessary for the judge to examine the information claimed to be privileged in order to balance these competing considerations intelligently. See People v. Glen Arms Estate, Inc., 230 Cal.App.2d 841, 846 note 1, 41 Cal.Rptr. 303, 305 note 1 (1964), and the cases cited in 8 Wigmore, Evidence § 2379 at 812 note 6 (McNaughton rev. 1961). And see United States v. Reynolds, 345 U.S. 1, 7–11 (1953), and pertinent discussion thereof in 8 Wigmore, Evidence § 2379 (McNaughton rev. 1961). Even in these cases, Section 915 undertakes to give adequate protection to the person claiming the privilege by providing that the information be disclosed in confidence to the judge and requiring that it be kept in confidence if it is found to be privileged.

The exception in subdivision (b) applies only when a court is ruling on the claim of privilege. Thus, in view of subdivision (a), disclosure of the information cannot be required, for example, in an administrative proceeding. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 916. Exclusion of privileged information where persons authorized to claim privilege are not present

(a) The presiding officer, on his own motion or on the motion of any party, shall exclude information that is subject to a claim of privilege under this division if:

(1) The person from whom the information is sought is not a person authorized to claim the privilege; and

(2) There is no party to the proceeding who is a person authorized to claim the privilege.

(b) The presiding officer may not exclude information under this section if:

(1) He is otherwise instructed by a person authorized to permit disclosure; or

(2) The proponent of the evidence establishes that there is no person authorized to claim the privilege in existence.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Section 916 is needed to protect the holder of a privilege when he is not available to protect his own interest. For example, a third party—perhaps the lawyer's secretary—may have been present when a confidential communication to a lawyer was made. In the absence of both the holder himself and the lawyer, the secretary could be compelled to testify concerning the communication if there were no provision such as Section 916 which requires the presiding officer to recognize the privilege.

Section 916 is designed to protect only privileged information that the holder of the privilege could protect by claiming the privilege at the hearing. It is not designed to protect unprivileged information. For example, if the statement offered in evidence is a declaration against the penal interest of the declarant, Section 916 does not authorize the presiding officer to exclude the evidence on the ground of the declarant's privilege against self-incrimination. If the declarant were present, his self-incrimination privilege would merely preclude his giving self-incriminating testimony at the hearing; it could not be asserted to prevent the disclosure of previously made self-incriminating statements.

The erroneous exclusion of information pursuant to Section 916 on the ground that it is privileged might amount to prejudicial error. On the other hand, the erroneous failure to exclude information pursuant to Section 916 could not amount to prejudicial error. See Evidence Code § 918.

Section 916 may be declarative of the existing law. No case in point has been found, but see the language in People v. Atkinson, 40 Cal. 284, 285 (1870) (attorney-client privilege).

§ 917. Presumption that certain communications are confidential; privileged character of electronic communications

(a) If a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the lawyer-client, physician-patient, psychotherapist-patient, clergy-penitent, husband-wife, sexual assault counselor-victim, or domestic violence counselor-victim relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential.

(b) A communication between persons in a relationship listed in subdivision (a) does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication.

(c) For purposes of this section, "electronic" has the same meaning provided in Section 1633.2 of the Civil Code.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

A number of sections provide privileges for communications made "in confidence" in the course of certain relationships. Although there appear to have been no cases involving the question in California, the general rule elsewhere is that a communication made in the course of such a relationship is presumed to be confidential and the party objecting to the claim of privilege has the burden of showing that it was not. See generally, with respect to the marital communication privilege, 8 Wigmore, Evidence § 2336 (McNaughton rev. 1961). See also Blau v. United States, 340 U.S. 332, 333–335 (1951) (holding that marital communications are presumed to be confidential). In adopting by statute a revised version of the privileges article of the Uniform Rules of Evidence, New Jersey included such a provision in its statement of the lawyer-client privilege. N.J.Rev.Stat. § 2A:84A–20(3), added by N.J.Laws 1960, Ch. 52, p. 452.

If the privilege claimant were required to show that the communication was made in confidence, he would be compelled, in many cases, to reveal the subject matter of the communication in order to establish his right to the privilege. Hence, Section 917 is included to establish a presumption of confidentiality, if this is not already the existing law in California. See Sharon v. Sharon, 79 Cal. 633, 678, 22 Pac. 26, 40 (1889) (attorney-client privilege); Hager v. Shindler, 29 Cal. 47, 63 (1865) ("Prima facie, all communications made by a client to his attorney or counsel [in the course of that relationship] must be regarded as confidential.").

To overcome the presumption, the proponent of the evidence must persuade the presiding officer that the communication was not made in confidence. Of course, if the facts show that the communication was not intended to be kept in confidence, the communication is not privileged. See Solon v. Lichtenstein, 39 Cal.2d 75, 244 P.2d 907 (1952). And the fact that the communication was made under circumstances where others could easily overhear is a strong indication that the communication was not intended to be confidential and is, therefore, unprivileged. See Sharon v. Sharon, 79 Cal. 633, 677, 22 Pac. 26, 39 (1889); People v. Castiel, 153 Cal.App.2d 653, 315 P.2d 79 (1957).

§ 918. Error in overruling claim of privilege

A party may predicate error on a ruling disallowing a claim of privilege only if he is the holder of the privilege, except that a party may predicate error on a ruling disallowing a claim of privilege by his spouse under Section 970 or 971.

LAW REVISION COMMISSION COMMENT

This section is consistent with existing law. See People v. Gonzales, 56 Cal.App. 330, 204 Pac. 1088 (1922), and discussion of similar cases cited in Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article V. Privileges), 6 Cal.Law Revision Comm'n, Rep., Rec. & Studies 201, 525 note 5 (1964). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 919. Admissibility where disclosure erroneously compelled; claim of privilege; coercion

(a) Evidence of a statement or other disclosure of privileged information is inadmissible against a holder of the privilege if:

(1) A person authorized to claim the privilege claimed it but nevertheless disclosure erroneously was required to be made; or

(2) The presiding officer did not exclude the privileged information as required by Section 916.

(b) If a person authorized to claim the privilege claimed it, whether in the same or a prior proceeding, but nevertheless disclosure erroneously was required by the presiding officer to be made, neither the failure to refuse to disclose nor the failure to seek review of the order of the presiding officer requiring disclosure indicates consent to the disclosure or constitutes a waiver and, under these circumstances, the disclosure is one made under coercion.

LAW REVISION COMMISSION COMMENT 1965 ENACTMENT

Section 919 protects a holder of a privilege from the detriment he would otherwise suffer in a later proceeding when, in a prior proceeding, the presiding officer erroneously overruled a claim of privilege and compelled revelation of the privileged information. Although Section 912 provides that such a coerced disclosure does not waive a privilege, it does not provide specifically that evidence of the prior disclosure is inadmissible; Section 919 assures the inadmissibility of such evidence in the subsequent proceeding.

Section 919 probably states existing law. See People v. Abair, 102 Cal.App.2d 765, 228 P.2d 336 (1951) (prior disclosure by an attorney held inadmissible in a later proceeding where the holder of the privilege had first opportunity to object to attorney's testifying). See also People v. Kor, 129 Cal.App.2d 436, 277 P.2d 94 (1954). However, there is little case authority upon the proposition. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

1974 Amendment

Subdivision (b) has been added to Section 919 to make clear that, after disclosure of privileged information has been erroneously required to be made by order of a trial court or other presiding officer, neither the failure to refuse to disclose nor the failure to challenge the order (by, for example, a petition for a writ of habeas corpus or other special writ or by an appeal from a contempt order) amounts to a waiver and the disclosure is one made under coercion for the purposes of Sections 912(a) and 919(a) (1). See Section 905 (defining "presiding officer"). The addition of subdivision (b) will preclude any possibility of a contrary interpretation of Sections 912 and 919 based on the language found in Markwell v. Sykes, 173 Cal.App.2d 642, 649–650, 343 P.2d 769, 773–774 (1959). See Recommendation Relating to Erroneously Ordered Disclosure of Privileged Information, 11 Cal.L. Revision Comm'n Reports 1163 (1973).

The phrase "whether in the same or a prior proceeding" has been included in subdivision (b) to avoid any implication that might be drawn from the original Law Revision Commission Comment to Section 919 that subdivision (a) (1) applies only where the privilege was claimed in a prior proceeding. The protection afforded by Section 919, of course, also applies where a claim of privilege is made at an earlier stage in the same proceeding and the presiding officer erroneously overruled the claim and ordered disclosure of the privileged information to be made. [11 Cal.L.Rev.Comm. Reports 1163 (1974)]

§ 920. Implied repeal of other statutes related to privileges

Nothing in this division shall be construed to repeal by implication any other statute relating to privileges.

LAW REVISION COMMISSION COMMENT

Some of the statutes relating to privileges are found in other codes and are continued in force. See, e.g., Penal Code §§ 266h and 266i (making the marital communications privilege inapplicable in prosecutions for pimping and pandering respectively). Section 920 assures that nothing in this division makes privileged any information declared by statute to be unprivileged or makes unprivileged any information declared by statute to be privileged. [7 Cal.L.Rev. Reports 1 (1965)]

CHAPTER 4. PARTICULAR PRIVILEGES

ARTICLE 1. PRIVILEGE OF DEFENDANT IN CRIMINAL CASE

§ 930. Privilege not to be called as a witness and not to testify

To the extent that such privilege exists under the Constitution of the United States or the State of California, a defendant in a criminal case has a privilege not to be called as a witness and not to testify.

LAW REVISION COMMISSION COMMENT

Section 930 recognizes that the defendant in a criminal case has a constitutional privilege not to be called as a witness and not to testify. Cal.Const., Art. I, § 13. See Killpatrick v. Superior Court, 153 Cal.App.2d 146, 314 P.2d 164 (1957); People v. Talle, 111 Cal.App.2d 650, 245 P.2d 633 (1952). Section 930 also recognizes that the defendant may have a similar privilege under the United States Constitution. See Malloy v. Hogan, 378 U.S. 1 (1964). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

ARTICLE 2. PRIVILEGE AGAINST SELF–INCRIMINATION

§ 940. Privilege against self-incrimination

To the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him.

LAW REVISION COMMISSION COMMENT

Section 940 recognizes the privilege (derived from the California and United States Constitutions) of a person to refuse, when testifying, to give information that might tend to incriminate him. See Fross v. Wotton, 3 Cal.2d 384, 44 P.2d 350 (1935); In re Leavitt, 174 Cal.App.2d 535, 345 P.2d 75 (1959). This privilege should be distinguished from the privilege stated in Section 930 (privilege of defendant in a criminal case to refuse to testify at all).

Section 940 does not determine the scope of the privilege against self-incrimination; the scope of the privilege is determined by the pertinent provisions of the California and United States Constitutions as interpreted by the courts. See Cal.Const., Art. I, § 13. See also Malloy v. Hogan, 378 U.S. 1 (1964). Nor does Section 940 prescribe the exceptions to the privilege or indicate when it has been waived. This, too, is determined by the cases interpreting the pertinent provisions of the California and United States Constitutions. For a statement of the scope of the constitutional privilege and some of its exceptions, see Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article V. Privileges), 6 Cal.Law Revision Comm'n, Rep., Rec. & Studies 201, 215–218, 343–377 (1964). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

ARTICLE 3. LAWYER–CLIENT PRIVILEGE

§ 950. Lawyer

As used in this article, "lawyer" means a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.

LAW REVISION COMMISSION COMMENT

"Lawyer" is defined to include a person "reasonably believed by the client to be authorized" to practice law. Since the privilege is intended to encourage full disclosure, the client's reasonable belief that the person he is consulting is an attorney is sufficient to justify application of the privilege. See 8 Wigmore, Evidence § 2302 (McNaughton rev. 1961), and cases there cited in note 1. See also McCormick, Evidence § 92 (1954).

There is no requirement that the lawyer be licensed to practice in a jurisdiction that recognizes the lawyer-client privilege. Legal transactions frequently cross state and national boundaries and require consultation with attorneys from many different jurisdictions. When a California resident travels outside the State and has occasion to consult a lawyer during such travel, or when a lawyer from another state or nation participates in a transaction involving a California client, the client should be entitled to assume that his communications will be given as much protection as they would be if he consulted a California lawyer in California. A client should not be forced to inquire about the jurisdictions where the lawyer is authorized to practice and whether such jurisdictions recognize the lawyer-client privilege before he may safely communicate with the lawyer. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 951. Client

As used in this article, "client" means a person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity, and includes an incompetent (a) who himself so consults the lawyer or (b) whose guardian or conservator so consults the lawyer in behalf of the incompetent.

LAW REVISION COMMISSION COMMENT

Under Section 951, public entities have a privilege insofar as communications made in the course of the lawyer-client relationship are concerned. This codifies existing law. See Holm v. Superior Court, 42 Cal.2d 500, 267 P.2d 1025 (1954). Likewise, such unincorporated organizations as labor unions, social clubs, and fraternal societies have a lawyer-client privilege when the organization (rather than its individual members) is the client. See Evidence Code § 175 (defining "person") and § 200 (defining "public entity"). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 952. Confidential communication between client and lawyer

As used in this article, "confidential communication between client and lawyer" means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship. A communication between a client and his or her lawyer is not deemed lacking in confidentiality solely because the communication is transmitted by facsimile, cellular telephone, or other electronic means between the client and his or her lawyer.

LAW REVISION COMMISSION COMMENT

1965 Amendment

The requirement that the communication be made in the course of the lawyer-client relationship and be confidential is in accord with existing law. See City & County of San Francisco v. Superior Court, 37 Cal.2d 227, 234–235, 231 P.2d 26, 29–30 (1951).

Confidential communications also include those made to third parties—such as the lawyer's secretary, a physician, or similar expert—for the purpose of transmitting such information to the lawyer because they are "reasonably necessary for the transmission of the information." This codifies existing law. See, e.g., City & County of San Francisco v. Superior Court, supra (communication to a physician); Loftin v. Glaser, Civil No. 789604 (L.A.Super.Ct., July 23, 1964) (communication to an accountant), as reported in Los Angeles Daily Journal Report Section, August 25, 1964 (memorandum opinion of Judge Philbrick McCoy).

A lawyer at times may desire to have a client reveal information to an expert consultant in order that the lawyer may adequately advise his client. The inclusion of the words "or the accomplishment of the purpose for which the lawyer is consulted" assures that these communications, too, are within the scope of the privilege. This part of the definition may change existing law. Himmelfarb v. United States, 175 F.2d 924, 938–939 (9th Cir.1949), applying California law, held that the presence of an accountant during a lawyer-client consultation destroyed the privilege, but no California case directly in point has been found. Of course, if the expert consultant is acting merely as a conduit for communications from the client to the attorney, the doctrine of City & County of San Francisco v. Superior Court, supra, applies and the communication would be privileged under existing law as well as under this section. See also Evidence Code § 912(d) and the Comment thereto.

The words "other than those who are present to further the interest of the client in the consultation" indicate that a communication to a lawyer is nonetheless confidential even though it is made in the presence of another person—such as a spouse, parent, business associate, or joint client—who is present to further the interest of the client in the consultation. These words refer, too, to another person and his attorney who may meet with the client and his attorney in regard to a matter of joint concern. This may change existing law, for the presence of a third person sometimes has been held to destroy the confidential character of the consultation, even where the third person was present because of his concern for the welfare of the client. See Attorney–Client Privilege in California, 10 Stan.L.Rev. 297, 308 (1958), and authorities there cited in notes 67–71. See also Himmelfarb v. United States, supra. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

1967 Amendment

The express inclusion of "a legal opinion" in the last clause will preclude a possible construction of this section that would leave the attorney's uncommunicated legal opinion—which includes his impressions and conclusions—unprotected by the privilege. Such a construction would virtually destroy the privilege. [8 Cal.L.Rev.Comm. Reports 101 (1967)]

§ 953. Holder of the privilege

As used in this article, "holder of the privilege" means:

(a) The client, if the client has no guardian or conservator.

(b) A guardian or conservator of the client, if the client has a guardian or conservator.

(c) The personal representative of the client if the client is dead, including a personal representative appointed pursuant to Section 12252 of the Probate Code.

(d) A successor, assign, trustee in dissolution, or any similar representative of a firm, association, organization, partnership, business trust, corporation, or public entity that is no longer in existence.

LAW REVISION COMMISSION COMMENT

Under subdivisions (a) and (b), the guardian of a client is the holder of the privilege if the client has a guardian, and the client becomes the holder of the privilege when he no longer has a guardian. For example, if an underage client or his guardian consults a lawyer, the guardian is the holder of the privilege under subdivision (b) until the guardianship is terminated; thereafter, the client himself is the holder of the privilege. The present California law is uncertain. The statutes do not deal with the problem, and no appellate decision has discussed it.

Under subdivision (c), the personal representative of a client is the holder of the privilege when the client is dead. He may either claim or waive the privilege on behalf of the deceased client. This may be a change in California law. Under existing law, it seems probable that the privilege survives the death of the client and that no one can waive it after the client's death. See Collette v. Sarrasin, 184 Cal. 283, 289, 193 Pac. 571, 573 (1920). Hence, the privilege apparently is recognized even when it would be clearly to the interest of the estate of the deceased client to waive it. Under Section 953, however, the personal representative of a deceased client may waive the privilege. The purpose underlying the privilege—to provide a client with the assurance of confidentiality—does not require the recognition of the privilege when to do so is detrimental to his interest or to the interests of his estate. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 954. Lawyer-client privilege

Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:

(a) The holder of the privilege;

(b) A person who is authorized to claim the privilege by the holder of the privilege; or

(c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.

The relationship of attorney and client shall exist between a law corporation as defined in Article 10 (commencing with Section 6160) of Chapter 4 of Division 3 of the Business and Professions Code and the persons to whom it renders professional services, as well as between such persons and members of the State Bar employed by such corporation to render services to such persons. The word "persons" as used in this subdivision includes partnerships, corporations, limited liability companies, associations and other groups and entities.

LAW REVISION COMMISSION COMMENT

Section 954 is the basic statement of the lawyer-client privilege. Exceptions to this privilege are stated in Sections 956–962.

Persons entitled to claim the privilege. The persons entitled to claim the privilege are specified in subdivisions (a), (b), and (c). See Evidence Code § 953 for the definition of "holder of the privilege."

Eavesdroppers. Under Section 954, the lawyer-client privilege can be asserted to prevent anyone from testifying to a confidential communication. Thus, clients are protected against the risk of disclosure by eavesdroppers and other wrongful interceptors of confidential communications between lawyer and client. Probably no such protection was provided prior to the enactment of Penal Code Sections 653i and 653j. See People v. Castiel, 153 Cal.App.2d 653, 315 P.2d 79 (1957). See also Attorney–Client Privilege in California, 10 Stan.L.Rev. 297, 310–312 (1958), and cases there cited in note 84.

Penal Code Section 653j makes evidence obtained by electronic eavesdropping or recording in violation of the section inadmissible in "any judicial, administrative, legislative, or other proceeding." The section also provides a criminal penalty and contains definitions and exceptions. Penal Code Section 653i makes it a felony to eavesdrop by an electronic or other device upon a conversation between a person in custody of a public officer or on public property and that person's lawyer, religious advisor, or physician.

Section 954 is consistent with Penal Code Sections 653i and 653j but provides broader protection, for it protects against disclosure of confidential communications by anyone who obtained knowledge of the communication without the client's consent. See also Evidence Code § 912 (when disclosure with client's consent constitutes a waiver of the privilege). The use of the privilege to prevent testimony by eavesdroppers and those to whom the communication was wrongfully disclosed does not, however, affect the rule that the making of the communication under circumstances where others could easily overhear it is evidence that the client did not intend the communication to be confidential. See Sharon v. Sharon, 79 Cal. 633, 677, 22 Pac. 26, 39 (1889).

Termination of privilege. The privilege may be claimed by a person listed in Section 954, or the privileged information excluded by the presiding officer under Section 916, only if there is a holder of the privilege in existence. Hence, the privilege ceases to exist when the client's estate is finally distributed and his personal representative is discharged. This is apparently a change in California law. Under the existing law, it seems likely that the privilege continues to exist indefinitely after the client's death and that no one has authority to waive the privilege. See Collette v. Sarrasin, 184 Cal. 283, 193 Pac. 571 (1920). See generally Paley v. Superior Court, 137 Cal.App.2d 450, 290 P.2d 617 (1955), and discussion of the analogous situation in connection with the physician-patient privilege in Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article V. Privileges), 6 Cal.Law Revision Comm'n, Rep., Rec. & Studies 201, 408–410 (1964). Although there is good reason for maintaining the privilege while the estate is being administered—particularly if the estate is involved in litigation—there is little reason to preserve secrecy at the expense of excluding relevant evidence after the estate is wound up and the representative is discharged. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 955. When lawyer required to claim privilege

The lawyer who received or made a communication subject to the privilege under this article shall claim the privilege whenever he is present when the communication is sought to be disclosed and is authorized to claim the privilege under subdivision (c) of Section 954.

LAW REVISION COMMISSION COMMENT

The obligation of the lawyer to claim the privilege on behalf of the client, unless otherwise instructed by a person authorized to permit disclosure, is consistent with Section 6068(e) of the Business and Professions Code. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 956. Exception: Crime or fraud

There is no privilege under this article if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.

LAW REVISION COMMISSION COMMENT

California now recognizes this exception. Abbott v. Superior Court, 78 Cal.App.2d 19, 177 P.2d 317 (1947). Cf. Nowell v. Superior Court, 223 Cal.App.2d 652, 36 Cal.Rptr. 21 (1963). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 956.5. Reasonable belief that disclosure of confidential communication relating to representation of client is necessary to prevent criminal act that lawyer reasonably believes likely to result in death of, or substantial bodily harm to, an individual; exception to privilege

There is no privilege under this article if the lawyer reasonably believes that disclosure of any confidential communication relating to representation of a client is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in the death of, or substantial bodily harm to, an individual.

§ 957. Exception: Parties claiming through deceased client

There is no privilege under this article as to a communication relevant to an issue between parties all of whom claim through a deceased client, regardless of whether the claims are by testate or intestate succession, nonprobate transfer, or inter vivos transaction.

LAW REVISION COMMISSION COMMENT

The lawyer-client privilege does not apply to a communication relevant to an issue between parties all of whom claim through a deceased client. Under existing law, all must claim through the client by testate or intestate succession in order for this exception to be applicable; a claim by inter vivos transaction apparently is not within the exception. Paley v. Superior Court, 137 Cal.App.2d 450, 457–460, 290 P.2d 617, 621–623 (1955). Section 957 extends this exception to include inter vivos transactions.

The traditional exception for litigation between claimants by testate or intestate succession is based on the theory that claimants in privity with the estate claim through the client, not adversely, and the deceased client presumably would want his communications disclosed in litigation between such claimants so that his desires in regard to the disposition of his estate might be correctly ascertained and carried out. This rationale is equally applicable where one or more of the parties is claiming by inter vivos transaction as, for example, in an action between a party who claims under a deed (executed by a client in full possession of his faculties) and a party who claims under a will executed while the client's mental stability was dubious. See the discussion in Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article V. Privileges), 6 Cal.Law Revision Comm'n, Rep., Rec. & Studies 201, 392–396 (1964). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 958. Exception: Breach of duty arising out of lawyer-client relationship

There is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.

LAW REVISION COMMISSION COMMENT

This exception has not been recognized by a holding in any California case, although dicta in several opinions indicate that it would be recognized if the question were presented in a proper case. People v. Tucker, 61 Cal.2d 828, 40 Cal.Rptr. 609, 395 P.2d 449 (1964); Henshall v. Coburn, 177 Cal. 50, 169 Pac. 1014 (1917); Pacific Tel. & Tel. Co. v. Fink, 141 Cal.App.2d 332, 335, 296 P.2d 843, 845 (1956); Fleschler v. Strauss, 15 Cal.App.2d 735, 60 P.2d 193 (1936). See generally Witkin, California Evidence § 419 (1958).

It would be unjust to permit a client either to accuse his attorney of a breach of duty and to invoke the privilege to prevent the attorney from bringing forth evidence in defense of the charge or to refuse to pay his attorney's fee and invoke the privilege to defeat the attorney's claim. Thus, for example, if the defendant in a criminal action claims that his lawyer did not provide him with an adequate defense, communications between the lawyer and client relevant to that issue are not privileged. See People v. Tucker, 61 Cal.2d 828, 40 Cal.Rptr. 609, 395 P.2d 449 (1964). The duty involved must, of course, be one arising out of the lawyer-client relationship, e.g., the duty of the lawyer to exercise reasonable diligence on behalf of his client, the duty of the lawyer to care faithfully and account for his client's property, or the client's duty to pay for the lawyer's services. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 959. Exception: Lawyer as attesting witness

There is no privilege under this article as to a communication relevant to an issue concerning the intention or competence of a client executing an attested document of which the lawyer is an attesting witness, or concerning the execution or attestation of such a document.

LAW REVISION COMMISSION COMMENT

This exception relates to the type of communication about which an attesting witness would testify. The mere fact that an attorney acts as an attesting witness should not destroy the lawyer-client privilege as to all statements made concerning the document attested; but the privilege should not prohibit the lawyer from performing the duties expected of an attesting witness. Under existing law, the attesting witness exception is broader, having been used as a device to obtain information which the lawyer who is an attesting witness received in his capacity as a lawyer rather than as an attesting witness. See In re Mullin, 110 Cal. 252, 42 Pac. 645 (1895). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 960. Exception: Intention of deceased client concerning writing affecting property interest

There is no privilege under this article as to a communication relevant to an issue concerning the intention of a client, now deceased, with respect to a deed of conveyance, will, or other writing, executed by the client, purporting to affect an interest in property.

LAW REVISION COMMISSION COMMENT

Although the attesting witness exception stated in Section 959 is limited to information of the kind to which one would expect an attesting witness to testify, there is merit to having an exception that applies to all dispositive instruments. A client ordinarily would desire his lawyer to communicate his true intention with regard to a dispositive instrument if the instrument itself leaves the matter in doubt and the client is deceased. Likewise, the client ordinarily would desire his attorney to testify to communications relevant to the validity of such instruments after the client dies. Accordingly, two additional exceptions—Sections 960 and 961—are provided for this purpose. These exceptions have been recognized by the California decisions only in cases where the lawyer is an attesting witness. See the Comment to Evidence Code § 959. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 961. Exception: Validity of writing affecting property interest

There is no privilege under this article as to a communication relevant to an issue concerning the validity of a deed of conveyance, will, or other writing, executed by a client, now deceased, purporting to affect an interest in property.

LAW REVISION COMMISSION COMMENT

See the Comment to Section 960. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 962. Exception: Joint clients

Where two or more clients have retained or consulted a lawyer upon a matter of common interest, none of them, nor the successor in interest of any of them, may claim a privilege under this article as to a communication made in the course of that relationship when such communication is offered in a civil proceeding between one of such clients (or his successor in interest) and another of such clients (or his successor in interest).

LAW REVISION COMMISSION COMMENT

This section states existing law. Clyne v. Brock, 82 Cal.App.2d 958, 965, 188 P.2d 263, 267 (1947); Croce v. Superior Court, 21 Cal.App.2d 18, 68 P.2d 369 (1937). See also Harris v. Harris, 136 Cal. 379, 69 Pac. 23 (1902). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

ARTICLE 4. PRIVILEGE NOT TO TESTIFY AGAINST SPOUSE

§ 970. Spouse's privilege not to testify against spouse; exception

Except as otherwise provided by statute, a married person has a privilege not to testify against his spouse in any proceeding.

LAW REVISION COMMISSION COMMENT

Under this article, a married person has two privileges: (1) a privilege not to testify against his spouse in any proceeding (Section 970) and (2) a privilege not to be called as a witness in any proceeding to which his spouse is a party (Section 971).

The privileges under this article are not as broad as the privilege provided by existing law. Under existing law, a married person has a privilege to prevent his spouse from testifying against him, but only the witness spouse has a privilege under this article. Under the existing law, a married person may refuse to testify for the other spouse, but no such privilege exists under this article. For a discussion of the reasons for these changes in existing law, see the Law Revision Commission's Comment to Code of Civil Procedure Section 1881 (superseded by the Evidence Code).

The rationale of the privilege provided by Section 970 not to testify against one's spouse is that such testimony would seriously disturb or disrupt the marital relationship. Society stands to lose more from such disruption than it stands to gain from the testimony which would be available if the privilege did not exist. The privilege is based in part on a previous recommendation and study of the California Law Revision Commission. See 1 Cal.Law Revision Comm'n, Rep., Rec. & Studies, Recommendation and Study Relating to the Marital "For and Against" Testimonial Privilege at F–1 (1957). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 971. Privilege not to be called as a witness against spouse

Except as otherwise provided by statute, a married person whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party to that proceeding without the prior express consent of the spouse having the privilege under this section unless the party calling the spouse does so in good faith without knowledge of the marital relationship.

LAW REVISION COMMISSION COMMENT

The privilege of a married person not to be called as a witness against his spouse is somewhat similar to the privilege given the defendant in a criminal case not to be called as a witness (Section 930). This privilege is necessary to avoid the prejudicial effect. For example, of the prosecution's calling the defendant's wife as a witness, thus forcing her to object before the jury. The privilege not to be called as a witness does not apply, however, in a proceeding where the other spouse is not a party. Thus, a married person may be called as a witness in a grand jury proceeding because his spouse is not a party to that proceeding, but the witness in the grand jury proceeding may claim the privilege under Section 970 to refuse to answer a question that would compel him to testify against his spouse. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 972. Exceptions to privilege

A married person does not have a privilege under this article in:

(a) A proceeding brought by or on behalf of one spouse against the other spouse.

(b) A proceeding to commit or otherwise place his or her spouse or his or her spouse's property, or both, under the control of another because of the spouse's alleged mental or physical condition.

(c) A proceeding brought by or on behalf of a spouse to establish his or her competence.

(d) A proceeding under the Juvenile Court Law, Chapter 2 (commencing with Section 200) of Part 1 of Division 2 of the Welfare and Institutions Code.

(e) A criminal proceeding in which one spouse is charged with:

(1) A crime against the person or property of the other spouse or of a child, parent, relative, or cohabitant of either, whether committed before or during marriage.

(2) A crime against the person or property of a third person committed in the course of committing a crime against the person or property of the other spouse, whether committed before or during marriage.

(3) Bigamy.

(4) A crime defined by Section 270 or 270a of the Penal Code.

(f) A proceeding resulting from a criminal act which occurred prior to legal marriage of the spouses to each other regarding knowledge acquired prior to that marriage if prior to the legal marriage the witness spouse was aware that his or her spouse had been arrested for or had been formally charged with the crime or crimes about which the spouse is called to testify.

(g) A proceeding brought against the spouse by a former spouse so long as the property and debts of the marriage have not been adjudicated, or in order to establish, modify, or enforce a child, family or spousal support obligation arising from the marriage to the former spouse; in a proceeding brought against a spouse by the other parent in order to establish, modify, or enforce a child support obligation for a child of a nonmarital relationship of the spouse; or in a proceeding brought against a spouse by the guardian of a child of that spouse in order to establish, modify, or enforce a child support obligation of the spouse. The married person does not have a privilege under this subdivision to refuse to provide information relating to the issues of income, expenses, assets, debts, and employment of either spouse, but may assert the privilege as otherwise provided in this article if other information is requested by the former spouse, guardian, or other parent of the child.

Any person demanding the otherwise privileged information made available by this subdivision, who also has an obligation to support the child for whom an order to establish, modify, or enforce child support is sought, waives his or her marital privilege to the same extent as the spouse as provided in this subdivision.

LAW REVISION COMMISSION COMMENT

The exceptions to the privileges under this article are similar to those contained in Code of Civil Procedure Section 1881(1) and Penal Code Section 1322, both of which are superseded by the Evidence Code. However, the exceptions in this section have been drafted so that they are consistent with those provided in Article 5 (commencing with Section 980) of this chapter (the privilege for confidential marital communications).

A discussion of comparable exceptions may be found in the Comments to the sections in Article 5 of this chapter. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 973. Waiver of privilege

(a) Unless erroneously compelled to do so, a married person who testifies in a proceeding to which his spouse is a party, or who testifies against his spouse in any proceeding, does not have a privilege under this article in the proceeding in which such testimony is given.

(b) There is no privilege under this article in a civil proceeding brought or defended by a married person for the immediate benefit of his spouse or of himself and his spouse.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Section 973 contains special waiver provisions for the privileges provided by this article.

Subdivision (a). Under subdivision (a), a married person who testifies in a proceeding to which his spouse is a party waives both privileges provided for in this article. Thus, for example, a married person cannot call his spouse as a witness to give favorable testimony and have that spouse invoke the privilege provided in Section 970 to keep from testifying on cross-examination to unfavorable matters; nor can a married person testify for an adverse party as to particular matters and then invoke the privilege not to testify against his spouse as to other matters.

In any proceeding where a married person's spouse is not a party, the privilege not to be called as a witness is not available, and a married person may testify like any other witness without waiving the privilege provided under Section 970 so long as he does not testify against his spouse. However, under subdivision (a), the privilege not to testify against his spouse in that proceeding is waived as to all matters if he testifies against his spouse as to any matter.

The word "proceeding" is defined in Section 901 to include any action, civil or criminal. Hence, the privilege is waived for all purposes in an action if the spouse entitled to claim the privilege testifies at any time during the action. For example, if a civil action involves issues being separately tried, a wife whose husband is a party to the litigation may not testify for her husband at one trial and invoke and privilege in order to avoid testifying against him at a separate trial of a different issue. Nor may a wife testify against her husband at a preliminary hearing of a criminal action and refuse to testify against him at the trial.

Subdivision (b). This subdivision precludes married persons from taking unfair advantage of their marital status to escape their duty to give testimony under Section 776, which supersedes Code of Civil Procedure Section 2055. It recognizes a doctrine of waiver that has been developed in the California cases. Thus, for example, when suit is brought to set aside a conveyance from husband to wife allegedly in fraud of the husband's creditors, both spouses being named as defendants, it has been held that setting up the conveyance in the answer as a defense waives the privilege. Tobias v. Adams, 201 Cal. 689, 258 Pac. 588 (1927); Schwartz v. Brandon, 97 Cal.App. 30, 275 Pac. 448 (1929). But cf. Marple v. Jackson, 184 Cal. 411, 193 Pac. 940 (1920). Also, when husband and wife are joined as defendants in a quiet title action and assert a claim to the property, they have been held to have waived the privilege. Hagen v. Silva, 139 Cal.App.2d 199, 293 P.2d 143 (1956). And when both spouses joined as plaintiffs in an action to recover damages to one of them, each was held to have waived the privilege as to the testimony of the other. In re Strand, 123 Cal.App. 170, 11 P.2d 89 (1932). (It should be noted that, with respect to damages for personal injuries, Civil Code Section 163.5 (added by Cal.Stats.1957, Ch. 2334, § 1, p. 4066) provides that all damages awarded to a married person in a civil action for personal injuries are the separate property of such married person.) This principle of waiver has seemingly been developed by the case law to prevent a spouse from refusing to testify as to matters which affect his own interest on the ground that such testimony would also be "against" his spouse. It has been held, however, that a spouse does not waive the privilege by making the other spouse his agent, even as to transactions involving the agency. Ayres v. Wright, 103 Cal.App. 610, 284 Pac. 1077 (1930).

ARTICLE 5. PRIVILEGE FOR CONFIDENTIAL MARITAL COMMUNICATIONS

§ 980. Confidential marital communication privilege

Subject to Section 912 and except as otherwise provided in this article, a spouse (or his guardian or conservator when he has a guardian or conservator), whether or not a party, has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he claims the privilege and the communication was made in confidence between him and the other spouse while they were husband and wife.

LAW REVISION COMMISSION COMMENT

Section 980 is the basic statement of the privilege for confidential marital communications. Exceptions to this privilege are stated in Sections 981–987.

Who can claim the privilege. Under Section 980, both spouses are the holders of the privilege and either spouse may claim it. Under existing law, the privilege may belong only to the nontestifying spouse inasmuch as Code of Civil Procedure Section 1881(1), superseded by the Evidence Code, provides: "[N]or can either ... be, without the consent of the other, examined as to any communication made by one to the other during the marriage." (Emphasis added.) It is likely, however, that Section 1881(1) would be construed to grant the privilege to both spouses. See In re De Neef, 42 Cal.App.2d 691, 109 P.2d 741 (1941). But see People v. Keller, 165 Cal.App.2d 419, 423–424, 332 P.2d 174, 176 (1958) (dictum).

A guardian of an incompetent spouse may claim the privilege on behalf of that spouse. However, when a spouse is dead, no one can claim the privilege for him; the privilege, if it is to be claimed at all, can be claimed only by or on behalf of the surviving spouse.

Termination of marriage. The privilege may be claimed as to confidential communications made during a marriage even though the marriage has been terminated at the time the privilege is claimed. This states existing law. Code Civ.Proc. § 1881(1) (superseded by the Evidence Code; People v. Mullings, 83 Cal. 138, 23 Pac. 229 (1890)). Free and open communication between spouses would be unduly inhibited if one of the spouses could be compelled to testify as to the nature of such communications after the termination of the marriage.

Eavesdroppers. The privilege may be asserted to prevent testimony by anyone, including eavesdroppers. To a limited extent, this constitutes a change in California law. See the Comment to Evidence Code § 954. See generally People v. Peak, 66 Cal.App.2d 894, 153 P.2d 464 (1944); People v. Morhar, 78 Cal.App. 380, 248 Pac. 975 (1926); People v. Mitchell, 61 Cal.App. 569, 215 Pac. 117 (1923). Section 980 also changes the existing law which permits a third party, to whom one of the spouses had revealed a confidential communication, to testify concerning it. People v. Swaile, 12 Cal.App. 192, 195–196, 107 Pac. 134, 137 (1909); People v. Chadwick, 4 Cal.App. 63, 72, 87 Pac. 384, 387, 388 (1906). See also Wolfle v. United States, 291 U.S. 7 (1934). Under Section 912, such conduct would constitute a waiver of the privilege only as to the spouse who makes the disclosure. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 981. Exception: Crime or fraud

There is no privilege under this article if the communication was made, in whole or in part, to enable or aid anyone to commit or plan to commit a crime or a fraud.

LAW REVISION COMMISSION COMMENT

California recognizes this as an exception to the lawyer-client privilege, but it does not appear to have been recognized in the California cases dealing with the confidential marital communications privilege. Nonetheless, the exception does not seem so broad that it would impair the values that the privilege is intended to preserve; in many cases, the evidence which would be admissible under this exception will be vital in order to do justice between the parties to a lawsuit. This exception would not, of course, infringe on the privileges accorded to a married person under Sections 970 and 971.

It is important to note that the exception provided by Section 981 is quite limited. It does not permit disclosure of communications that merely reveal a plan to commit a crime or fraud; it permits disclosure only of communications made to enable or aid anyone to commit or plan to commit a crime or fraud. Thus, unless the communication is for the purpose of obtaining assistance in the commission of the crime or fraud or in furtherance thereof, it is not made admissible by the exception provided in this section. Cf. People v. Pierce, 61 Cal.2d 879, 40 Cal.Rptr. 845, 395 P.2d 893 (1964) (husband and wife who conspire only between themselves against others cannot claim immunity from prosecution for conspiracy on the basis of their marital status). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 982. Commitment or similar proceeding

There is no privilege under this article in a proceeding to commit either spouse or otherwise place him or his property, or both, under the control of another because of his alleged mental or physical condition.

LAW REVISION COMMISSION COMMENT

Sections 982 and 983 express existing law. Code Civ.Proc. § 1881(1) (superseded by the Evidence Code). Commitment and competency proceedings are undertaken for the benefit of the subject person. Frequently, much or all of the evidence bearing on a spouse's competency or lack of competency will consist of communications to the other spouse. It would be undesirable to permit either spouse to invoke a privilege to prevent the presentation of this vital information inasmuch as these proceedings are of such vital importance both to society and to the spouse who is the subject of the proceedings. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 983. Competency proceedings

There is no privilege under this article in a proceeding brought by or on behalf of either spouse to establish his competence.

LAW REVISION COMMISSION COMMENT

See the Comment to Section 982. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 984. Proceeding between spouses

There is no privilege under this article in:

(a) A proceeding brought by or on behalf of one spouse against the other spouse.

(b) A proceeding between a surviving spouse and a person who claims through the deceased spouse, regardless of whether such claim is by testate or intestate succession or by inter vivos transaction.

LAW REVISION COMMISSION COMMENT

The exception to the marital communications privilege for litigation between the spouses states existing law. Code Civ.Proc. § 1881(1) (superseded by the Evidence Code). Section 984 extends the principle to cases where one of the spouses is dead and the litigation is between his successor and the surviving spouse. See generally Estate of Gillett, 73 Cal.App.2d 588, 166 P.2d 870 (1946). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 985. Criminal proceedings

There is no privilege under this article in a criminal proceeding in which one spouse is charged with:

(a) A crime committed at any time against the person or property of the other spouse or of a child of either.

(b) A crime committed at any time against the person or property of a third person committed in the course of committing a crime against the person or property of the other spouse.

(c) Bigamy.

(d) A crime defined by Section 270 or 270a of the Penal Code.

LAW REVISION COMMISSION COMMENT

This exception restates with minor variations an exception that is recognized under existing law. Code Civ.Proc. § 1881(1) (superseded by the Evidence Code). Sections 985 and 986 together create an exception for all the proceedings mentioned in Section 1322 of the Penal Code (superseded by the Evidence Code). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 986. Juvenile court proceedings

There is no privilege under this article in a proceeding under the Juvenile Court Law, Chapter 2 (commencing with Section 200) of Part 1 of Division 2 of the Welfare and Institutions Code.

LAW REVISION COMMISSION COMMENT

See the Comment to Section 985. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 987. Exception—Communication offered by spouse who is criminal defendant

There is no privilege under this article in a criminal proceeding in which the communication is offered in evidence by a defendant who is one of the spouses between whom the communication was made.

LAW REVISION COMMISSION COMMENT

This exception does not appear to have been recognized in any California case. Nonetheless, it is a desirable exception. When a married person is the defendant in a criminal proceeding and seeks to introduce evidence which is material to his defense, his spouse (or his former spouse) should not be privileged to withhold the information. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

ARTICLE 6. PHYSICIAN–PATIENT PRIVILEGE

§ 990. Physician

As used in this article, "physician" means a person authorized, or reasonably believed by the patient to be authorized, to practice medicine in any state or nation.

LAW REVISION COMMISSION COMMENT

Defining "physician" to include a person "reasonably believed by the patient to be authorized" to practice medicine changes the existing law which requires that the physician be licensed. See Code Civ.Proc. § 1881(4) (superseded by the Evidence Code). But, if this privilege is to be recognized, it should protect the patient from reasonable mistakes as to unlicensed practitioners. The privilege also should be applicable to communications made to a physician authorized to practice in any state or nation. When a California resident travels outside the State and has occasion to visit a physician during such travel, or when a physician from another state or nation participates in the treatment of a person in California, the patient should be entitled to assume that his communications will be given as much protection as they would be if he consulted a California physician in California. A patient should not be forced to inquire about the jurisdictions where the physician is authorized to practice medicine and whether such jurisdictions recognize the physician-patient privilege before he may safely communicate with the physician. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 991. Patient

As used in this article, "patient" means a person who consults a physician or submits to an examination by a physician for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his physical or mental or emotional condition.

COMMENT—SENATE COMMITTEE ON JUDICIARY

"Patient" means a person who consults a physician for the purpose of diagnosis or treatment. This definition modifies existing California law; under existing law, a person who consults a physician for diagnosis only has no physician-patient privilege. City & County of San Francisco v. Superior Court, 37 Cal.2d 227, 231, 231 P.2d 26, 28 (1951) (physician-patient privilege "cannot be invoked when no treatment is contemplated or given").

There seems to be little reason to perpetuate the distinction made between consultations for the purpose of diagnosis and consultations for the purpose of treatment. Persons do not ordinarily consult physicians from idle curiosity. They may be sent by their attorney to obtain a diagnosis in contemplation of some legal proceeding—in which case the attorney-client privilege will afford protection. See, e.g., City & County of San Francisco v. Superior Court, 37 Cal.2d 227, 231 P.2d 26 (1951). They may submit to an examination for insurance purposes—in which case the insurance contract will contain appropriate waiver provisions. They may seek diagnosis from one physician to check the diagnosis made by another. They may seek diagnosis from one physician in contemplation of seeking treatment from another. Communications made under such circumstances are as deserving of protection as are communications made to a treating physician.

§ 992. Confidential communication between patient and physician

As used in this article, "confidential communication between patient and physician" means information, including information obtained by an examination of the patient, transmitted between a patient and his physician in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons other than those who are present to further the interest of the patient in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the physician is consulted, and includes a diagnosis made and the advice given by the physician in the course of that relationship.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

This section generally restates existing law, except that it is uncertain whether a doctor's statement to a patient giving his diagnosis is presently covered by the privilege. See Code Civ.Proc. § 1881(4) (superseded by the Evidence Code). See also the Comment to Evidence Code § 952.

The definition here is sufficiently broad to include matters that are not ordinarily thought of as "communications." It is the communications that are defined here, however, to which reference is made throughout the remainder of the article. Under Section 994, the privilege applies to the communications defined here. And the exceptions in Sections 996–1007 that relate to particular communications also apply to the communications defined here. Thus, there is no information protected by the privilege in Section 994 to which the exceptions cannot be applied in an appropriate case.

LAW REVISION COMMISSION COMMENT 1967 AMENDMENT

The express inclusion of "a diagnosis" in the last clause will preclude a possible construction of this section that would leave an uncommunicated diagnosis unprotected by the privilege. Such a construction would virtually destroy the privilege. [8 Cal.L.Rev.Comm. Reports 101 (1967)]

§ 993. Holder of the privilege

As used in this article, "holder of the privilege" means:

(a) The patient when he has no guardian or conservator.

(b) A guardian or conservator of the patient when the patient has a guardian or conservator.

(c) The personal representative of the patient if the patient is dead.

LAW REVISION COMMISSION COMMENT

A guardian of the patient is the holder of the privilege if the patient has a guardian. If the patient has separate guardians of his estate and of his person, either guardian may claim the privilege. The provision making the personal representative of the patient the holder of the privilege when the patient is dead may change California law. The existing law may be that the privilege survives the death of the patient in some cases and that no one can waive it on behalf of the patient. See the discussion in Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article V. Privileges), 6 Cal.Law Revision Comm'n, Rep., Rec. & Studies 201, 408–410 (1964). Sections 993 and 994 enable the personal representative to protect the interest of the patient's estate in the confidentiality of these statements and to waive the privilege when the estate would benefit by waiver. When the patient's estate has no interest in preserving confidentiality, or when the estate has been distributed and the representative discharged, the importance of providing complete access to information relevant to a particular proceeding should prevail over whatever remaining interest the decedent may have had in secrecy. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 994. Physician-patient privilege

Subject to Section 912 and except as otherwise provided in this article, the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and physician if the privilege is claimed by:

(a) The holder of the privilege;

(b) A person who is authorized to claim the privilege by the holder of the privilege; or

(c) The person who was the physician at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he or she is otherwise instructed by a person authorized to permit disclosure.

The relationship of a physician and patient shall exist between a medical or podiatry corporation as defined in the Medical Practice Act and the patient to whom it renders professional services, as well as between such patients and licensed physicians and surgeons employed by such corporation to render services to such patients. The word "persons" as used in this subdivision includes partnerships, corporations, limited liability companies, associations, and other groups and entities.

LAW REVISION COMMISSION COMMENT

This section, like Section 954 (lawyer-client privilege), is based on the premise that the privilege must be claimed by a person who is authorized to claim the privilege. If there is no claim of privilege by a person with authority to make the claim, the evidence is admissible. See the Comments to Evidence Code §§ 993 and 954.

For the reasons indicated in the Comment to Section 954, an eavesdropper or other interceptor of a communication privileged under this section is not permitted to testify to the communication. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 995. When physician required to claim privilege

The physician who received or made a communication subject to the privilege under this article shall claim the privilege whenever he is present when the communication is sought to be disclosed and is authorized to claim the privilege under subdivision (c) of Section 994.

LAW REVISION COMMISSION COMMENT

The obligation of the physician to claim the privilege on behalf of the patient, unless otherwise instructed by a person authorized to permit disclosure, is consistent with Section 2379 of the Business and Professions Code. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 996. Patient-litigant exception

There is no privilege under this article as to a communication relevant to an issue concerning the condition of the patient if such issue has been tendered by:

(a) The patient;

(b) Any party claiming through or under the patient;

(c) Any party claiming as a beneficiary of the patient through a contract to which the patient is or was a party; or

(d) The plaintiff in an action brought under Section 376 or 377 of the Code of Civil Procedure for damages for the injury or death of the patient.

LAW REVISION COMMISSION COMMENT

Section 996 provides that the physician-patient privilege does not exist in any proceeding in which an issue concerning the condition of the patient has been tendered by the patient. If the patient himself tenders the issue of his condition, he should not be able to withhold relevant evidence from the opposing party by the exercise of the physician-patient privilege.

A limited form of this exception is recognized by Code of Civil Procedure Section 1881(4) (superseded by the Evidence Code) which makes the privilege inapplicable in personal injury actions. This exception is also recognized in various types of administrative proceedings where the patient tenders the issue of his condition. E.g., Labor Code §§ 4055, 5701, 5703, 6407, 6408 (proceedings before the Industrial Accident Commission). The exception provided by Section 996 applies not only to proceedings before the Industrial Accident Commission but also to any other proceeding where the patient tenders the issue of his condition. The exception in Section 996 also states existing law in applying the exception to other situations where the patient himself has raised the issue of his condition. In re Cathey, 55 Cal.2d 679, 690–692, 12 Cal.Rptr. 762, 768, 361 P.2d 426, 432 (1961) (prisoner in state medical facility waived physician-patient privilege by putting his mental condition in issue by application for habeas corpus); see also City & County of San Francisco v. Superior Court, 37 Cal.2d 227, 232, 231 P.2d 26, 28 (1951) (personal injury case).

Section 996 also provides that there is no privilege in an action brought under Section 377 of the Code of Civil Procedure (wrongful death). Under Code of Civil Procedure Section 1881(4) (superseded by the Evidence Code), a person authorized to bring the wrongful death action may consent to the testimony by the physician. As far as testimony by the physician is concerned, there is no reason why the rules of evidence should be different in a case where the patient brings the action and a case where someone else sues for the patient's wrongful death.

Section 996 also provides that there is no privilege in an action brought under Section 376 of the Code of Civil Procedure (parent's action for injury to child). In this case, as in a case under the wrongful death statute, the same rule of evidence should apply when the parent brings the action as applies when the child is the plaintiff. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 997. Exception: Crime or tort

There is no privilege under this article if the services of the physician were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a tort or to escape detection or apprehension after the commission of a crime or a tort.

LAW REVISION COMMISSION COMMENT

This section is considerably broader in scope than Section 956 which provides that the lawyer-client privilege does not apply when the communication was made to enable anyone to commit or plan to commit a crime or a fraud. Section 997 creates an exception to the physician-patient privilege where the services of the physician were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a tort, or to escape detection or apprehension after commission of a crime or a tort. People seldom, if ever, consult their physicians in regard to matters which might subsequently be determined to be a tort, and there is no desirable end to be served by encouraging such communications. On the other hand, people often consult lawyers about matters which may later turn out to be torts and it is desirable to encourage discussion of such matters with lawyers. Whether the exception provided by Section 997 now exists in California has not been determined in any decided case, but it probably would be recognized in an appropriate case in view of the similar court-created exception to the lawyer-client privilege. See the Comment to Evidence Code § 956. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 998. Exception: Criminal proceeding

There is no privilege under this article in a criminal proceeding.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

The physician-patient privilege is not now applicable in a criminal proceeding. Code Civ.Proc. § 1881(4) (superseded by the Evidence Code). See also People v. Griffith, 146 Cal. 339, 80 Pac. 68 (1905).

§ 999. Communication relating to patient condition in proceeding to recover damages; good cause

There is no privilege under this article as to a communication relevant to an issue concerning the condition of the patient in a proceeding to recover damages on account of the conduct of the patient if good cause for disclosure of the communication is shown.

COMMENT

Section 999 makes the physician-patient privilege inapplicable in civil actions to recover damages for any criminal conduct, whether or not felonious, on the part of the patient. Under Sections 1290–1292 (hearsay), the evidence admitted in the criminal trial would be admissible in a subsequent civil trial as former testimony. Thus, if the exception provided by Section 999 did not exist, the evidence subject to the privilege would be available in a civil trial only if a criminal trial were conducted first; it would not be available if the civil trial were conducted first. The admissibility of evidence should not depend on the order in which civil and criminal matters are tried. This exception is provided, therefore, so that the same evidence is available in the civil case without regard to when the criminal case is tried.

§ 1000. Parties claiming through deceased patient

There is no privilege under this article as to a communication relevant to an issue between parties all of whom claim through a deceased patient, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction.

LAW REVISION COMMISSION COMMENT

See the Comment to Section 957. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1001. Breach of duty arising out of physician-patient relationship

There is no privilege under this article as to a communication relevant to an issue of breach, by the physician or by the patient, of a duty arising out of the physician-patient relationship.

LAW REVISION COMMISSION COMMENT

See the Comment to Section 658. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1002. Intention of deceased patient concerning writing affecting property interest

There is no privilege under this article as to a communication relevant to an issue concerning the intention of a patient, now deceased, with respect to a deed of conveyance, will, or other writing, executed by the patient, purporting to affect an interest in property.

LAW REVISION COMMISSION COMMENT

Existing law provides exceptions virtually coextensive with those provided in Sections 1002 and 1003. Code Civ.Proc. § 1881(4) (superseded by the Evidence Code). See the Comment to Section 960. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1003. Validity of writing affecting property interest

There is no privilege under this article as to a communication relevant to an issue concerning the validity of a deed of conveyance, will, or other writing, executed by a patient, now deceased, purporting to affect an interest in property.

LAW REVISION COMMISSION COMMENT

See the Comment to Section 1002. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1004. Commitment or similar proceeding

There is no privilege under this article in a proceeding to commit the patient or otherwise place him or his property, or both, under the control of another because of his alleged mental or physical condition.

LAW REVISION COMMISSION COMMENT

This exception covers not only commitments of mentally ill persons but also such cases as the appointment of a conservator under Probate Code Section 1751. In these cases, the proceedings are being conducted for the benefit of the patient and he should not have a privilege to withhold evidence that the court needs in order to act properly for his welfare. There is no similar exception in existing law. McClenahan v. Keyes, 188 Cal. 574, 584, 206 Pac. 454, 458 (1922) (dictum). But see 35 Ops.Cal.Atty.Gen. 226 (1960), regarding the unavailability of the present physician-patient privilege where the physician acts pursuant to court appointment for the explicit purpose of giving testimony. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1005. Proceeding to establish competence

There is no privilege under this article in a proceeding brought by or on behalf of the patient to establish his competence.

LAW REVISION COMMISSION COMMENT

This exception is new to California law. When a patient has placed his mental condition in issue by instituting a proceeding to establish his competence, he should not be permitted to withhold the most vital evidence relating thereto. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1006. Required report

There is no privilege under this article as to information that the physician or the patient is required to report to a public employee, or as to information required to be recorded in a public office, if such report or record is open to public inspection.

LAW REVISION COMMISSION COMMENT

This exception is not recognized by existing law. However, no valid purpose is served by preventing the use of relevant information when the law requiring the information to be reported to a public office does not restrict disclosure. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1007. Exception—Proceeding to terminate right, license or privilege

There is no privilege under this article in a proceeding brought by a public entity to determine whether a right, authority, license, or privilege (including the right or privilege to be employed by the public entity or to hold a public office) should be revoked, suspended, terminated, limited, or conditioned.

ARTICLE 7. PSYCHOTHERAPIST–PATIENT PRIVILEGE

§ 1010. Psychotherapist

As used in this article, "psychotherapist" means:

(a) A person authorized, or reasonably believed by the patient to be authorized, to practice medicine in any state or nation who devotes, or is reasonably believed by the patient to devote, a substantial portion of his or her time to the practice of psychiatry.

(b) A person licensed as a psychologist under Chapter 6.6 (commencing with Section 2900) of Division 2 of the Business and Professions Code.

(c) A person licensed as a clinical social worker under Article 4 (commencing with Section 4996) of Chapter 14 of Division 2 of the Business and Professions Code, when he or she is engaged in applied psychotherapy of a nonmedical nature.

(d) A person who is serving as a school psychologist and holds a credential authorizing that service issued by the state.

(e) A person licensed as a marriage, family, and child counselor under Chapter 13 (commencing with Section 4980) of Division 2 of the Business and Professions Code.

(f) A person registered as a psychological assistant who is under the supervision of a licensed psychologist or board certified psychiatrist as required by Section 2913 of the Business and Professions Code, or a person registered as a marriage, family, and child counselor intern who is under the supervision of a licensed marriage, family, and child counselor, a licensed clinical social worker, a licensed psychologist, or a licensed physician and surgeon certified in psychiatry, as specified in Section 4980.44 of the Business and Professions Code.

(g) A person registered as an associate clinical social worker who is under supervision as specified in Section 4996.23 of the Business and Professions Code.

(h) A person exempt from the Psychology Licensing Law pursuant to subdivision (d) of Section 2909 of the Business and Professions Code who is under the supervision of a licensed psychologist or board certified psychiatrist.

(i) A psychological intern as defined in Section 2911 of the Business and Professions Code who is under the supervision of a licensed psychologist or board certified psychiatrist.

(j) A trainee, as defined in subdivision (c) of Section 4980.03 of the Business and Professions Code, who is fulfilling his or her supervised practicum required by subparagraph (B) of paragraph (1) of subdivision (d) of Section 4980.36 of, or subdivision (c) of Section 4980.37 of, the Business and Professions Code and is supervised by a licensed psychologist, a board certified psychiatrist, a licensed clinical social worker, a licensed marriage and family therapist, or a licensed professional clinical counselor.

(k) A person licensed as a registered nurse pursuant to Chapter 6 (commencing with Section 2700) of Division 2 of the Business and Professions Code, who possesses a master's degree in psychiatric mental health nursing.

(l) An advanced practice registered nurse who is certified as a clinical nurse specialist pursuant to Article 9 (commencing with Section 2828) of Chapter 6 of Division 2 of the Business and Professions Code and who participates in expert clinical practice in the specialty of psychiatric-mental health nursing.

(m) A person rendering mental health treatment or counseling services as authorized pursuant to Section 6924 of the Family Code.

(n) A person licensed as a professional clinical counselor under Chapter 16 (commencing with Section 4999.10) of Division 2 of the Business and Professions Code.

(o) A person registered as a clinical counselor intern who is under the supervision of a licensed professional clinical counselor, a licensed marriage and family therapist, a licensed clinical social worker, a licensed psychologist, or a licensed physician and surgeon certified in psychiatry, as specified in Sections 4999.42 to 4999.46, inclusive, of the Business and Professions Code.

(p) A clinical counselor trainee, as defined in subdivision (g) of Section 4999.12 of the Business and Professions Code, who is fulfilling his or her supervised practicum required by paragraph (3) of subdivision (c) of Section 4999.32 of, or paragraph (3) of subdivision (c) of Section 4999.33 of, the Business and Professions Code, and is supervised by a licensed psychologist, a board-certified psychiatrist, a licensed clinical social worker, a licensed marriage and family therapist, or a licensed professional clinical counselor.

LAW REVISION COMMISSION COMMENT

A "psychotherapist" is defined to include only a person who is or who is reasonably believed to be a psychiatrist or who is a California certified psychologist (see Bus. & Prof.Code § 2900 et seq.). See the Comment to Section 990. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1010.5. Privileged communication between patient and educational psychologist

A communication between a patient and an educational psychologist, licensed under Article 5 (commencing with Section 4986) of Chapter 13 of Division 2 of the Business and Professions Code, shall be privileged to the same extent, and subject to the same limitations, as a communication between a patient and a psychotherapist described in subdivisions (c), (d), and (e) of Section 1010.

§ 1011. Patient

As used in this article, "patient" means a person who consults a psychotherapist or submits to an examination by a psychotherapist for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his mental or emotional condition or who submits to an examination of his mental or emotional condition for the purpose of scientific research on mental or emotional problems.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

See the Comment to Section 991. Section 1011 is comparable to Section 991 (physician-patient privilege) except that the definition of "patient" in Section 1011 includes not only persons seeking diagnosis or treatment of a mental or emotional condition but also persons who submit to examination for purposes of psychiatric or psychological research. See the Comment to Section 1014.

§ 1012. Confidential communication between patient and psychotherapist

As used in this article, "confidential communication between patient and psychotherapist" means information, including information obtained by an examination of the patient, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons other than those who are present to further the interest of the patient in the consultation, or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the psychotherapist is consulted, and includes a diagnosis made and the advice given by the psychotherapist in the course of that relationship.

LAW REVISION COMMISSION COMMENT

1965 Enactment

See the Comment to Section 992. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

1967 Amendment

The express inclusion of "a diagnosis" in the last clause will preclude a possible construction of this section that would leave an uncommunicated diagnosis unprotected by the privilege. Such a construction would virtually destroy the privilege. [8 Cal.L.Rev.Comm. Reports 101 (1967)]

1970 Amendment

Section 1012 is amended to add "including other patients present at joint therapy" in order to foreclose the possibility that the section would be construed not to embrace marriage counseling, family counseling, and other forms of group therapy. However, it should be noted that communications made in the course of joint therapy are within the privilege only if they are made "in confidence" and "by a means which ... discloses the information to no third persons other than those ... to whom disclosure is reasonably necessary for ... the accomplishment of the purpose for which the psychotherapist is consulted." The making of a communication that meets these two requirements in the course of joint therapy would not amount to a waiver of the privilege. See Evidence Code Section 912(c) and (d).

The other amendments are technical and conform the language of Section 1012 to that of Section 992, the comparable section relating to the physician-patient privilege. Deletion of the words "or examination" makes no substantive change since "consultation" is broad enough to cover an examination. See Section 992. Substitution of "for which the psychotherapist is consulted" for "of the consultation or examination" adopts the broader language used in subdivision (d) of Section 912 and in Section 992. [9 Cal.L.Rev.Comm. Reports 153 (1969)]

§ 1013. Holder of the privilege

As used in this article, "holder of the privilege" means:

(a) The patient when he has no guardian or conservator.

(b) A guardian or conservator of the patient when the patient has a guardian or conservator.

(c) The personal representative of the patient if the patient is dead.

LAW REVISION COMMISSION COMMENT

See the Comment to Section 993. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1014. Psychotherapist-patient privilege; application to individuals and entities

Subject to Section 912 and except as otherwise provided in this article, the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by:

(a) The holder of the privilege.

(b) A person who is authorized to claim the privilege by the holder of the privilege.

(c) The person who was the psychotherapist at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he or she is otherwise instructed by a person authorized to permit disclosure.

The relationship of a psychotherapist and patient shall exist between a psychological corporation as defined in Article 9 (commencing with Section 2995) of Chapter 6.6 of Division 2 of the Business and Professions Code, a marriage and family corporation as defined in Article 6 (commencing with Section 4987.5) of Chapter 13 of Division 2 of the Business and Professions Code, a licensed clinical social workers corporation as defined in Article 5 (commencing with Section 4998) of Chapter 14 of Division 2 of the Business and Professions Code, or a professional clinical counselor corporation as defined in Article 7 (commencing with Section 4999.123) of Chapter 16 of Division 2 of the Business and Professions Code, and the patient to whom it renders professional services, as well as between those patients and psychotherapists employed by those corporations to render services to those patients. The word "persons" as used in this subdivision includes partnerships, corporations, limited liability companies, associations and other groups and entities.

COMMENT—SENATE COMMITTEE ON JUDICIARY

This article creates a psychotherapist-patient privilege that provides much broader protection than the physician-patient privilege.

Psychiatrists now have only the physician-patient privilege which is enjoyed by physicians generally. On the other hand, persons who consult certified psychologists have a much broader privilege under Business and Professions Code Section 2904 (superseded by the Evidence Code). There is no rational basis for this distinction.

A broad privilege should apply to both psychiatrists and certified psychologists. Psychoanalysis and psychotherapy are dependent upon the fullest revelation of the most intimate and embarrassing details of the patient's life. Research on mental or emotional problems requires similar disclosure. Unless a patient or research subject is assured that such information can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which diagnosis and treatment or complete and accurate research depends.

The Law Revision Commission has received several reliable reports that persons in need of treatment sometimes refuse such treatment from psychiatrists because the confidentiality of their communications cannot be assured under existing law. Many of these persons are seriously disturbed and constitute threats to other persons in the community. Accordingly, this article establishes a new privilege that grants to patients of psychiatrists a privilege much broader in scope than the ordinary physician-patient privilege. Although it is recognized that the granting of the privilege may operate in particular cases to withhold relevant information, the interests of society will be better served if psychiatrists are able to assure patients that their confidences will be protected.

The Commission has also been informed that adequate research cannot be carried on in this field unless persons examined in connection therewith can be guaranteed that their disclosures will be kept confidential.

The privilege also applies to psychologists and supersedes the psychologist-patient privilege provided in Section 2904 of the Business and Professions Code. The new privilege is one for psychotherapists generally.

Generally, the privilege provided by this article follows the physician-patient privilege, and the Comments to Sections 990 through 1007 are pertinent. The following differences, however, should be noted:

(1) The psychotherapist-patient privilege applies in all proceedings. The physician-patient privilege does not apply in criminal proceedings. This difference in the scope of the two privileges is based on the fact that the Law Revision Commission has been advised that proper psychotherapy often is denied a patient solely because he will not walk freely to a psychotherapist for fear that the latter may be compelled in a criminal proceeding to reveal what he has been told. The Commission has also been advised that research in this field will be unduly hampered unless the privilege is available in criminal proceedings.

Although the psychotherapist-patient privilege applies in a criminal proceeding, the privilege is not available to a defendant who puts his mental or emotional condition in issue, as, for example, by a plea of insanity or a claim of diminished responsibility. See Evidence Code §§ 1016 and 1023. In such a proceeding, the trier of fact should have available to it all information that can be obtained in regard to the defendant's mental or emotional condition. That evidence can often be furnished by the psychotherapist who examined or treated the patient-defendant.

(2) There is an exception in the physician-patient privilege for commitment or guardianship proceedings for the patient. Evidence Code § 1004. Section 1024 provides a considerably narrower exception in the psychotherapist-patient privilege.

(3) The physician-patient privilege does not apply in civil actions for damages arising out of the patient's criminal conduct. Evidence Code § 999. Nor does it apply in certain administrative proceedings. Evidence Code § 1007. No similar exceptions are provided in the psychotherapist-patient privilege. These exceptions appear in the physician-patient privilege because that privilege does not apply in criminal proceedings. See Evidence Code § 998. Therefore, an exception is also created for comparable civil and administrative cases. The psychotherapist-patient privilege, however, does apply in criminal cases; hence, there is no similar exception in administrative proceedings or civil actions involving the patient's criminal conduct.

§ 1014.5. Repealed by Stats.1994, c. 1270 (A.B.2659), § 2

§ 1015. When psychotherapist required to claim privilege

The psychotherapist who received or made a communication subject to the privilege under this article shall claim the privilege whenever he is present when the communication is sought to be disclosed and is authorized to claim the privilege under subdivision (c) of Section 1014.

LAW REVISION COMMISSION COMMENT

See the Comment to Section 995. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1016. Exception: Patient-litigant exception

There is no privilege under this article as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by:

(a) The patient;

(b) Any party claiming through or under the patient;

(c) Any party claiming as a beneficiary of the patient through a contract to which the patient is or was a party; or

(d) The plaintiff in an action brought under Section 376 or 377 of the Code of Civil Procedure for damages for the injury or death of the patient.

LAW REVISION COMMISSION COMMENT

See the Comment to Section 996. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1017. Exception: Psychotherapist appointed by court or board of prison terms

(a) There is no privilege under this article if the psychotherapist is appointed by order of a court to examine the patient, but this exception does not apply where the psychotherapist is appointed by order of the court upon the request of the lawyer for the defendant in a criminal proceeding in order to provide the lawyer with information needed so that he or she may advise the defendant whether to enter or withdraw a plea based on insanity or to present a defense based on his or her mental or emotional condition.

(b) There is no privilege under this article if the psychotherapist is appointed by the Board of Prison Terms to examine a patient pursuant to the provisions of Article 4 (commencing with Section 2960) of Chapter 7 of Title 1 of Part 3 of the Penal Code.

LAW REVISION COMMISSION COMMENT

1965 Enactment

Section 1017 provides an exception to the psychotherapist-patient privilege if the psychotherapist is appointed by order of a court to examine the patient. Generally, where the relationship of psychotherapist and patient is created by court order, there is not a sufficiently confidential relationship to warrant extending the privilege to communications made in the course of that relationship. Moreover, when the psychotherapist is appointed by the court, it is most often for the purpose of having the psychotherapist testify concerning his conclusions as to the patient's condition. It would be inappropriate to have the privilege apply in this situation. See generally 35 Ops.Cal.Atty.Gen. 226 (1960), regarding the unavailability of the present physician-patient privilege under these circumstances.

On the other hand, it is essential that the privilege apply where the psychotherapist is appointed by order of the court to provide the defendant's lawyer with information needed so that he may advise the defendant whether to enter a plea based on insanity or to present a defense based on his mental or emotional condition. If the defendant determines not to tender the issue of his mental or emotional condition, the privilege will protect the confidentiality of the communication between him and his court-appointed psychotherapist. If, however, the defendant determines to tender this issue—by a plea of not guilty by reason of insanity, by presenting a defense based on his mental or emotional condition, or by raising the question of his sanity at the time of the trial—the exceptions provided in Sections 1016 and 1023 make the privilege unavailable to prevent disclosure of the communications between the defendant and the psychotherapist. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

1967 Amendment

The words "or withdraw" are added to Section 1017 to make it clear that the psychotherapist-patient privilege applies in a case where the defendant in a criminal proceeding enters a plea based on insanity, submits to an examination by a court-appointed psychotherapist, and later withdraws the plea based on insanity prior to the trial on that issue. In such case, since the defendant does not tender an issue based on his mental or emotional condition at the trial, the privilege should remain applicable. Of course, if the defendant determines to go to trial on the plea based on insanity, the psychotherapist-patient privilege will not be applicable. See Section 1016.

It should be noted that violation of the constitutional right to counsel may require the exclusion of evidence that is not privileged under this article; and, even in cases where this constitutional right is not violated, the protection that this right affords may require certain procedural safeguards in the examination procedure and a limiting instruction if the psychotherapist's testimony is admitted. See In re Spencer, 63 Cal.2d 400, 46 Cal.Rptr. 753, 406 P.2d 33 (1965).

It is important to recognize that the attorney-client privilege may provide protection in some cases where an exception to the psychotherapist-patient privilege is applicable. See Section 952 and the Comment thereto. See also Sections 912(d) and 954 and the Comments thereto. [8 Cal.L.Rev.Comm. Reports 101 (1967)]

§ 1018. Exception: Crime or tort

There is no privilege under this article if the services of the psychotherapist were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a tort or to escape detection or apprehension after the commission of a crime or a tort.

LAW REVISION COMMISSION COMMENT

See the Comment to Section 997. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1019. Exception: Parties claiming through deceased patient

There is no privilege under this article as to a communication relevant to an issue between parties all of whom claim through a deceased patient, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction.

LAW REVISION COMMISSION COMMENT

See the Comment to Section 957. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1020. Exception: Breach of duty arising out of psychotherapist-patient relationship

There is no privilege under this article as to a communication relevant to an issue of breach, by the psychotherapist or by the patient, of a duty arising out of the psychotherapist-patient relationship.

LAW REVISION COMMISSION COMMENT

See the Comment to Section 958. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1021. Exception: Intention of deceased patient concerning writing affecting property interest

There is no privilege under this article as to a communication relevant to an issue concerning the intention of a patient, now deceased, with respect to a deed of conveyance, will, or other writing, executed by the patient, purporting to affect an interest in property.

LAW REVISION COMMISSION COMMENT

See the Comment to Section 1002. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1022. Exception: Validity of writing affecting property interest

There is no privilege under this article as to a communication relevant to an issue concerning the validity of a deed of conveyance, will, or other writing, executed by a patient, now deceased, purporting to affect an interest in property.

LAW REVISION COMMISSION COMMENT

See the Comment to Section 1002. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1023. Exception: Proceeding to determine sanity of criminal defendant

There is no privilege under this article in a proceeding under Chapter 6 (commencing with Section 1367) of Title 10 of Part 2 of the Penal Code initiated at the request of the defendant in a criminal action to determine his sanity.

LAW REVISION COMMISSION COMMENT

Section 1023 is included to make it clear that the psychotherapist-patient privilege does not apply when the defendant raises the issue of his sanity at the time of trial. The section probably is unnecessary because the exception provided by Section 1016 is broad enough to cover this situation. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1024. Exception: Patient dangerous to himself or others

There is no privilege under this article if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.

LAW REVISION COMMISSION COMMENT

This section provides a narrower exception to the psychotherapist-patient privilege than the comparable exceptions provided by Section 982 (privilege for confidential marital communications) and Section 1004 (physician-patient privilege). Although this exception might inhibit the relationship between the patient and his psychotherapist to a limited extent, it is essential that appropriate action be taken if the psychotherapist becomes convinced during the course of treatment that the patient is a menace to himself or others and the patient refuses to permit the psychotherapist to make the disclosure necessary to prevent the threatened danger. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1025. Exception: Proceeding to establish competence

There is no privilege under this article in a proceeding brought by or on behalf of the patient to establish his competence.

LAW REVISION COMMISSION COMMENT

See the Comment to Section 1005. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1026. Exception: Required report

There is no privilege under this article as to information that the psychotherapist or the patient is required to report to a public employee or as to information required to be recorded in a public office, if such report or record is open to public inspection.

LAW REVISION COMMISSION COMMENT

See the Comment to Section 1006. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1027. Exception: Child under 16 victim of crime

There is no privilege under this article if all of the following circumstances exist:

(a) The patient is a child under the age of 16.

(b) The psychotherapist has reasonable cause to believe that the patient has been the victim of a crime and that disclosure of the communication is in the best interest of the child.

LAW REVISION COMMISSION COMMENT 1970 ADDITION

Section 1027 provides an exception to the psychotherapist-patient privilege that is analogous to the exception provided by Section 1024 (patient dangerous to himself or others). The exception provided by Section 1027 is necessary to permit court disclosure of communications to a psychotherapist by a child who has been the victim of a crime (such as child abuse) in a proceeding in which the commission of such crime is a subject of inquiry. Although the exception provided by Section 1027 might inhibit the relationship between the patient and his psychotherapist to a limited extent, it is essential that appropriate action be taken if the psychotherapist becomes convinced during the course of treatment that the patient is the victim of a crime and that disclosure of the communication would be in the best interest of the child.

The text of both 1970 additions was identical. [9 Cal.L.Rev.Comm. Reports 137 (1970)]

§ 1028. Repealed by Stats.1985, c. 1077, §§ 1, 2

ARTICLE 8. CLERGY–PENITENT PRIVILEGES

§ 1030. Member of the clergy

As used in this article, "member of the clergy" means a priest, minister, religious practitioner, or similar functionary of a church or of a religious denomination or religious organization.

LAW REVISION COMMISSION COMMENT

"Clergyman" is broadly defined in this section. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1031. Penitent

As used in this article, "penitent" means a person who has made a penitential communication to a clergyman.

LAW REVISION COMMISSION COMMENT

This section defines "penitent" by incorporating the definitions in Sections 1030 and 1032. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1032. Penitential communication

As used in this article, "penitential communication" means a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a clergyman who, in the course of the discipline or practice of his church, denomination, or organization, is authorized or accustomed to hear such communications and, under the discipline or tenets of his church, denomination, or organization, has a duty to keep such communications secret.

LAW REVISION COMMISSION COMMENT

Under existing law, the communication must be a "confession." Code Civ.Proc. § 1881(3) (superseded by the Evidence Code). Section 1032 extends the protection that traditionally has been provided only to those persons whose religious practice involves "confessions." [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1033. Privilege of penitent

Subject to Section 912, a penitent, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communication if he claims the privilege.

LAW REVISION COMMISSION COMMENT

This section provides the penitent with a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communication. Because of the definition of "penitential communication," Section 1033 provides a broader privilege than the existing law.

Section 1033 differs from Code of Civil Procedure Section 1881(3) (superseded by the Evidence Code) in that Section 1881(3) gives a penitent a privilege only to prevent a clergyman from disclosing the communication. Literally, Section 1881(3) does not give the penitent himself the right to refuse disclosure. However, similar privilege statutes have been held to grant a privilege both to refuse to disclose and to prevent the other communicant from disclosing the privileged statement. See City & County of San Francisco v. Superior Court, 37 Cal.2d 227, 236, 231 P.2d 26, 31 (1951) (attorney-client privilege); Verdelli v. Gray's Harbor Commercial Co., 115 Cal. 517, 525–526, 47 Pac. 364, 366 (1897) ("a client cannot be compelled to disclose communications which his attorney cannot be permitted to disclose"). Hence, it is likely that Section 1881 (3) would be similarly construed.

Section 1033 also protects against disclosure by eavesdroppers. In this respect, the section provides the same scope of protection that is provided by the other confidential communication privileges. See the Comment to Section 954. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1034. Privilege of clergy

Subject to Section 912, a clergyman, whether or not a party, has a privilege to refuse to disclose a penitential communication if he claims the privilege.

LAW REVISION COMMISSION COMMENT

This section provides the clergyman with a privilege in his own right. Moreover, he may claim this privilege even if the penitent has waived the privilege granted him by Section 1033.

There may be several reasons for granting clergyman the traditional priest-penitent privilege. At least one underlying reason seems to be that the law will not compel a clergyman to violate—nor punish him for refusing to violate—the tenets of his church which require him to maintain secrecy as to confidential statements made to him in the course of his religious duties. See generally 8 Wigmore, Evidence §§ 2394–2396 (McNaughton rev. 1961).

The clergyman is under no legal compulsion to claim the privilege. Hence, a penitential communication will be admitted if the clergyman fails to claim the privilege and the penitent is deceased, incompetent, absent, or fails to claim the privilege. This probably changes existing law; but, if so, the change is desirable. For example, if a murderer had confessed the crime to a clergyman, the clergyman might under some circumstances (e.g., if the murderer has died) decline to claim the privilege and instead, give the evidence on behalf of an innocent third party who had been indicted for the crime. The extent to which a clergyman should keep secret or reveal penitential communications is not an appropriate subject for legislation; the matter is better left to the discretion of the individual clergyman involved and the discipline of the religious body of which he is a member. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

ARTICLE 8.5. SEXUAL ASSAULT COUNSELOR–VICTIM PRIVILEGE

§ 1035. Victim

As used in this article, "victim" means a person who consults a sexual assault counselor for the purpose of securing advice or assistance concerning a mental, physical, or emotional condition caused by a sexual assault.

§ 1035.2. Sexual assault counselor

As used in this article, "sexual assault counselor" means any of the following:

(a) A person who is engaged in any office, hospital, institution, or center commonly known as a rape crisis center, whose primary purpose is the rendering of advice or assistance to victims of sexual assault and who has received a certificate evidencing completion of a training program in the counseling of sexual assault victims issued by a counseling center that meets the criteria for the award of a grant established pursuant to Section 13837 of the Penal Code and who meets one of the following requirements:

(1) Is a psychotherapist as defined in Section 1010; has a master's degree in counseling or a related field; or has one year of counseling experience, at least six months of which is in rape crisis counseling.

(2) Has 40 hours of training as described below and is supervised by an individual who qualifies as a counselor under paragraph (1). The training, supervised by a person qualified under paragraph (1), shall include, but not be limited to, the following areas:

(A) Law.

(B) Medicine.

(C) Societal attitudes.

(D) Crisis intervention and counseling techniques.

(E) Role playing.

(F) Referral services.

(G) Sexuality.

(b) A person who is employed by any organization providing the programs specified in Section 13835.2 of the Penal Code, whether financially compensated or not, for the purpose of counseling and assisting sexual assault victims, and who meets one of the following requirements:

(1) Is a psychotherapist as defined in Section 1010; has a master's degree in counseling or a related field; or has one year of counseling experience, at least six months of which is in rape assault counseling.

(2) Has the minimum training for sexual assault counseling required by guidelines established by the employing agency pursuant to subdivision (c) of Section 13835.10 of the Penal Code, and is supervised by an individual who qualifies as a counselor under paragraph (1). The training, supervised by a person qualified under paragraph (1), shall include, but not be limited to, the following areas:

(A) Law.

(B) Victimology.

(C) Counseling.

(D) Client and system advocacy.

(E) Referral services.

§ 1035.4. Confidential communication between the sexual assault counselor and the victim; disclosure

As used in this article, "confidential communication between the sexual assault counselor and the victim" means information transmitted between the victim and the sexual assault counselor in the course of their relationship and in confidence by a means which, so far as the victim is aware, discloses the information to no third persons other than those who are present to further the interests of the victim in the consultation or those to whom disclosures are reasonably necessary for the transmission of the information or an accomplishment of the purposes for which the sexual assault counselor is consulted. The term includes all information regarding the facts and circumstances involving the alleged sexual assault and also includes all information regarding the victim's prior or subsequent sexual conduct, and opinions regarding the victim's sexual conduct or reputation in sexual matters.

The court may compel disclosure of information received by the sexual assault counselor which constitutes relevant evidence of the facts and circumstances involving an alleged sexual assault about which the victim is complaining and which is the subject of a criminal proceeding if the court determines that the probative value outweighs the effect on the victim, the treatment relationship, and the treatment services if disclosure is compelled. The court may also compel disclosure in proceedings related to child abuse if the court determines the probative value outweighs the effect on the victim, the treatment relationship, and the treatment services if disclosure is compelled.

When a court is ruling on a claim of privilege under this article, the court may require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and such other persons as the person authorized to claim the privilege is willing to have present. If the judge determines that the information is privileged and must not be disclosed, neither he or she nor any other person may ever disclose, without the consent of a person authorized to permit disclosure, what was disclosed in the course of the proceedings in chambers.

If the court determines certain information shall be disclosed, the court shall so order and inform the defendant. If the court finds there is a reasonable likelihood that particular information is subject to disclosure pursuant to the balancing test provided in this section, the following procedure shall be followed:

(1) The court shall inform the defendant of the nature of the information which may be subject to disclosure.

(2) The court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the sexual assault counselor regarding the information which the court has determined may be subject to disclosure.

(3) At the conclusion of the hearing, the court shall rule which items of information, if any, shall be disclosed. The court may make an order stating what evidence may be introduced by the defendant and the nature of questions to be permitted. The defendant may then offer evidence pursuant to the order of the court. Admission of evidence concerning the sexual conduct of the complaining witness is subject to Sections 352, 782, and 1103.

§ 1035.6. Holder of the privilege

As used in this article, "holder of the privilege" means:

(a) The victim when such person has no guardian or conservator.

(b) A guardian or conservator of the victim when the victim has a guardian or conservator.

(c) The personal representative of the victim if the victim is dead.

§ 1035.8. Sexual assault counselor privilege

A victim of a sexual assault, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the victim and a sexual assault counselor if the privilege is claimed by any of the following:

(a) The holder of the privilege;

(b) A person who is authorized to claim the privilege by the holder of the privilege; or

(c) The person who was the sexual assault counselor at the time of the confidential communication, but that person may not claim the privilege if there is no holder of the privilege in existence or if he or she is otherwise instructed by a person authorized to permit disclosure.

§ 1036. Claim of privilege by sexual assault counselor

The sexual assault counselor who received or made a communication subject to the privilege under this article shall claim the privilege if he or she is present when the communication is sought to be disclosed and is authorized to claim the privilege under subdivision (c) of Section 1035.8.

§ 1036.2. Sexual assault

As used in this article, "sexual assault" includes all of the following:

(a) Rape, as defined in Section 261 of the Penal Code.

(b) Unlawful sexual intercourse, as defined in Section 261.5 of the Penal Code.

(c) Rape in concert with force and violence, as defined in Section 264.1 of the Penal Code.

(d) Rape of a spouse, as defined in Section 262 of the Penal Code.

(e) Sodomy, as defined in Section 286 of the Penal Code, except a violation of subdivision (e) of that section.

(f) A violation of Section 288 of the Penal Code.

(g) Oral copulation, as defined in Section 288a of the Penal Code, except a violation of subdivision (e) of that section.

(h) Penetration of the genital or anal openings of another person with a foreign object, substance, instrument, or device, as specified in Section 289 of the Penal Code.

(i) Annoying or molesting a child under 18, as defined in Section 647a of the Penal Code.

(j) Any attempt to commit any of the above acts.

ARTICLE 8.7. DOMESTIC VIOLENCE COUNSELOR–VICTIM PRIVILEGE

§ 1037. Victim

As used in this article, "victim" means any person who suffers domestic violence, as defined in Section 1037.7.

§ 1037.1. Domestic violence counselor; qualifications; domestic violence victim service organization

(a)(1) As used in this article, "domestic violence counselor" means a person who is employed by a domestic violence victim service organization, as defined in this article, whether financially compensated or not, for the purpose or rendering advice or assistance to victims of domestic violence and who has at least 40 hours of training as specified in paragraph (2).

(2) The 40 hours of training shall be supervised by an individual who qualifies as a counselor under paragraph (1), and who has at least one year of experience counseling domestic violence victims for the domestic violence victim service organization. The training shall include, but need not be limited to, the following areas: history of domestic violence, civil and criminal law as it relates to domestic violence, the domestic violence victim-counselor privilege and other laws that protect the confidentiality of victim records and information, societal attitudes towards domestic violence, peer counseling techniques, housing, public assistance and other financial resources available to meet the financial needs of domestic violence victims, and referral services available to domestic violence victims.

(3) A domestic violence counselor who has been employed by the domestic violence victim service organization for a period of less than six months shall be supervised by a domestic violence counselor who has at least one year of experience counseling domestic violence victims for the domestic violence victim service organization.

(b) As used in this article, "domestic violence victim service organization" means a nongovernmental organization or entity that provides shelter, programs, or services to victims of domestic violence and their children, including, but not limited to, either of the following:

(1) Domestic violence shelter-based programs, as described in Section 18294 of the Welfare and Institutions Code.

(2) Other programs with the primary mission to provide services to victims of domestic violence whether or not that program exists in an agency that provides additional services.

§ 1037.2. Confidential communication; compulsion of disclosure by court; claim of privilege

(a) As used in this article, "confidential communication" means any information, including, but not limited to, written or oral communication, transmitted between the victim and the counselor in the course of their relationship and in confidence by a means which, so far as the victim is aware, discloses the information to no third persons other than those who are present to further the interests of the victim in the consultation or those to whom disclosures are reasonably necessary for the transmission of the information or an accomplishment of the purposes for which the domestic violence counselor is consulted. The term includes all information regarding the facts and circumstances involving all incidences of domestic violence, as well as all information about the children of the victim or abuser and the relationship of the victim with the abuser.

(b) The court may compel disclosure of information received by a domestic violence counselor which constitutes relevant evidence of the facts and circumstances involving a crime allegedly perpetrated against the victim or another household member and which is the subject of a criminal proceeding, if the court determines that the probative value of the information outweighs the effect of disclosure of the information on the victim, the counseling relationship, and the counseling services. The court may compel disclosure if the victim is either dead or not the complaining witness in a criminal action against the perpetrator. The court may also compel disclosure in proceedings related to child abuse if the court determines that the probative value of the evidence outweighs the effect of the disclosure on the victim, the counseling relationship, and the counseling services.

(c) When a court rules on a claim of privilege under this article, it may require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and such other persons as the person authorized to claim the privilege consents to have present. If the judge determines that the information is privileged and shall not be disclosed, neither he nor she nor any other person may disclose, without the consent of a person authorized to permit disclosure, any information disclosed in the course of the proceedings in chambers.

(d) If the court determines that information shall be disclosed, the court shall so order and inform the defendant in the criminal action. If the court finds there is a reasonable likelihood that any information is subject to disclosure pursuant to the balancing test provided in this section, the procedure specified in subdivisions (1), (2), and (3) of Section 1035.4 shall be followed.

§ 1037.3. Child abuse; reporting

Nothing in this article shall be construed to limit any obligation to report instances of child abuse as required by Section 11166 of the Penal Code.

§ 1037.4. Holder of the privilege

As used in this article, "holder of the privilege" means:

(a) The victim when he or she has no guardian or conservator.

(b) A guardian or conservator of the victim when the victim has a guardian or conservator, unless the guardian or conservator is accused of perpetrating domestic violence against the victim.

§ 1037.5. Privilege of refusal to disclose communication; claimants

A victim of domestic violence, whether or not a party to the action, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the victim and a domestic violence counselor in any proceeding specified in Section 901 if the privilege is claimed by any of the following persons:

(a) The holder of the privilege.

(b) A person who is authorized to claim the privilege by the holder of the privilege.

(c) The person who was the domestic violence counselor at the time of the confidential communication. However, that person may not claim the privilege if there is no holder of the privilege in existence or if he or she is otherwise instructed by a person authorized to permit disclosure.

§ 1037.6. Claim of privilege by counselor

The domestic violence counselor who received or made a communication subject to the privilege granted by this article shall claim the privilege whenever he or she is present when the communication is sought to be disclosed and he or she is authorized to claim the privilege under subdivision (c) of Section 1037.5.

§ 1037.7. Domestic violence

As used in this article, "domestic violence" means "domestic violence" as defined in Section 6211 of the Family Code.

LAW REVISION COMMISSION COMMENT

1993 Addition

Section 1037.7 substitutes a reference to the Family Code provision defining "domestic violence" for the definitions of "abuse," "domestic violence," and "family or household member" in the former section. This is not a substantive change, since the Family Code definition of "domestic violence" continues the substance of the omitted definitions. See Fam. Code § 6211 ("domestic violence" defined) & Comment. See also Fam. Code §§ 6203 ("abuse" defined), 6209 ("cohabitant" and "former cohabitant" defined). [23 Cal.L.Rev.Comm. Reports 1 (1993)]

LAW REVISION COMMISSION COMMENT

1993 Addition

Section 1037.7 substitutes a reference to the Family Code provision defining "domestic violence" for the definitions of "abuse," "domestic violence," and "family or household member" in the former section. This is not a substantive change, since the Family Code definition of "domestic violence" continues the substance of the omitted definitions. See Fam. Code § 6211 ("domestic violence" defined) & Comment. See also Fam. Code §§ 6203 ("abuse" defined), 6209 ("cohabitant" and "former cohabitant" defined). [23 Cal.L.Rev.Comm. Reports 1 (1993)]

ARTICLE 8.8 HUMAN TRAFFICKING CASEWORKER–VICTIM PRIVILEGE

§ 1038. Privilege

(a) A trafficking victim, whether or not a party to the action, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the victim and a human trafficking caseworker if the privilege is claimed by any of the following persons:

(1) The holder of the privilege.

(2) A person who is authorized to claim the privilege by the holder of the privilege.

(3) The person who was the human trafficking caseworker at the time of the confidential communication. However, that person may not claim the privilege if there is no holder of the privilege in existence or if he or she is otherwise instructed by a person authorized to permit disclosure. The human trafficking caseworker who received or made a communication subject to the privilege granted by this article shall claim the privilege whenever he or she is present when the communication is sought to be disclosed and he or she is authorized to claim the privilege under this section.

(b) A human trafficking caseworker shall inform a trafficking victim of any applicable limitations on confidentiality of communications between the victim and the caseworker. This information may be given orally.

§ 1038.1. Compulsion of disclosure by court

(a) The court may compel disclosure of information received by a human trafficking caseworker that constitutes relevant evidence of the facts and circumstances involving a crime allegedly perpetrated against the victim and that is the subject of a criminal proceeding, if the court determines that the probative value of the information outweighs the effect of disclosure of the information on the victim, the counseling relationship, and the counseling services. The court may compel disclosure if the victim is either dead or not the complaining witness in a criminal action against the perpetrator.

(b) When a court rules on a claim of privilege under this article, it may require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and those other persons that the person authorized to claim the privilege consents to have present.

(c) If the judge determines that the information is privileged and shall not be disclosed, neither he nor she nor any other person may disclose, without the consent of a person authorized to permit disclosure, any information disclosed in the course of the proceedings in chambers. If the court determines that information shall be disclosed, the court shall so order and inform the defendant in the criminal action. If the court finds there is a reasonable likelihood that any information is subject to disclosure pursuant to the balancing test provided in this section, the procedure specified in paragraphs (1), (2), and (3) of Section 1035.4 shall be followed.

§ 1038.2. Definitions

(a) As used in this article, "victim" means any person who is a "trafficking victim" as defined in Section 236.1.*

(b) As used in this article, "human trafficking caseworker" means any of the following:

(1) A person who is employed by any organization providing the programs specified in Section 18294 of the Welfare and Institutions Code, whether financially compensated or not, for the purpose of rendering advice or assistance to victims of human trafficking, who has received specialized training in the counseling of human trafficking victims, and who meets one of the following requirements:

(A) Has a master's degree in counseling or a related field; or has one year of counseling experience, at least six months of which is in the counseling of human trafficking victims.

(B) Has at least 40 hours of training as specified in this paragraph and is supervised by an individual who qualifies as a counselor under subparagraph (A), or is a psychotherapist, as defined in Section 1010. The training, supervised by a person qualified under subparagraph (A), shall include, but need not be limited to, the following areas: history of human trafficking, civil and criminal law as it relates to human trafficking, societal attitudes towards human trafficking, peer counseling techniques, housing, public assistance and other financial resources available to meet the financial needs of human trafficking victims, and referral services available to human trafficking victims. A portion of this training must include an explanation of privileged communication.

(2) A person who is employed by any organization providing the programs specified in Section 13835.2 of the Penal Code, whether financially compensated or not, for the purpose of counseling and assisting human trafficking victims, and who meets one of the following requirements:

(A) Is a psychotherapist as defined in Section 1010, has a master's degree in counseling or a related field, or has one year of counseling experience, at least six months of which is in rape assault counseling.

(B) Has the minimum training for human trafficking counseling required by guidelines established by the employing agency pursuant to subdivision (c) of Section 13835.10 of the Penal Code, and is supervised by an individual who qualifies as a counselor under subparagraph (A). The training, supervised by a person qualified under subparagraph (A), shall include, but not be limited to, law, victimology, counseling techniques, client and system advocacy, and referral services. A portion of this training must include an explanation of privileged communication.

(c) As used in this article, "confidential communication" means information transmitted between the victim and the caseworker in the course of their relationship and in confidence by a means which, so far as the victim is aware, discloses the information to no third persons other than those who are present to further the interests of the victim in the consultation or those to whom disclosures are reasonably necessary for the transmission of the information or an accomplishment of the purposes for which the human trafficking counselor is consulted. It includes all information regarding the facts and circumstances involving all incidences of human trafficking.

(d) As used in this article, "holder of the privilege" means the victim when he or she has no guardian or conservator, or a guardian or conservator of the victim when the victim has a guardian or conservator.

ARTICLE 9. OFFICIAL INFORMATION AND IDENTITY OF INFORMER

§ 1040. Privilege for official information

(a) As used in this section, "official information" means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.

(b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and:

(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state; or

(2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.

(c) Notwithstanding any other provision of law, the Employment Development Department shall disclose to law enforcement agencies, in accordance with the provisions of subdivision (k) of Section 1095 and subdivision (b) of Section 2714 of the Unemployment Insurance Code, information in its possession relating to any person if an arrest warrant has been issued for the person for commission of a felony.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Under existing law, official information is protected either by subdivision 5 of Code of Civil Procedure Section 1881 (which, like Section 1040, prohibits disclosure when the interest of the public would suffer thereby) or by specific statutes such as the provisions of the Revenue and Taxation Code prohibiting disclosure of information reported in tax returns. See, e.g., Rev. & Tax.Code §§ 19281–19289. Section 1881 is superseded by the Evidence Code, but the specific statutes protecting official information remain in effect. Evidence Code § 1040(b)(1).

Section 1040 permits the official information privilege to be invoked by the public entity or its authorized representative. Since the privilege is granted to enable the government to protect its secrets, no reason exists for permitting the privilege to be exercised by persons who are not concerned with the public interest. It should be noted, however, that another statute may provide a person with a privilege not to disclose a report he made to the government; the Evidence Code has no effect on that privilege. See the Comment to Evidence Code § 920. Where the government has received a report from an informant, the official information privilege may apply to that report. It does not apply, however, to the knowledge of the informant. The government does not acquire a privilege to prevent an informant from revealing his knowledge merely because that knowledge has been communicated to the government.

The official information privilege provided in Section 1040 does not extend to the identity of an informer. Section 1041 provides special rules for determining when the government has a privilege to keep secret the identity of an informer.

The privilege may be asserted to prevent testimony by anyone who has official information. This provides the public entity with more protection than existing law. See the Comment to Evidence Code § 954 (attorney-client privilege).

Official information is absolutely privileged if its disclosure is forbidden by either a federal or state statute. Other official information is subject to a conditional privilege: The judge must determine in each instance the consequences to the public of disclosure and the consequences to the litigant of nondisclosure and then decide which outweighs the other. He should, of course, be aware that the public has an interest in seeing that justice is done in the particular cause as well as an interest in the secrecy of the information.

§ 1041. Privilege for identity of informer

(a) Except as provided in this section, a public entity has a privilege to refuse to disclose the identity of a person who has furnished information as provided in subdivision (b) purporting to disclose a violation of a law of the United States or of this state or of a public entity in this state, and to prevent another from disclosing such identity, if the privilege is claimed by a person authorized by the public entity to do so and:

(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state; or

(2) Disclosure of the identity of the informer is against the public interest because there is a necessity for preserving the confidentiality of his identity that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the identity of the informer be disclosed in the proceeding. In determining whether disclosure of the identity of the informer is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.

(b) This section applies only if the information is furnished in confidence by the informer to:

(1) A law enforcement officer;

(2) A representative of an administrative agency charged with the administration or enforcement of the law alleged to be violated; or

(3) Any person for the purpose of transmittal to a person listed in paragraph (1) or (2).

(c) There is no privilege under this section to prevent the informer from disclosing his identity.

LAW REVISION COMMISSION COMMENT

Under existing law, the identity of an informer is protected by subdivision 5 of Code of Civil Procedure Section 1881 (which, like Section 1041, prohibits disclosure when the interest of the public would suffer thereby). Section 1881 is superseded by the Evidence Code.

This privilege may be claimed under the same conditions as the official information privilege may be claimed, except that it does not apply if a person is called as a witness and asked if he is the informer. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1042. Adverse order or finding in certain cases

(a) Except where disclosure is forbidden by an act of the Congress of the United States, if a claim of privilege under this article by the state or a public entity in this state is sustained in a criminal proceeding, the presiding officer shall make such order or finding of fact adverse to the public entity bringing the proceeding as is required by law upon any issue in the proceeding to which the privileged information is material.

(b) Notwithstanding subdivision (a), where a search is made pursuant to a warrant valid on its face, the public entity bringing a criminal proceeding is not required to reveal to the defendant official information or the identity of an informer in order to establish the legality of the search or the admissibility of any evidence obtained as a result of it.

(c) Notwithstanding subdivision (a), in any preliminary hearing, criminal trial, or other criminal proceeding, any otherwise admissible evidence of information communicated to a peace officer by a confidential informant, who is not a material witness to the guilt or innocence of the accused of the offense charged, is admissible on the issue of reasonable cause to make an arrest or search without requiring that the name or identity of the informant be disclosed if the judge or magistrate is satisfied, based upon evidence produced in open court, out of the presence of the jury, that such information was received from a reliable informant and in his discretion does not require such disclosure.

(d) When, in any such criminal proceeding, a party demands disclosure of the identity of the informant on the ground the informant is a material witness on the issue of guilt, the court shall conduct a hearing at which all parties may present evidence on the issue of disclosure. Such hearing shall be conducted outside the presence of the jury, if any. During the hearing, if the privilege provided for in Section 1041 is claimed by a person authorized to do so or if a person who is authorized to claim such privilege refuses to answer any question on the ground that the answer would tend to disclose the identity of the informant, the prosecuting attorney may request that the court hold an in camera hearing. If such a request is made, the court shall hold such a hearing outside the presence of the defendant and his counsel. At the in camera hearing, the prosecution may offer evidence which would tend to disclose or which discloses the identity of the informant to aid the court in its determination whether there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial. A reporter shall be present at the in camera hearing. Any transcription of the proceedings at the in camera hearing, as well as any physical evidence presented at the hearing, shall be ordered sealed by the court, and only a court may have access to its contents. The court shall not order disclosure, nor strike the testimony of the witness who invokes the privilege, nor dismiss the criminal proceeding, if the party offering the witness refuses to disclose the identity of the informant, unless, based upon the evidence presented at the hearing held in the presence of the defendant and his counsel and the evidence presented at the in camera hearing, the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Section 1042 provides special rules regarding the consequences of invocation of the privileges provided in this article by the prosecution in a criminal proceeding.

Subdivision (a). This subdivision recognizes the existing California rule in a criminal case. As was stated by the United States Supreme Court in United States v. Reynolds, 345 U.S. 1, 12 (1953), "since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense." This policy applies if either the official information privilege (Section 1040) or the informer privilege (Section 1041) is exercised in a criminal proceeding.

In some cases, the privileged information will be material to the issue of the defendant's guilt or innocence; in such cases, the law requires that the court dismiss the case if the public entity does not reveal the information. People v. McShann, 50 Cal.2d 802, 330 P.2d 33 (1958). In other cases, the privileged information will relate to narrower issues, such as the legality of a search without a warrant; in those cases, the law requires that the court strike the testimony of a particular witness or make some other order appropriate under the circumstances if the public entity insists upon its privilege. Priestly v. Superior Court, 50 Cal.2d 812, 330 P.2d 39 (1958).

In cases where the legality of an arrest is in issue, Section 1042 does not require disclosure of the privileged information if there was reasonable cause for the arrest aside from the privileged information, for in such a case the identity of the informer is immaterial. Cf. People v. Hunt, 216 Cal.App.2d 753, 756–757, 31 Cal.Rptr. 221, 223 (1963) ("The rule requiring disclosure of an informer's identity has no application in situations where reasonable cause for arrest and search exists aside from the informer's communication.")

Subdivision (a) applies only if the privilege is asserted by the State of California or a public entity in the State of California. Subdivision (a) does not require the imposition of its sanction if the privilege is invoked in an action prosecuted by the State and the information is withheld by the federal government or another state. Nor may the sanction be imposed where disclosure is forbidden by federal statute. In these respects, subdivision (a) states existing California law. People v. Parham, 60 Cal.2d 378, 33 Cal.Rptr. 497, 384 P.2d 1001 (1963) (prior statements of prosecution witnesses withheld by the Federal Bureau of Investigation); denial of motion to strike witnesses' testimony affirmed.

Subdivision (b). This subdivision codifies the rule declared in People v. Keener, 55 Cal.2d 714, 723, 12 Cal.Rptr. 859, 864, 361 P.2d 587, 592 (1961), in which the court held that "where a search is made pursuant to a warrant valid on its face, the prosecution is not required to reveal the identity of the informer in order to establish the legality of the search and the admissibility of the evidence obtained as a result of it." Subdivision (b), however, applies to all official information, not merely to the identity of an informer.

Subdivision (b) does not affect the rule that a defendant is entitled to know the identity of an informer in a case where the informer is a material witness with respect to facts directly relating to the defendant's guilt.

§ 1043. Peace officer personnel records; discovery or disclosure; procedure

(a) In any case in which discovery or disclosure is sought of peace officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code or information from those records, the party seeking the discovery or disclosure shall file a written motion with the appropriate court or administrative body upon written notice to the governmental agency which has custody and control of the records. The written notice shall be given at the times prescribed by subdivision (b) of Section 1005 of the Code of Civil Procedure. Upon receipt of the notice the governmental agency served shall immediately notify the individual whose records are sought.

(b) The motion shall include all of the following:

(1) Identification of the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, the peace officer whose records are sought, the governmental agency which has custody and control of the records, and the time and place at which the motion for discovery or disclosure shall be heard.

(2) A description of the type of records or information sought.

(3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.

(c) No hearing upon a motion for discovery or disclosure shall be held without full compliance with the notice provisions of this section except upon a showing by the moving party of good cause for noncompliance, or upon a waiver of the hearing by the governmental agency identified as having the records.

§ 1044. Medical or psychological history records; right of access

Nothing in this article shall be construed to affect the right of access to records of medical or psychological history where such access would otherwise be available under Section 996 or 1016.

§ 1045. Peace officers; access to records of complaints or discipline imposed; relevancy; protective orders

(a) Nothing in this article shall be construed to affect the right of access to records of complaints, or investigations of complaints, or discipline imposed as a result of such investigations, concerning an event or transaction in which the peace officer participated, or which he perceived, and pertaining to the manner in which he performed his duties, provided that such information is relevant to the subject matter involved in the pending litigation.

(b) In determining relevance the court shall examine the information in chambers in conformity with Section 915, and shall exclude from disclosure:

(1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction which is the subject of the litigation in aid of which discovery or disclosure is sought.

(2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code.

(3) Facts sought to be disclosed which are so remote as to make disclosure of little or no practical benefit.

(c) In determining relevance where the issue in litigation concerns the policies or pattern of conduct of the employing agency, the court shall consider whether the information sought may be obtained from order records maintained by the employing agency in the regular course of agency business which would not necessitate the disclosure of individual personnel records.

(d) Upon motion seasonably made by the governmental agency which has custody or control of the records to be examined or by the officer whose records are sought, and upon good cause showing the necessity thereof, the court may make any order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression.

(e) The court shall, in any case or proceeding permitting the disclosure or discovery of any peace officer records requested pursuant to Section 1043, order that the records disclosed or discovered may not be used for any purpose other than a court proceeding pursuant to applicable law.

§ 1046. Allegation of excessive force by peace officer during arrest; police arrest report

In any case, otherwise authorized by law, in which the party seeking disclosure is alleging excessive force by a peace officer in connection with the arrest of that party, the motion shall include a copy of the police report setting forth the circumstances under which the party was stopped and arrested.

§ 1047. Arrests; records of peace officers; exemption from disclosure

Records of peace officers, including supervisorial peace officers, who either were not present during the arrest or had no contact with the party seeking disclosure from the time of the arrest until the time of booking, shall not be subject to disclosure.

ARTICLE 10. POLITICAL VOTE

§ 1050. Privilege to protect secrecy of vote

If he claims the privilege, a person has a privilege to refuse to disclose the tenor of his vote at a public election where the voting is by secret ballot unless he voted illegally or he previously made an unprivileged disclosure of the tenor of his vote.

LAW REVISION COMMISSION COMMENT

Section 1050 declares existing law. The California cases declaring such a privilege have relied upon the provision of the Constitution that "secrecy in voting be preserved." Cal.Const., Art. II, § 5. See Bush v. Head, 154 Cal. 277, 97 Pac. 512 (1908); Smith v. Thomas, 121 Cal. 533, 54 Pac. 71 (1898). Since the policy of ballot secrecy extends only to legally cast ballots, the California cases—as well as Section 1050—recognize that there is no privilege as to the tenor of an illegal vote. Patterson v. Hanley, 136 Cal. 265, 68 Pac. 821 (1902). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

ARTICLE 11. TRADE SECRET

§ 1060. Privilege to protect trade secret

If he or his agent or employee claims the privilege, the owner of a trade secret has a privilege to refuse to disclose the secret, and to prevent another from disclosing it, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice.

LAW REVISION COMMISSION COMMENT

This privilege is granted so that secret information essential to the continued operation of a business or industry may be afforded some measure of protection against unnecessary disclosure. Thus, the privilege prevents the use of the witness' duty to testify as the means for injuring an otherwise profitable business where more important interests will not be jeopardized. See generally 8 Wigmore, Evidence § 2212(3) (McNaughton rev. 1961). Nevertheless, there are dangers in the recognition of such a privilege. Copyright and patent laws provide adequate protection for many of the matters that might otherwise be classified as trade secrets. Recognizing the privilege as to such information would serve only to hinder the courts in determining the truth without providing the owner of the secret any needed protection. Again, disclosure of the matters protected by the privilege may be essential to disclose unfair competition or fraud or to reveal the improper use of dangerous materials by the party asserting the privilege. Recognizing the privilege in such cases would amount to a legally sanctioned license to commit the wrongs complained of, for the wrongdoer would be privileged to withhold his wrongful conduct from legal scrutiny.

Therefore, the privilege exists under this section only if its application will not tend to conceal fraud or otherwise work injustice. The limits of the privilege are necessarily uncertain and will have to be worked out through judicial decisions.

Although no California case has been found holding evidence of a trade secret to be privileged, at least one California case has recognized that such a privilege may exist unless its holder has injured another and the disclosure of the secret is indispensable to the ascertainment of the truth and the ultimate determination of the rights of the parties. Willson v. Superior Court, 66 Cal.App. 275, 225 Pac. 881 (1924) (trade secret held not subject to privilege because of plaintiff's need for information to establish case against the person asserting the privilege). Indirect recognition of such a privilege has also been given in Code of Civil Procedure Section 2019, which provides that in discovery proceedings the court may make protective orders prohibiting inquiry into "secret processes, developments or research." [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1061. Procedure for assertion of trade secret privilege

(a) For purposes of this section, and Sections 1062 and 1063:

(1) "Trade secret" means "trade secret," as defined in subdivision (d) of Section 3426.1 of the Civil Code, or paragraph (9) of subdivision (a) of Section 499c of the Penal Code.

(2) "Article" means "article," as defined in paragraph (2) of subdivision (a) of Section 499c of the Penal Code.

(b) In addition to Section 1062, the following procedure shall apply whenever the owner of a trade secret wishes to assert his or her trade secret privilege, as provided in Section 1060, during a criminal proceeding:

(1) The owner of the trade secret shall file a motion for a protective order, or the People may file the motion on the owner's behalf and with the owner's permission. The motion shall include an affidavit based upon personal knowledge listing the affiant's qualifications to give an opinion concerning the trade secret at issue, identifying, without revealing, the alleged trade secret and articles which disclose the secret, and presenting evidence that the secret qualifies as a trade secret under either subdivision (d) of Section 3426.1 of the Civil Code or paragraph (9) of subdivision (a) of Section 499c of the Penal Code. The motion and affidavit shall be served on all parties in the proceeding.

(2) Any party in the proceeding may oppose the request for the protective order by submitting affidavits based upon the affiant's personal knowledge. The affidavits shall be filed under seal, but shall be provided to the owner of the trade secret and to all parties in the proceeding. Neither the owner of the trade secret nor any party in the proceeding may disclose the affidavit to persons other than to counsel of record without prior court approval.

(3) The movant shall, by a preponderance of the evidence, show that the issuance of a protective order is proper. The court may rule on the request without holding an evidentiary hearing. However, in its discretion, the court may choose to hold an in camera evidentiary hearing concerning disputed articles with only the owner of the trade secret, the People's representative, the defendant, and defendant's counsel present. If the court holds such a hearing, the parties' right to examine witnesses shall not be used to obtain discovery, but shall be directed solely toward the question of whether the alleged trade secret qualifies for protection.

(4) If the court finds that a trade secret may be disclosed during any criminal proceeding unless a protective order is issued and that the issuance of a protective order would not conceal a fraud or work an injustice, the court shall issue a protective order limiting the use and dissemination of the trade secret, including, but not limited to, articles disclosing that secret. The protective order may, in the court's discretion, include the following provisions:

(A) That the trade secret may be disseminated only to counsel for the parties, including their associate attorneys, paralegals, and investigators, and to law enforcement officials or clerical officials.

(B) That the defendant may view the secret only in the presence of his or her counsel, or if not in the presence of his or her counsel, at counsel's offices.

(C) That any party seeking to show the trade secret, or articles containing the trade secret, to any person not designated by the protective order shall first obtain court approval to do so:

(i) The court may require that the person receiving the trade secret do so only in the presence of counsel for the party requesting approval.

(ii) The court may require the person receiving the trade secret to sign a copy of the protective order and to agree to be bound by its terms. The order may include a provision recognizing the owner of the trade secret to be a third-party beneficiary of that agreement.

(iii) The court may require a party seeking disclosure to an expert to provide that expert's name, employment history, and any other relevant information to the court for examination. The court shall accept that information under seal, and the information shall not be disclosed by any court except upon termination of the action and upon a showing of good cause to believe the secret has been disseminated by a court-approved expert. The court shall evaluate the expert and determine whether the expert poses a discernible risk of disclosure. The court shall withhold approval if the expert's economic interests place the expert in a competitive position with the victim, unless no other experts are available. The court may interview the expert in camera in aid of its ruling. If the court rejects the expert, it shall state its reasons for doing so on the record and a transcript of those reasons shall be prepared and sealed.

(D) That no articles disclosing the trade secret shall be filed or otherwise made a part of the court record available to the public without approval of the court and prior notice to the owner of the secret. The owner of the secret may give either party permission to accept the notice on the owner's behalf.

(E) Other orders as the court deems necessary to protect the integrity of the trade secret.

(c) A ruling granting or denying a motion for a protective order filed pursuant to subdivision (b) shall not be construed as a determination that the alleged trade secret is or is not a trade secret as defined by subdivision (d) of Section 3426.1 of the Civil Code or paragraph (9) of subdivision (a) of Section 499c of the Penal Code. Such a ruling shall not have any effect on any civil litigation.

(d) A protective order entered by a municipal court pursuant to this section shall remain in effect in a superior court unless that order is amended or vacated for good cause shown.

(e) This section shall have prospective effect only and shall not operate to invalidate previously entered protective orders.

§ 1062. Exclusion of public from criminal proceeding; motion; contents; hearing; determination

(a) Notwithstanding any other provision of law, in a criminal case, the court, upon motion of the owner of a trade secret, or upon motion by the People with the consent of the owner, may exclude the public from any portion of a criminal proceeding where the proponent of closure has demonstrated a substantial probability that the trade secret would otherwise be disclosed to the public during that proceeding and a substantial probability that the disclosure would cause serious harm to the owner of the secret, and where the court finds that there is no overriding public interest in an open proceeding. No evidence, however, shall be excluded during a criminal proceeding pursuant to this section if it would conceal a fraud, work an injustice, or deprive the People or the defendant of a fair trial.

(b) The motion made pursuant to subdivision (a) shall identify, without revealing, the trade secrets which would otherwise be disclosed to the public. A showing made pursuant to subdivision (a) shall be made during an in camera hearing with only the owner of the trade secret, the People's representative, the defendant, and defendant's counsel present. A court reporter shall be present during the hearing. Any transcription of the proceedings at the in camera hearing, as well as any articles presented at that hearing, shall be ordered sealed by the court and only a court may allow access to its contents upon a showing of good cause. The court, in ruling upon the motion made pursuant to subdivision (a), may consider testimony presented or affidavits filed in any proceeding held in that action.

(c) If, after the in camera hearing described in subdivision (b), the court determines that exclusion of trade secret information from the public is appropriate, the court shall close only that portion of the criminal proceeding necessary to prevent disclosure of the trade secret. Before granting the motion, however, the court shall find and state for the record that the moving party has met its burden pursuant to subdivision (b), and that the closure of that portion of the proceeding will not deprive the People or the defendant of a fair trial.

(d) The owner of the trade secret, the People, or the defendant may seek relief from a ruling denying or granting closure by petitioning a higher court for extraordinary relief.

(e) Whenever the court closes a portion of a criminal proceeding pursuant to this section, a transcript of that closed proceeding shall be made available to the public as soon as practicable. The court shall redact any information qualifying as a trade secret before making that transcript available.

(f) The court, subject to Section 867 of the Penal Code, may allow witnesses who are bound by a protective order entered in the criminal proceeding protecting trade secrets, pursuant to Section 1061, to remain within the courtroom during the closed portion of the proceeding.

§ 1063. Sealing of articles protected by protective order; procedures

The following provisions shall govern requests to seal articles which are protected by a protective order entered pursuant to Evidence Code Section 1060 or 1061:

(a) The People shall request sealing of articles reasonably expected to be filed or admitted into evidence as follows:

(1) No less than 10 court days before trial, and no less than five court days before any other criminal proceeding, the People shall file with the court a list of all articles which the People reasonably expect to file with the court, or admit into evidence, under seal at that proceeding. That list shall be available to the public. The People may be relieved from providing timely notice upon showing that exigent circumstances prevent that notice.

(2) The court shall not allow the listed articles to be filed, admitted into evidence, or in any way made a part of the court record otherwise open to the public before holding a hearing to consider any objections to the People's request to seal the articles. The court at that hearing shall allow those objecting to the sealing to state their objections.

(3) After hearing any objections to sealing, the court shall conduct an in camera hearing with only the owner of the trade secret contained within those articles, the People's representative, defendant, and defendant's counsel present. The court shall review the articles sought to be sealed, evaluate objections to sealing, and determine whether the People have satisfied the constitutional standards governing public access to articles which are part of the judicial record. The court may consider testimony presented or affidavits filed in any proceeding held in that action. The People, defendant, and the owner of the trade secret may file affidavits based on the affiant's personal knowledge to be considered at that hearing. Those affidavits are to be sealed and not released to the public, but shall be made available to the parties. The court may rule on the request to seal without taking testimony. If the court takes testimony, examination of witnesses shall not be used to obtain discovery, but shall be directed solely toward whether sealing is appropriate.

(4) If the court finds that the movant has satisfied appropriate constitutional standards with respect to sealing particular articles, the court shall seal those articles if and when they are filed, admitted into evidence, or in any way made a part of the court record otherwise open to the public. The articles shall not be unsealed absent an order of a court upon a showing of good cause. Failure to examine the court file for notice of a request to seal shall not constitute good cause to consider objections to sealing.

(b) The following procedure shall apply to other articles made a part of the court record:

(1) Where any articles protected by a protective order entered pursuant to Section 1060 or 1061 are filed, admitted into evidence, or in any way made a part of the court record in such a way as to be otherwise open to the public, the People, a defendant, or the owner of a trade secret contained within those articles may request the court to seal those articles.

(2) The request to seal shall be made by noticed motion filed with the court. It may also be made orally in court at the time the articles are made a part of the court record. Where the request is made orally, the movant must file within 24 hours a written description of that request, including a list of the articles which are the subject of that request. These motions and lists shall be available to the public.

(3) The court shall promptly conduct hearings as provided in paragraphs (2), (3), and (4) of subdivision (a). The court shall, pending the hearings, seal those articles which are the subject of the request. Where a request to seal is made orally, the court may conduct hearings at the time the articles are made a part of the court record, but shall reconsider its ruling in light of additional objections made by objectors within two court days after the written record of the request to seal is made available to the public.

(4) Any articles sealed pursuant to these hearings shall not be unsealed absent an order of a court upon a showing of good cause. Failure to examine the court file for notice of a request to seal shall not constitute good cause to consider objections to sealing.

CHAPTER 5. IMMUNITY OF NEWSMAN FROM CITATION FOR CONTEMPT

§ 1070. Refusal to disclose news source

(a) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

(b) Nor can a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

(c) As used in this section, "unpublished information" includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.

DIVISION 9. EVIDENCE AFFECTED OR EXCLUDED BY EXTRINSIC POLICIES

CHAPTER 1. EVIDENCE OF CHARACTER, HABIT, OR CUSTOM

§ 1100. Manner of proof of character

Except as otherwise provided by statute, any otherwise admissible evidence (including evidence in the form of an opinion, evidence of reputation, and evidence of specific instances of such person's conduct) is admissible to prove a person's character or a trait of his character.

LAW REVISION COMMISSION COMMENT

Section 1100 states the kinds of evidence that may be used to prove a person's character or a trait of his character. The section makes it clear that reputation evidence, opinion evidence, and evidence of specific instances of conduct are admissible for this purpose.

Section 1100 is technically unnecessary because Section 351 declares that all relevant evidence is admissible. Hence, all of the evidence declared to be admissible by Section 1100 would be admissible anyway under the general provisions of Section 351. Section 1100 is included in the Evidence Code, however, to forestall the argument that Section 351 does not remove all judicially created restrictions on the kinds of evidence that may be used to prove character or a trait of character.

Subject to certain statutory restrictions, the character evidence described in Section 1100 is admissible under Section 351 whenever it is relevant. Evidence of a person's character or a trait of his character is relevant in three situations: (1) when offered on the issue of his credibility as a witness, (2) when offered as circumstantial evidence of his conduct in conformity with such character or trait of character, and (3) when his character or a trait of his character is an ultimate fact in dispute in the action.

Sections 786–790 establish restrictions that are applicable when character evidence is offered to attack or to support the credibility of a witness. See the Comments to Sections 787 and 788 for a discussion of the restrictions on the kinds of evidence admissible for this purpose.

Sections 1101–1104 substantially restrict the extent to which character evidence may be used as circumstantial evidence of conduct. See the Comments to those sections for a discussion of the restrictions on the kinds of evidence admissible for this purpose.

Section 1100 applies without restriction only when character or a trait of character is an ultimate fact in dispute in the action. As applied to this situation, Section 1100 is generally consistent with existing law, although the existing law is uncertain in some respects. Cases involving character as an ultimate issue have admitted opinion evidence (People v. Wade, 118 Cal. 672, 50 Pac. 841 (1897); People v. Samonset, 97 Cal. 448, 450, 32 Pac. 520, 521 (1893)), reputation evidence (Estate of Akers, 184 Cal. 514, 519–520, 194 Pac. 706, 708–709 (1920); People v. Samonset, supra), and evidence of specific acts (Guardianship of Wisdom, 146 Cal.App.2d 635, 304 P.2d 221 (1956); Currin v. Currin, 125 Cal.App.2d 644, 271 P.2d 61 (1954); Guardianship of Casad, 106 Cal.App.2d 134, 234 P.2d 647 (1951)). However, there are cases which exclude some kinds of evidence where particular traits are involved. For example, in cases involving the unfitness or incompetency of an employee, evidence of specific acts is admissible to prove such unfitness or incompetency, while evidence of reputation is not. E.g., Gier v. Los Angeles Consol. Elec. Ry., 108 Cal. 129, 41 Pac. 22 (1895). Section 1100 eliminates the uncertainties in existing law and makes admissible any evidence that is relevant to prove the character in issue. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1101. Evidence of character to prove conduct

(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.

(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.

(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.

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Section 1101 is concerned with evidence of a person's character (i.e., his propensity or disposition to engage in a certain type of conduct) that is offered as a basis for an inference that he behaved in conformity with that character on a particular occasion. Section 1101 is not concerned with evidence offered to prove a person's character when that character is itself in issue; the admissibility of character evidence offered for this purpose is determined under Sections 351 and 1100. Nor is Section 1101 concerned with evidence of character offered on the issue of the credibility of a witness; the admissibility of such evidence is determined under Section 786–790. See Evidence Code § 1101(c).

Civil cases. Section 1101 excludes evidence of character to prove conduct in a civil case for the following reasons. First, character evidence is of slight probative value and may be very prejudicial. Second, character evidence tends to distract the trier of fact from the main question of what actually happened on the particular occasion and permits the trier of fact to reward the good man and to punish the bad man because of their respective characters. Third, introduction of character evidence may result in confusion of issues and require extended collateral inquiry.

Section 1101 states the general rule recognized under existing law. Code Civ.Proc. § 2053 ("Evidence of the good character of a party is not admissible in a civil action...." (Section 2053 is superseded by various Evidence Code sections.)); Deevy v. Tassi, 21 Cal.2d 109, 130 P.2d 389 (1942) (assault; evidence of defendant's bad character for peace and quiet held inadmissible); Vance.v Richardson, 110 Cal. 414, 42 Pac. 909 (1895) (assault; evidence of defendant's good character for peace and quiet held inadmissible); Van Horn v. Van Horn, 5 Cal.App. 719, 91 Pac. 260 (1907) (divorce for adultery; evidence of defendant's and the nonparty-corespondent's good character held inadmissible). Under existing law, however, there may be an exception to this general rule. Existing law may permit evidence to be introduced of the unchaste character of a plaintiff to show the likelihood of her consent to an alleged rape. Valencia v. Milliken, 31 Cal.App. 533, 160 Pac. 1086 (1916) (civil action for rape; error, but nonprejudicial, to limit evidence of unchaste character of plaintiff to issue of damages). The Evidence Code has no such exception for civil cases. But see Evidence Code § 1103 (criminal cases).

Criminal cases. Section 1101 states the general rule that evidence of character to prove conduct is inadmissible in a criminal case. Sections 1102 and 1103 state exceptions to this general principle. See the Comment to Section 1102.

Evidence of misconduct to show fact other than character. Section 1101 does not prohibit the admission of evidence of misconduct when it is offered as evidence of some other fact in issue, such as motive, common scheme or plan, preparation, intent, knowledge, identity, or absence of mistake or accident. Subdivision (b) of Section 1101 makes this clear. This codifies existing law. People v. Lisenba, 14 Cal.2d 403, 94 P.2d 569 (1939) (prior crime admissible to show general criminal plan and absence of accident); People v. David, 12 Cal.2d 639, 86 P.2d 811 (1939) (prior robbery admissible to show defendant's sanity and ability to devise and execute deliberate plan); People v. Morani, 196 Cal. 154, 236 Pac. 135 (1925) (prior abortion admissible to show that operation was not performed in ignorance of effect and, hence, to show necessary intent). See discussion in California Criminal Law Practice 491–498 (Cal.Cont.Ed.Bar 1964). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1102. Opinion and reputation evidence of character of criminal defendant to prove conduct

In a criminal action, evidence of the defendant's character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is:

(a) Offered by the defendant to prove his conduct in conformity with such character or trait of character.

(b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a).

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Section 1102 and 1103 state exceptions (applicable only in criminal cases) to the general rule of Section 1101 that character evidence is not admissible to prove conduct in conformity with that character.

Sections 1102 and 1103 generally

Under Section 1102, the accused in a criminal case may introduce evidence of his good character to show his innocence of the alleged crime—provided that the character or trait of character to be shown is relevant to the charge made against him. This codifies existing law. People v. Chrisman, 135 Cal. 282, 67 Pac. 136 (1901). Sections 1101 and 1102 make it clear that the prosecution may not, on its own initiative, use character evidence to prove that the defendant had the disposition to commit the crime charged; but, if the defendant first introduces evidence of his good character to show the likelihood of innocence, the prosecution may meet his evidence by introducing evidence of the defendant's bad character to show the likelihood of guilt. This also codifies existing law. People v. Jones, 42 Cal.2d 219, 266 P.2d 38 (1954) (prosecution for sexual molestation of child; error to exclude expert psychiatric opinion that defendant was not a sexual psychopath); People v. Stewart, 28 Cal. 395 (1865) (murder prosecution; error to exclude evidence of defendant's good character for peace and quiet); People v. Hughes, 123 Cal.App.2d 767, 267 P.2d 376 (1954) (assault prosecution; evidence of defendant's violent nature held admissible after introduction of evidence showing his good character for peace and quiet). See California Criminal Law Practice 489–490 (Cal.Cont.Ed.Bar 1964).

Likewise, under Section 1103, the defendant may introduce evidence of the character of the victim of the crime where the conduct of the victim in conformity with his character would tend to exculpate the defendant; and, if the defendant introduces evidence of the bad character of the victim, the prosecution may introduce evidence of the victim's good character. This codifies existing law. People v. Hoffman, 195 Cal. 295, 311–312, 232 Pac. 974, 980 (1925) (murder prosecution; evidence of victim's good reputation for peace and quiet held inadmissible when defendant had not attacked reputation of victim); People v. Lamar, 148 Cal. 564, 83 Pac. 993 (1906) (murder prosecution; error to exclude evidence of victim's bad character for violence offered to prove victim was aggressor and defendant acted in self-defense); People v. Shea, 125 Cal. 151, 57 Pac. 885 (1899) (rape prosecution; error to exclude evidence of the prosecutrix's unchaste character offered to prove the likelihood of consent); People v. Fitch, 28 Cal.App.2d 31, 81 P.2d 1019 (1938) (murder prosecution; evidence of victim's good character for peace and quiet held admissible after defendant introduced evidence of victim's violent nature). See also Comment, 25 Cal.L.Rev. 459 (1937).

Thus, under Sections 1102 and 1103, the defendant in a criminal case is given the right to introduce character evidence that would be inadmissible in a civil case. However, evidence of the character of the defendant or the victim—though weak—may be enough to raise a reasonable doubt in the mind of the trier of fact concerning the defendant's guilt. And, since his life or liberty is at stake, the defendant should not be deprived of the right to introduce evidence even of such slight probative value.

Kinds of character evidence admissible to prove conduct under Sections 1102 and 1103.

The three kinds of evidence that might be offered to prove character as circumstantial evidence of conduct are: (1) evidence as to reputation, (2) opinion evidence as to character, and (3) evidence of specific acts indicating character. The admissibility of each of these kinds of evidence when character is sought to be proved as circumstantial evidence of conduct under Sections 1102 and 1103 is discussed below.

Reputation evidence. Reputation evidence is the ordinary means sanctioned by the cases for proving character as circumstantial evidence of conduct. Witkin, California Evidence § 125 (1958). See People v. Fair, 43 Cal. 137 (1872). Both Sections 1102 and 1103 codify the existing law permitting character to be proved by reputation.

Opinion evidence. There is recent authority for the admission of opinion evidence to prove character as circumstantial evidence of conduct. People v. Jones, 42 Cal.2d 219, 266 P.2d 38 (1954) (error to exclude expert psychiatric opinion that the defendant was not a sexual psychopath and, hence, unlikely to have violated Penal Code Section 288). However, opinion evidence generally has been held inadmissible. See People v. Spigno, 156 Cal.App.2d 279, 319 P.2d 458 (1957) (full discussion of the Jones case); California Criminal Law Practice 489–490 (Cal.Cont.Ed.Bar 1964).

The general rule under existing law excludes the most reliable form of character evidence and admits the least reliable. The opinions of those whose personal intimacy with a person gives them firsthand knowledge of that person's character are a far more reliable indication of that character than is reputation, which is little more than accumulated hearsay. See 7 Wigmore, Evidence § 1986 (3d ed. 1940). The danger of collateral issues seems no greater than that inherent in reputation evidence. Accordingly, both Section 1102 and Section 1103 permit character to be proved by opinion evidence.

Evidence of specific acts. Under existing law, the admissibility of evidence of specific acts to prove character as circumstantial evidence of conduct depends upon the nature of the conduct sought to be proved. Evidence of specific acts of the accused is excluded as a general rule in order to avoid the possibility of prejudice, undue confusion of the issues with collateral matters, unfair surprise, and the like. Thus, it is usually held that evidence of specific acts by the defendant is inadmissible to prove his guilt even though the defendant has opened the question by introducing evidence of his good character. See discussion in People v. Gin Shue, 58 Cal.App.2d 625, 634, 137 P.2d 742, 747–748 (1943). On the other hand, it is well settled that in a rape case the defendant may show the unchaste character of the prosecutrix by evidence of prior voluntary intercourse in order to indicate the unlikelihood of resistance on the occasion in question. People v. Shea, 125 Cal. 151, 57 Pac. 885 (1899); People v. Benson, 6 Cal. 221 (1856); People v. Battilana, 52 Cal.App.2d 685, 126 P.2d 923 (1942). However, in a homicide or assault case where the defense is self-defense, evidence of specific acts of violence by the victim is inadmissible to prove his violent nature (and, hence, that the victim was the aggressor) unless the prior acts were directed against the defendant himself. People v. Yokum, 145 Cal.App.2d 245, 302 P.2d 406 (1956); People v. Soules, 41 Cal.App.2d 298, 106 P.2d 639 (1940). But see People v. Carmichael, 198 Cal. 534, 548, 246 Pac. 62, 68 (1926) (if defendant had knowledge of victim's statement evidencing violent nature, the "statement was material and might have had an important bearing upon his plea of self-defense"); People v. Swigart, 80 Cal.App. 31, 251 Pac. 343 (1926). See also Comment, 25 Cal.L.Rev. 459, 466–469 (1937).

Section 1102 codifies the general rule under existing law which precludes evidence of specific acts of the defendant to prove character as circumstantial evidence of his innocence or of his disposition to commit the crime with which he is charged.

Section 1103 permits both the defendant and the prosecution to use evidence of specific acts of the victim of the crime to prove the victim's character as circumstantial evidence of his conduct. In this respect, the section harmonizes conflicting rules found in existing law. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1103. Character evidence of crime victim to prove conduct; evidence of defendant's character or trait for violence; evidence of manner of dress of victim; evidence of complaining witness' sexual conduct

(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is:

(1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.

(2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1).

(b) In a criminal action, evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).

(c) (1) Notwithstanding any other provision of this code to the contrary, and except as provided in this subdivision, in any prosecution under Section 261, 262, or 264.1 of the Penal Code, or under Section 286, 288a, or 289 of the Penal Code, or for assault with intent to commit, attempt to commit, or conspiracy to commit a crime defined in any of those sections, except where the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4, or in a state prison, as defined in Section 4504, opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness' sexual conduct, or any of that evidence, is not admissible by the defendant in order to prove consent by the complaining witness.

(2) Notwithstanding paragraph (3), evidence of the manner in which the victim was dressed at the time of the commission of the offense shall not be admissible when offered by either party on the issue of consent in any prosecution for an offense specified in paragraph (1), unless the evidence is determined by the court to be relevant and admissible in the interests of justice. The proponent of the evidence shall make an offer of proof outside the hearing of the jury. The court shall then make its determination and at that time, state the reasons for its ruling on the record. For the purposes of this paragraph, "manner of dress" does not include the condition of the victim's clothing before, during, or after the commission of the offense.

(3) Paragraph (1) shall not be applicable to evidence of the complaining witness' sexual conduct with the defendant.

(4) If the prosecutor introduces evidence, including testimony of a witness, or the complaining witness as a witness gives testimony, and that evidence or testimony relates to the complaining witness' sexual conduct, the defendant may cross-examine the witness who gives the testimony and offer relevant evidence limited specifically to the rebuttal of the evidence introduced by the prosecutor or given by the complaining witness.

(5) Nothing in this subdivision shall be construed to make inadmissible any evidence offered to attack the credibility of the complaining witness as provided in Section 782.

(6) As used in this section, "complaining witness" means the alleged victim of the crime charged, the prosecution of which is subject to this subdivision.

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See the Comment to Section 1102. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1104. Character trait for care or skill

Except as provided in Sections 1102 and 1103, evidence of a trait of a person's character with respect to care or skill is inadmissible to prove the quality of his conduct on a specified occasion.

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Section 1104 places a further limitation on the use of character evidence. Under Section 1104, character evidence with respect to care or skill is inadmissible to prove that conduct on a specific occasion was either careless or careful, skilled or unskilled, except to the extent permitted by Sections 1102 and 1103.

Section 1104 codifies well-settled California law. Towle v. Pacific Improvement Co., 98 Cal. 342, 33 Pac. 207 (1893). The purpose of the rule is to prevent collateral issues from consuming too much time and distracting the attention of the trier of fact from what was actually done on the particular occasion. Here, the slight probative value of the evidence balanced against the danger of confusion of issues, collateral inquiry, prejudice, and the like, warrants a fixed exclusionary rule. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1105. Habit or custom to prove specific behavior

Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.

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Section 1105, like Section 1100, declares that certain evidence is admissible. Hence, Section 1105 is technically unnecessary because Section 351 declares that all relevant evidence is admissible. Nonetheless, Section 1105 is desirable to assure that evidence of custom or habit (a regular response to a repeated specific situation) is admissible even where evidence of a person's character (his general disposition or propensity to engage in a certain type of conduct) is inadmissible.

The admissibility of habit evidence to prove conduct in conformity with the habit has long been established in California. Wallis v. Southern Pac. Co., 184 Cal. 662, 195 Pac. 408 (1921) (distinguishing cases holding character evidence as to care or skill inadmissible); Craven v. Central Pac. R.R., 72 Cal. 345, 13 Pac. 878 (1887). The admissibility of evidence of the custom of a business or occupation is also well established. Hughes v. Pacific Wharf & Storage Co., 188 Cal. 210, 205 Pac. 105 (1922) (mailing letter). However, under existing law, evidence of habit is admissible only if there are no eyewitnesses. Boone v. Bank of America, 220 Cal. 93, 29 P.2d 409 (1934). In earlier cases, the Supreme Court criticized the "no eyewitness" limitation:

This limitation upon the introduction of such testimony seems rather illogical. If the fact of the existence of habits of caution in a given particular has any legitimate evidentiary weight, the party benefited ought to have the advantage of it for whatever it is worth, even against adverse eye-witnesses; and if the testimony of the eye-witnesses is in his favor, it would be at least a harmless cumulation of evidence to permit testimony of his custom or habit. [Wallis v. Southern Pac. Co., 184 Cal. 662, 665, 195 Pac. 408, 409 (1921).]

The "no eyewitness" limitation is undesirable. Eyewitnesses frequently are mistaken, and some are dishonest. The trier of fact should be entitled to weigh the habit evidence against the eyewitness testimony as well as all of the other evidence in the case. Hence, Section 1105 does not contain the "no eyewitness" limitation. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1106. Sexual harassment, sexual assault, or sexual battery cases; opinion or reputation evidence of plaintiff's sexual conduct; inadmissibility; exception; cross-examination

(a) In any civil action alleging conduct which constitutes sexual harassment, sexual assault, or sexual battery, opinion evidence, reputation evidence, and evidence of specific instances of plaintiff's sexual conduct, or any of such evidence, is not admissible by the defendant in order to prove consent by the plaintiff or the absence of injury to the plaintiff, unless the injury alleged by the plaintiff is in the nature of loss of consortium.

(b) Subdivision (a) shall not be applicable to evidence of the plaintiff's sexual conduct with the alleged perpetrator.

(c) If the plaintiff introduces evidence, including testimony of a witness, or the plaintiff as a witness gives testimony, and the evidence or testimony relates to the plaintiff's sexual conduct, the defendant may cross-examine the witness who gives the testimony and offer relevant evidence limited specifically to the rebuttal of the evidence introduced by the plaintiff or given by the plaintiff.

(d) Nothing in this section shall be construed to make inadmissible any evidence offered to attack the credibility of the plaintiff as provided in Section 783.

§ 1107. Intimate partner battering and its effects; expert testimony in criminal actions; sufficiency of foundation; abuse and domestic violence; applicability to Penal Code; impact on decisional law

(a) In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge.

(b) The foundation shall be sufficient for admission of this expert testimony if the proponent of the evidence establishes its relevancy and the proper qualifications of the expert witness. Expert opinion testimony on intimate partner battering and its effects shall not be considered a new scientific technique whose reliability is unproven.

(c) For purposes of this section, "abuse" is defined in Section 6203 of the Family Code and "domestic violence" is defined in Section 6211 of the Family Code and may include acts defined in Section 242, subdivision (e) of Section 243, Section 262, 273.5, 273.6, 422 or 653m of the Penal Code.

(d) This section is intended as a rule of evidence only and no substantive change affecting the Penal Code is intended.

(e) This section shall be known, and may be cited as, the Expect Witness Testimony on Intimate Partner Battering and its Effects Section of the Evidence Code.

(f) The changes in this section that become effective on January 1, 2005, are not intended to impact any existing decisional law regarding this section, and that decisional law should apply equally to this section as it refers to "intimate partner battering and its effects" in place of "battered women's syndrome."

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1992 Amendment (Revised Comment)

Subdivision (c) of Section 1107 is amended to substitute references to the provisions of the Family Code that replaced the relevant provisions of former Code of Civil Procedure Section 542. [23 Cal.L.Rev.Comm. Reports 1 (1993)]

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1992 Amendment (Revised Comment)

Subdivision (c) of Section 1107 is amended to substitute references to the provisions of the Family Code that replaced the relevant provisions of former Code of Civil Procedure Section 542. [23 Cal.L.Rev.Comm. Reports 1 (1993)]

§ 1108. Evidence of another sexual offense by defendant; disclosure; construction of section

(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.

(b) In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least 30 days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c) This section shall not be construed to limit the admission or consideration of evidence under any other section of this code.

(d) As used in this section, the following definitions shall apply:

(1) "Sexual offense" means a crime under the law of a state or of the United States that involves any of the following:

(A) Any conduct proscribed by Section 243.4, 261, 261.5, 262, 264.1, 266c, 286, 288, 288a, 288.2, 288.5, or 289, or subdivision (b), (c), or (d) of Section 311.2 or Section 311.3, 311.4, 311.10, 311.11, 314, or 647.6, of the Penal Code.

(B) Contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person.

(C) Contact, without consent, between the genitals or anus of the defendant and any part of another person's body.

(D) Deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person.

(E) An attempt or conspiracy to engage in conduct described in this paragraph.

(2) "Consent" shall have the same meaning as provided in Section 261.6 of the Penal Code, except that it does not include consent which is legally ineffective because of the age, mental disorder, or developmental or physical disability of the victim.

§ 1109. Evidence of defendant's other acts of domestic violence

(a)(1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.

(2) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving abuse of an elder or dependent person, evidence of the defendant's commission of other abuse of an elder or dependent person is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.

(3) Except as provided in subdivision (e) or (f) and subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, in a criminal action in which the defendant is accused of an offense involving child abuse, evidence of the defendant's commission of child abuse is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. Nothing in this paragraph prohibits or limits the admission of evidence pursuant to subdivision (b) of Section 1101.

(b) In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, in compliance with the provisions of Section 1054.7 of the Penal Code.

(c) This section shall not be construed to limit or preclude the admission or consideration of evidence under any other statute or case law.

(d) As used in this section:

(1) "Abuse of an elder or dependent person" means physical or sexual abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment that results in physical harm, pain, or mental suffering, the deprivation of care by a caregiver, or other deprivation by a custodian or provider of goods or services that are necessary to avoid physical harm or mental suffering.

(2) "Child abuse" means an act proscribed by Section 273d of the Penal Code.

(3) "Domestic violence" has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, "domestic violence" has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense.

(e) Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice.

(f) Evidence of the findings and determinations of administrative agencies regulating the conduct of health facilities licensed under Section 1250 of the Health and Safety Code is inadmissible under this section.

CHAPTER 2. MEDIATION

§ 1115. Definitions

For purposes of this chapter:

(a) "Mediation" means a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.

(b) "Mediator" means a neutral person who conducts a mediation. "Mediator" includes any person designated by a mediator either to assist in the mediation or to communicate with the participants in preparation for a mediation.

(c) "Mediation consultation" means a communication between a person and a mediator for the purpose of initiating, considering, or reconvening a mediation or retaining the mediator.

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1997 Addition

Subdivision (a) of Section 1115 is drawn from Code of Civil Procedure Section 1775.1. To accommodate a wide range of mediation styles, the definition is broad, without specific limitations on format. For example, it would include a mediation conducted as a number of sessions, only some of which involve the mediator. The definition focuses on the nature of a proceeding, not its label. A proceeding may be a "mediation" for purposes of this chapter, even though it is denominated differently.

Under subdivision (b), a mediator must be neutral. The neutrality requirement is drawn from Code of Civil Procedure Section 1775.1. An attorney or other representative of a party is not neutral and so does not qualify as a "mediator" for purposes of this chapter.

A "mediator" may be an individual, group of individuals, or entity. See Section 175 ("person" defined). See also Section 10 (singular includes the plural). This definition of mediator encompasses not only the neutral person who takes the lead in conducting a mediation, but also any neutral who assists in the mediation, such as a case-developer, interpreter, or secretary. The definition focuses on a person's role, not the person's title. A person may be a "mediator" under this chapter even though the person has a different title, such as "ombudsperson." Any person who meets the definition of "mediator" must comply with Section 1121 (mediator reports and communications), which generally prohibits a mediator from reporting to a court or other tribunal concerning the mediated dispute.

Subdivision (c) is drawn from former Section 1152.5, which was amended in 1996 to explicitly protect mediation intake communications. See 1996 Cal. Stat. ch. 174, § 1. Subdivision (c) is not limited to communications to retain a mediator. It also encompasses contacts concerning whether to mediate, such as where a mediator contacts a disputant because another disputant desires to mediate, and contacts concerning initiation or recommencement of mediation, such as where a case-developer meets with a disputant before mediation.

For the scope of this chapter, see Section 1117. [1997–98 Annual Report, 27 Cal.L.Rev.Comm. Reports App. 5 (1997)]

§ 1116. Effect of chapter

(a) Nothing in this chapter expands or limits a court's authority to order participation in a dispute resolution proceeding. Nothing in this chapter authorizes or affects the enforceability of a contract clause in which parties agree to the use of mediation.

(b) Nothing in this chapter makes admissible evidence that is inadmissible under Section 1152 or any other statute.

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1997 Addition

Subdivision (a) of Section 1116 establishes guiding principles for applying this chapter.

Subdivision (b) continues the first sentence of former Section 1152.5(c) without substantive change. [1997–98 Annual Report, 27 Cal.L.Rev.Comm. Reports App. 5 (1997)]

§ 1117. Application of chapter

(a) Except as provided in subdivision (b), this chapter applies to a mediation as defined in Section 1115.

(b) This chapter does not apply to either of the following:

(1) A proceeding under Part 1 (commencing with Section 1800) of Division 5 of the Family Code or Chapter 11 (commencing with Section 3160) of Part 2 of Division 8 of the Family Code.

(2) A settlement conference pursuant to Rule 3.1380 of the California Rules of Court.

(Added by Stats.1997, c. 772 (A.B.939), § 3.)

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1997 Addition

Under subdivision (a) of Section 1117, mediation confidentiality and the other safeguards of this chapter apply to a broad range of mediations. See Section 1115 Comment.

Subdivision (b) sets forth two exceptions. Section 1117(b)(1) continues without substantive change former Section 1152.5(b). Special confidentiality rules apply to a proceeding in family conciliation court or a mediation of child custody or visitation issues. See Section 1040; Fam. Code §§ 1818, 3177.

Section 1117(b)(2) establishes that a court settlement conference is not a mediation within the scope of this chapter. A settlement conference is conducted under the aura of the court and is subject to special rules. [1997–98 Annual Report, 27 Cal.L.Rev.Comm. Reports App. 5 (1997)]

§ 1118. Oral agreements

An oral agreement "in accordance with Section 1118" means an oral agreement that satisfies all of the following conditions:

(a) The oral agreement is recorded by a court reporter or reliable means of audio recording.

(b) The terms of the oral agreement are recited on the record in the presence of the parties and the mediator, and the parties express on the record that they agree to the terms recited.

(c) The parties to the oral agreement expressly state on the record that the agreement is enforceable or binding or words to that effect.

(d) The recording is reduced to writing and the writing is signed by the parties within 72 hours after it is recorded.

(Added by Stats.1997, c. 772 (A.B.939), § 3.)

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1997 Addition

Section 1118 establishes a procedure for orally memorializing an agreement, in the interest of efficiency. Provisions permitting use of that procedure for certain purposes include Sections 1121 (mediator reports and communications), 1122 (disclosure by agreement), 1123 (written settlement agreements reached through mediation), and 1124 (oral agreements reached through mediation). See also Section 1125 (when mediation ends). For guidance on authority to bind a litigant, see Williams v. Saunders, 55 Cal. App. 4th 1158, 64 Cal. Rptr. 2d 571 (1997) ("The litigants' direct participation tends to ensure that the settlement is the result of their mature reflection and deliberate assent.") [1997–98 Annual Report, 27 Cal.L.Rev.Comm. Reports App. 5 (1997)]

§ 1119. Written or oral communications during mediation process; admissibility

Except as otherwise provided in this chapter:

(a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(b) No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.

(Added by Stats.1997, c. 772 (A.B.939), § 3.)

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1997 Addition

Subdivision (a) of Section 1119 continues without substantive change former Section 1152.5(a)(1), except that its protection explicitly applies in a subsequent arbitration or administrative adjudication, as well as in any civil action or proceeding. See Section 120 ("civil action" includes civil proceedings). In addition, the protection of Section 1119(a) extends to oral communications made for the purpose of or pursuant to a mediation, not just oral communications made in the course of the mediation.

Subdivision (b) continues without substantive change former Section 1152.5(a)(2), except that its protection explicitly applies in a subsequent arbitration or administrative adjudication, as well as in any civil action or proceeding. See Section 120 ("civil action" includes civil proceedings). In addition, subdivision (b) expressly encompasses any type of "writing" as defined in Section 250, regardless of whether the representations are on paper or on some other medium.

Subdivision (c) continues former Section 1152.5(a)(3) without substantive change. A mediation is confidential notwithstanding the presence of an observer, such as a person evaluating or training the mediator or studying the mediation process.

See Sections 1115(a) ("mediation" defined), 1115(c) ("mediation consultation" defined). See also Section 703.5 (testimony by a judge, arbitrator, or mediator).

For examples of specialized mediation confidentiality provisions, see Bus. & Prof. Code §§ 467.4–467.5 (community dispute resolution programs), 6200 (attorney-client fee disputes); Code Civ. Proc. §§ 1297.371 (international commercial disputes), 1775.10 (civil action mediation in participating courts); Fam. Code §§ 1818 (family conciliation court), 3177 (child custody); Food & Agric. Code § 54453 (agricultural cooperative bargaining associations); Gov't Code §§ 11420.20–11420.30 (administrative adjudication), 12984–12985 (housing discrimination), 66032–66033 (land use); Ins. Code § 10089.80 (earthquake insurance); Lab. Code § 65 (labor disputes); Welf. & Inst. Code § 350 (dependency mediation). See also Cal. Const. art. I, § 1 (right to privacy); Garstang v. Superior Court, 39 Cal. App. 4th 526, 46 Cal. Rptr. 2d 84, 88 (1995) (constitutional right of privacy protected communications made during mediation sessions before an ombudsperson). [1997–98 Annual Report, 27 Cal.L.Rev.Comm. Reports App. 5 (1997)]

§ 1120. Evidence otherwise admissible

(a) Evidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or a mediation consultation.

(b) This chapter does not limit any of the following:

(1) The admissibility of an agreement to mediate a dispute.

(2) The effect of an agreement not to take a default or an agreement to extend the time within which to act or refrain from acting in a pending civil action.

(3) Disclosure of the mere fact that a mediator has served, is serving, will serve, or was contacted about serving as a mediator in a dispute.

LAW REVISION COMMISSION COMMENTS

1997 Addition

Subdivision (a) of Section 1120 continues former Section 1152.5(a)(6) without change. It limits the scope of Section 1119 (mediation confidentiality), preventing parties from using a mediation as a pretext to shield materials from disclosure.

Subdivision (b)(1) makes explicit that Section 1119 does not restrict admissibility of an agreement to mediate. Subdivision (b)(2) continues former Section 1152.5(e) without substantive change, but also includes an express exception for extensions of litigation deadlines. Subdivision (b)(3) makes clear that Section 1119 does not preclude a disputant from obtaining basic information about a mediator's track record, which may be significant in selecting an impartial mediator. Similarly, mediation participants may express their views on a mediator's performance, so long as they do not disclose anything said or done at the mediation.

See Sections 1115(a) ("mediation" defined), 1115(b) ("mediator" defined), 1115(c) ("mediation consultation" defined). [1997–98 Annual Report, 27 Cal.L.Rev.Comm. Reports App. 5 (1997)]

§ 1121. Mediator's reports and findings

Neither a mediator nor anyone else may submit to a court or other adjudicative body, and a court or other adjudicative body may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator concerning a mediation conducted by the mediator, other than a report that is mandated by court rule or other law and that states only whether an agreement was reached, unless all parties to the mediation expressly agree otherwise in writing, or orally in accordance with Section 1118.

LAW REVISION COMMISSION COMMENTS

1997 Addition

Section 1121 continues the first sentence of former Section 1152.6 without substantive change, except to make clear that (1) the section applies to all submissions, not just filings, (2) the section is not limited to court proceedings but rather applies to all types of adjudications, including arbitrations and administrative adjudications, (3) the section applies to any report or statement of opinion, however denominated, and (4) neither a mediator nor anyone else may submit the prohibited information. The section does not prohibit a mediator from providing a mediation participant with feedback on the dispute in the course of the mediation.

Rather, the focus is on preventing coercion. As Section 1121 recognizes, a mediator should not be able to influence the result of a mediation or adjudication by reporting or threatening to report to the decisionmaker on the merits of the dispute or reasons why mediation failed to resolve it. Similarly, a mediator should not have authority to resolve or decide the mediated dispute, and should not have any function for the adjudicating tribunal with regard to the dispute, except as a non-decisionmaking neutral. See Section 1117 (scope of chapter), which excludes settlement conferences from this chapter.

The exception to Section 1121 (permitting submission and consideration of a mediator's report where "all parties to the mediation expressly agree" in writing) is modified to allow use of the oral procedure in Section 1118 (recorded oral agreement) and to permit making of the agreement at any time, not just before the mediation. A mediator's report to a court may disclose mediation communications only if all parties to the mediation agree to the reporting and all persons who participate in the mediation agree to the disclosure. See Section 1122 (disclosure by agreement).

The second sentence of former Section 1152.6 is continued without substantive change in Section 1117 (scope of chapter), except that Section 1117 excludes proceedings under Part 1 (commencing with Section 1800) of Division 5 of the Family Code, as well as proceedings under Chapter 11 (commencing with Section 3160) of Part 2 of Division 8 of the Family Code.

See Sections 1115(a) ("mediation" defined), 1115(b) ("mediator" defined). See also Sections 703.5 (testimony by a judge, arbitrator, or mediator), 1127 (attorney's fees), 1128 (irregularity in proceedings). [1997–98 Annual Report, 27 Cal.L.Rev.Comm. Reports App. 5 (1997)]

§ 1122. Communications or writings; conditions to admissibility

(a) A communication or a writing, as defined in Section 250, that is made or prepared for the purpose of, or in the course of, or pursuant to, a mediation or a mediation consultation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if either of the following conditions is satisfied:

(1) All persons who conduct or otherwise participate in the mediation expressly agree in writing, or orally in accordance with Section 1118, to disclosure of the communication, document, or writing.

(2) The communication, document, or writing was prepared by or on behalf of fewer than all the mediation participants, those participants expressly agree in writing, or orally in accordance with Section 1118, to its disclosure, and the communication, document, or writing does not disclose anything said or done or any admission made in the course of the mediation.

(b) For purposes of subdivision (a), if the neutral person who conducts a mediation expressly agrees to disclosure, that agreement also binds any other person described in subdivision (b) of Section 1115.

LAW REVISION COMMISSION COMMENTS

1997 Addition

Section 1122 supersedes former Section 1152.5(a)(4) and part of former Section 1152.5(a)(2), which were unclear regarding precisely whose agreement was required for admissibility or disclosure of mediation communications and documents.

Subdivision (a)(1) states the general rule that mediation documents and communications may be admitted or disclosed only upon agreement of all participants, including not only parties but also the mediator and other nonparties attending the mediation (e.g., a disputant not involved in litigation, a spouse, an accountant, an insurance representative, or an employee of a corporate affiliate). Agreement must be express, not implied. For example, parties cannot be deemed to have agreed in advance to disclosure merely because they agreed to participate in a particular dispute resolution program.

Subdivision (a)(2) facilitates admissibility and disclosure of unilaterally prepared materials, but it only applies so long as those materials may be produced in a manner revealing nothing about the mediation discussion. Materials that necessarily disclose mediation communications may be admitted or disclosed only upon satisfying the general rule of subdivision (a)(1).

Mediation materials that satisfy the requirements of subdivisions (a)(1) or (a)(2) are not necessarily admissible or subject to disclosure. Although the provisions on mediation confidentiality do not bar admissibility or disclosure, there may be other bases for exclusion.

Subdivision (b) makes clear that if the person who takes the lead in conducting a mediation agrees to disclosure, it is unnecessary to seek out and obtain assent from each assistant to that person, such as a case developer, interpreter, or secretary.

For exceptions to Section 1122, see Sections 1123 (written settlement agreements reached through mediation) and 1124 (oral agreements reached through mediation) & Comments.

See Section 1115(a) ("mediation" defined), 1115(c) ("mediation consultation" defined). See also Sections 703.5 (testimony by a judge, arbitrator, or mediator), 1119 (mediation confidentiality), 1121 (mediator reports and communications). [1997–98 Annual Report, 27 Cal.L.Rev.Comm. Reports App. 5 (1997)]

§ 1123. Written settlement agreements; conditions to admissibility

A written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if the agreement is signed by the settling parties and any of the following conditions are satisfied:

(a) The agreement provides that it is admissible or subject to disclosure, or words to that effect.

(b) The agreement provides that it is enforceable or binding or words to that effect.

(c) All parties to the agreement expressly agree in writing, or orally in accordance with Section 1118, to its disclosure.

(d) The agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute.

LAW REVISION COMMISSION COMMENTS

1997 Addition

Section 1123 consolidates and clarifies provisions governing written settlements reached through mediation. For guidance on binding a disputant to a written settlement agreement, see Williams v. Saunders, 55 Cal. App. 4th 1158, 64 Cal. Rptr. 2d 571 (1997) ("The litigants' direct participation tends to ensure that the settlement is the result of their mature reflection and deliberate assent.").

As to an executed written settlement agreement, subdivision (a) continues part of former Section 1152.5(a)(2). See also Ryan v. Garcia, 27 Cal. App. 4th 1006, 1012, 33 Cal. Rptr. 2d 158, 162 (1994) (Section 1152.5 "provides a simple means by which settlement agreements executed during mediation can be made admissible in later proceedings," i.e., the "parties may consent, as part of a writing, to subsequent admissibility of the agreement").

Subdivision (b) is new. It is added due to the likelihood that parties intending to be bound will use words to that effect, rather than saying their agreement is intended to be admissible or subject to disclosure.

As to fully executed written settlement agreements, subdivision (c) supersedes former Section 1152.5(a)(4). To facilitate enforceability of such agreements, disclosure pursuant to subdivision (c) requires only agreement of the parties. Agreement of the mediator and other mediation participants is not necessary. Subdivision (c) is thus an exception to the general rule governing disclosure of mediation communications by agreement. See Section 1122.

Subdivision (d) continues former Section 1152.5(a)(5) without substantive change.

A written settlement agreement that satisfies the requirements of subdivision (a), (b), (c), or (d) is not necessarily admissible or subject to disclosure. Although the provisions on mediation confidentiality do not bar admissibility or disclosure, there may be other bases for exclusion.

See Section 1115(a) ("mediation" defined). [1997–98 Annual Report, 27 Cal.L.Rev.Comm. Reports App. 5 (1997)]

§ 1124. Oral agreements; conditions to admissibility

An oral agreement made in the course of, or pursuant to, a mediation is not made inadmissible, or protected from disclosure, by the provisions of this chapter if any of the following conditions are satisfied:

(a) The agreement is in accordance with Section 1118.

(b) The agreement is in accordance with subdivisions (a), (b), and (d) of Section 1118, and all parties to the agreement expressly agree, in writing or orally in accordance with Section 1118, to disclosure of the agreement.

(c) The agreement is in accordance with subdivisions (a), (b), and (d) of Section 1118, and the agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute.

LAW REVISION COMMISSION COMMENTS

1997 Addition

Section 1124 sets forth specific circumstances under which mediation confidentiality is inapplicable to an oral agreement reached through mediation. Except in those circumstances, Sections 1119 (mediation confidentiality) and 1124 codify the rule of Ryan v. Garcia, 27 Cal. App. 4th 1006, 33 Cal. Rptr. 2d 158 (1994) (mediation confidentiality applies to oral statement of settlement terms), and reject the contrary approach of Regents of University of California v. Sumner, 42 Cal. App. 4th 1209, 50 Cal. Rptr. 2d 200 (1996) (mediation confidentiality does not protect oral statement of settlement terms).

Subdivision (a) of Section 1124 facilitates enforcement of an oral agreement that is recorded and memorialized in writing in accordance with Section 1118. For guidance in applying subdivision (a), see Section 1125 (when mediation ends) & Comment.

Subdivision (b) parallels Section 1123(c).

Subdivision (c) parallels Section 1123(d).

An oral agreement that satisfies the requirements of subdivision (a), (b), or (c) is not necessarily admissible or subject to disclosure. Although the provisions on mediation confidentiality do not bar admissibility or disclosure, there may be other bases for exclusion. For guidance on binding a disputant to a settlement agreement, see Williams v. Saunders, 55 Cal. App. 4th 1158, 64 Cal. Rptr. 2d 571 (1997) ("The litigants' direct participation tends to ensure that the settlement is the result of their mature reflection and deliberate assent.").

See Section 1115(a) ("mediation" defined). [1997–98 Annual Report, 27 Cal.L.Rev.Comm. Reports App. 5 (1997)]

§ 1125. End of mediation; satisfaction of conditions

(a) For purposes of confidentiality under this chapter, a mediation ends when any one of the following conditions is satisfied:

(1) The parties execute a written settlement agreement that fully resolves the dispute.

(2) An oral agreement that fully resolves the dispute is reached in accordance with Section 1118.

(3) The mediator provides the mediation participants with a writing signed by the mediator that states that the mediation is terminated, or words to that effect, which shall be consistent with Section 1121.

(4) A party provides the mediator and the other mediation participants with a writing stating that the mediation is terminated, or words to that effect, which shall be consistent with Section 1121. In a mediation involving more than two parties, the mediation may continue as to the remaining parties or be terminated in accordance with this section.

(5) For 10 calendar days, there is no communication between the mediator and any of the parties to the mediation relating to the dispute. The mediator and the parties may shorten or extend this time by agreement.

(b) For purposes of confidentiality under this chapter, if a mediation partially resolves a dispute, mediation ends when either of the following conditions is satisfied:

(1) The parties execute a written settlement agreement that partially resolves the dispute.

(2) An oral agreement that partially resolves the dispute is reached in accordance with Section 1118.

(c) This section does not preclude a party from ending a mediation without reaching an agreement. This section does not otherwise affect the extent to which a party may terminate a mediation.

LAW REVISION COMMISSION COMMENTS

1997 Addition

By specifying when a mediation ends, Section 1125 provides guidance on which communications are protected by Section 1119 (mediation confidentiality).

Under subdivision (a)(1), if mediation participants reach an oral compromise and reduce it to a written settlement fully resolving their dispute, confidentiality extends until the agreement is signed by all the parties. For guidance on binding a disputant to a settlement agreement, see Williams v. Saunders, 55 Cal. App. 4th 1158, 64 Cal. Rptr. 2d 571 (1997) ("The litigants' direct participation tends to ensure that the settlement is the result of their mature reflection and deliberate assent.").

Subdivision (a)(2) applies where mediation participants fully resolve their dispute by an oral agreement that is recorded and memorialized in writing in accordance with Section 1118. The mediation is over upon completion of that procedure, and the confidentiality protections of this chapter do not apply to any later proceedings, such as attempts to further refine the content of the agreement. See Section 1124 (oral agreements reached through mediation). Subdivisions (a)(3) and (a)(4) are drawn from Rule 14 of the American Arbitration Association's Commercial Mediation Rules (as amended, Jan. 1, 1992). Subdivision (a)(5) applies where an affirmative act terminating a mediation for purposes of this chapter does not occur.

Subdivision (b) applies where mediation partially resolves a dispute, such as when the disputants resolve only some of the issues (e.g., contract, but not tort, liability) or when only some of the disputants settle.

Subdivision (c) limits the effect of Section 1125.

See Sections 1115(a) ("mediation" defined), 1115(b) ("mediator" defined). [1997–98 Annual Report, 27 Cal.L.Rev.Comm. Reports App. 5 (1997)]

§ 1126. Protections before and after mediation ends

Anything said, any admission made, or any writing that is inadmissible, protected from disclosure, and confidential under this chapter before a mediation ends, shall remain inadmissible, protected from disclosure, and confidential to the same extent after the mediation ends.

LAW REVISION COMMISSION COMMENTS

1997 Addition

Section 1126 clarifies that mediation materials are confidential not only during a mediation, but also after the mediation ends pursuant to Section 1125 (when mediation ends).

See Section 1115(a) ("mediation" defined). [1997–98 Annual Report, 27 Cal.L.Rev.Comm. Reports App. 5 (1997)]

§ 1127. Attorney's fees and costs

If a person subpoenas or otherwise seeks to compel a mediator to testify or produce a writing, as defined in Section 250, and the court or other adjudicative body determines that the testimony or writing is inadmissible under this chapter, or protected from disclosure under this chapter, the court or adjudicative body making the determination shall award reasonable attorney's fees and costs to the mediator against the person seeking the testimony or writing.

LAW REVISION COMMISSION COMMENTS

1997 Addition

Section 1127 continues former Section 1152.5(d) without substantive change, except to clarify that either a court or another adjudicative body (e.g., an arbitrator or an administrative tribunal) may award the fees and costs. Because Section 1115 (definitions) defines "mediator" to include not only the neutral person who takes the lead in conducting a mediation, but also any neutral who assists in the mediation, fees are available regardless of the role played by the person subjected to discovery.

See Section 1115(b) ("mediator" defined). [1997–98 Annual Report, 27 Cal.L.Rev.Comm. Reports App. 5 (1997)]

§ 1128. Subsequent trials; references to mediation

Any reference to a mediation during any subsequent trial is an irregularity in the proceedings of the trial for the purposes of Section 657 of the Code of Civil Procedure. Any reference to a mediation during any other subsequent noncriminal proceeding is grounds for vacating or modifying the decision in that proceeding, in whole or in part, and granting a new or further hearing on all or part of the issues, if the reference materially affected the substantial rights of the party requesting relief.

LAW REVISION COMMISSION COMMENTS

1997 Addition

Section 1128 is drawn from Code of Civil Procedure Section 1775.12. The first sentence makes it an irregularity to refer to a mediation in a subsequent civil trial; the second sentence extends that rule to other noncriminal proceedings, such as an administrative adjudication. An appropriate situation for invoking this section is where a party urges the trier of fact to draw an adverse inference from an adversary's refusal to disclose mediation communications.

See Section 1115 ("mediation" defined). [1997–98 Annual Report, 27 Cal.L.Rev.Comm. Reports App. 5 (1997)]

CHAPTER 3. OTHER EVIDENCE AFFECTED OR EXCLUDED BY EXTRINSIC POLICIES

§ 1150. Evidence to test a verdict

(a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.

(b) Nothing in this code affects the law relating to the competence of a juror to give evidence to impeach or support a verdict.

§ 1151. Subsequent remedial conduct

When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event.

LAW REVISION COMMISSION COMMENT

Section 1151 codifies well-settled law. Helling v. Schindler, 145 Cal. 303, 78 Pac. 710 (1904); Sappenfield v. Main Street etc. R.R., 91 Cal. 48, 27 Pac. 590 (1891). The admission of evidence of subsequent repairs to prove negligence would substantially discourage persons from making repairs after the occurrence of an accident.

Section 1151 does not prevent the use of evidence of subsequent remedial conduct for the purpose of impeachment in appropriate cases. This is in accord with Pierce v. J. C. Penney Co., 167 Cal.App.2d 3, 334 P.2d 117 (1959). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1152. Offer to compromise

(a) Evidence that a person has, in compromise or from humanitarian motives, furnished or offered or promised to furnish money or any other thing, act, or service to another who has sustained or will sustain or claims that he or she has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for the loss or damage or any part of it.

(b) In the event that evidence of an offer to compromise is admitted in an action for breach of the covenant of good faith and fair dealing or violation of subdivision (h) of Section 790.03 of the Insurance Code, then at the request of the party against whom the evidence is admitted, or at the request of the party who made the offer to compromise that was admitted, evidence relating to any other offer or counteroffer to compromise the same or substantially the same claimed loss or damage shall also be admissible for the same purpose as the initial evidence regarding settlement. Other than as may be admitted in an action for breach of the covenant of good faith and fair dealing or violation of subdivision (h) of Section 790.03 of the Insurance Code, evidence of settlement offers shall not be admitted in a motion for a new trial, in any proceeding involving an additur or remittitur, or on appeal.

(c) This section does not affect the admissibility of evidence of any of the following:

(1) Partial satisfaction of an asserted claim or demand without questioning its validity when such evidence is offered to prove the validity of the claim.

(2) A debtor's payment or promise to pay all or a part of his or her preexisting debt when such evidence is offered to prove the creation of a new duty on his or her part or a revival of his or her preexisting duty.

LAW REVISION COMMISSION COMMENT

1965 Enactment

Section 1152, like Section 2078 of the Code of Civil Procedure which it supersedes, declares that compromise offers are inadmissible to prove liability. Because of the particular wording of Section 2078, an offer of compromise probably may not be considered as an admission even though admitted without objection. See Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article VI. Extrinsic Policies Affecting Admissibility), 6 Cal.Law Revision Comm'n, Rep., Rec. & Studies 601, 675–676 (1964). See also Scott v. Wood, 81 Cal. 398, 405–406, 22 Pac. 871, 873 (1889). Under Section 1152, however, nothing prohibits the consideration of an offer of settlement on the issue of liability if the evidence is received without objection. This modest change in the law is desirable. An offer of compromise, like other incompetent evidence, should be considered to the extent that it is relevant when it is presented to the trier of fact without objection.

The words "as well as any conduct or statements made in negotiation thereof" make it clear that statements made by parties during negotiations for the settlement of a claim may not be used as admissions in later litigation. This language will change the existing law under which certain statements made during settlement negotiations may be used as admissions. People v. Forster, 58 Cal.2d 257, 23 Cal.Rptr. 582, 373 P.2d 630 (1962). The rule excluding offers is based upon the public policy in favor of the settlement of disputes without litigation. The same public policy requires that admissions made during settlement negotiations also be excluded. The rule of the Forster case that permits such statements to be admitted places a premium on the form of the statement. The statement "Assuming, for the purposes of these negotiations, that I was negligent ..." is inadmissible; but the statement "All right, I was negligent! Let's talk about damages ..." may be admissible. See the discussion in People v. Glen Arms Estate, Inc., 230 Cal.App.2d 841, 863, 864, 41 Cal.Rptr. 303, 316 (1964). The rule of the Forster case is changed by Section 1152 because that rule prevents the complete candor between the parties that is most conducive to settlement. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

1967 Amendment

The amendment to Section 1152 is intended to clarify the meaning of the section without changing its substantive effect. The words "or will sustain" have been added to make it clear that the section applies to statements made in the course of negotiations concerning future loss or damage as well as past loss or damage. Such negotiations might occur as a result of an alleged anticipatory breach of contract or as an incident of an eminent domain proceeding. [8 Cal.L.Rev.Comm. Reports 101 (1967)]

§ 1152.5. Repealed by Stats.1997, c. 772 (A.B.939), § 5

§ 1152.6. Repealed by Stats.1997, c. 772 (A.B.939), § 6

§ 1153. Offer to plead guilty or withdrawn plea of guilty by criminal defendant

Evidence of a plea of guilty, later withdrawn, or of an offer to plead guilty to the crime charged or to any other crime, made by the defendant in a criminal action is inadmissible in any action or in any proceeding of any nature, including proceedings before agencies, commissions, boards, and tribunals.

LAW REVISION COMMISSION COMMENT

Section 1153 is consistent with existing law. Under existing law, evidence of a rejected offer to plead guilty to the crime charged or to a lesser crime is inadmissible. Penal Code § 1192.4; People v. Wilson, 60 Cal.2d 139, 155–156, 32 Cal.Rptr. 44, 54–55, 383 P.2d 452, 462–463 (1963); People v. Hamilton, 60 Cal.2d 105, 113–114, 32 Cal.Rptr. 4, 8–9, 383 P.2d 412, 146–417 (1963). Likewise, a plea of guilty, later withdrawn, is inadmissible. People v. Quinn, 61 Cal.2d 551, 39 Cal.Rptr. 393, 393 P.2d 705 (1964). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1153.5. Offer for civil resolution of crimes against property

Evidence of an offer for civil resolution of a criminal matter pursuant to the provisions of Section 33 of the Code of Civil Procedure, or admissions made in the course of or negotiations for the offer shall not be admissible in any action.

§ 1154. Offer to discount a claim

Evidence that a person has accepted or offered or promised to accept a sum of money or any other thing, act, or service in satisfaction of a claim, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove the invalidity of the claim or any part of it.

LAW REVISION COMMISSION COMMENT

Section 1154 stems from the same policy of encouraging settlement and compromise that is reflected in Section 1152. Except for the language "as well as any conduct or statements made in negotiation thereof," this section codifies existing law. Dennis v. Belt, 30 Cal. 247 (1866); Anderson v. Yousem, 177 Cal.App.2d 135, 1 Cal.Rptr. 889 (1960); Cramer v. Lee Wa Corp., 109 Cal.App.2d 691, 241 P.2d 550 (1952). The significance of the quoted language is indicated in the Comment to Section 1152. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1155. Liability insurance

Evidence that a person was, at the time a harm was suffered by another, insured wholly or partially against loss arising from liability for that harm is inadmissible to prove negligence or other wrongdoing.

LAW REVISION COMMISSION COMMENT

Section 1155 codifies existing law. Roche v. Llewellyn Iron Works Co., 140 Cal. 563, 74 Pac. 147 (1903). Evidence of liability insurance might be inadmissible in the absence of Section 1155 because it is not relevant; Section 1155 assures its inadmissibility. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1156. Records of medical or dental study of in-hospital staff committee

(a) In-hospital medical or medical-dental staff committees of a licensed hospital may engage in research and medical or dental study for the purpose of reducing morbidity or mortality, and may make findings and recommendations relating to such purpose. Except as provided in subdivision (b), the written records of interviews, reports, statements, or memoranda of such in-hospital medical or medical-dental staff committees relating to such medical or dental studies are subject to Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure (relating to discovery proceedings) but, subject to subdivisions (c) and (d), shall not be admitted as evidence in any action or before any administrative body, agency, or person.

(b) The disclosure, with or without the consent of the patient, of information concerning him to such in-hospital medical or medical-dental staff committee does not make unprivileged any information that would otherwise be privileged under Section 994 or 1014; but, notwithstanding Sections 994 and 1014, such information is subject to discovery under subdivision (a) except that the identity of any patient may not be discovered under subdivision (a) unless the patient consents to such disclosure.

(c) This section does not affect the admissibility in evidence of the original medical or dental records of any patient.

(d) This section does not exclude evidence which is relevant evidence in a criminal action.

§ 1156.1. Records of medical or psychiatric studies of quality assurance committees

(a) A committee established in compliance with Sections 4070 and 5624 of the Welfare and Institutions Code may engage in research and medical or psychiatric study for the purpose of reducing morbidity or mortality, and may make findings and recommendations to the county and state relating to such purpose. Except as provided in subdivision (b), the written records of interviews, reports, statements, or memoranda of such committees relating to such medical or psychiatric studies are subject to Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure but, subject to subdivisions (c) and (d), shall not be admitted as evidence in any action or before any administrative body, agency, or person.

(b) The disclosure, with or without the consent of the patient, of information concerning him or her to such committee does not make unprivileged any information that would otherwise be privileged under Section 994 or 1014. However, notwithstanding Sections 994 and 1014, such information is subject to discovery under subdivision (a) except that the identity of any patient may not be discovered under subdivision (a) unless the patient consents to such disclosure.

(c) This section does not affect the admissibility in evidence of the original medical or psychiatric records of any patient.

(d) This section does not exclude evidence which is relevant evidence in a criminal action.

§ 1157. Proceedings and records of organized committees having responsibility of evaluation and improvement of quality of care; exceptions

(a) Neither the proceedings nor the records of organized committees of medical, medical-dental, podiatric, registered dietitian, psychological, marriage and family therapist, licensed clinical social worker, professional clinical counselor, or veterinary staffs in hospitals, or of a peer review body, as defined in Section 805 of the Business and Professions Code, having the responsibility of evaluation and improvement of the quality of care rendered in the hospital, or for that peer review body, or medical or dental review or dental hygienist review or chiropractic review or podiatric review or registered dietitian review or veterinary review or acupuncturist review committees of local medical, dental, dental hygienist, podiatric, dietetic, veterinary, acupuncture, or chiropractic societies, marriage and family therapist, licensed clinical social worker, professional clinical counselor, or psychological review committees of state or local marriage and family therapist, state or local licensed clinical social worker, professional clinical counselor, state or local psychological associations or societies having the responsibility of evaluation and improvement of the quality of care, shall be subject to discovery.

(b) Except as hereinafter provided, no person in attendance at a meeting of any of those committees shall be required to testify as to what transpired at that meeting.

(c) The prohibition relating to discovery or testimony does not apply to the statements made by any person in attendance at a meeting of any of those committees who is a party to an action or proceeding the subject matter of which was reviewed at that meeting, or to any person requesting hospital staff privileges, or in any action against an insurance carrier alleging bad faith by the carrier in refusing to accept a settlement offer within the policy limits.

(d) The prohibitions in this section do not apply to medical, dental, dental hygienist, podiatric, dietetic, psychological, marriage and family therapist, licensed clinical social worker, professional clinical counselor, veterinary, acupuncture, or chiropractic society committees that exceed 10 percent of the membership of the society, nor to any of those committees if any person serves upon the committee when his or her own conduct or practice is being reviewed.

(e) The amendments made to this section by Chapter 1081 of the Statutes of 1983, or at the 1985 portion of the 1985–86 Regular Session of the Legislature, at the 1990 portion of the 1989–90 Regular Session of the Legislature, at the 2000 portion of the 1999–2000 Regular Session of the Legislature, or at the 2011 portion of the 2011-12 Regular Session of the Legislature, do not exclude the discovery or use of relevant evidence in a criminal action.

§ 1157.5. Organized committee of nonprofit medical care foundation or professional standards review organization; proceedings and records

Except in actions involving a claim of a provider of health care services for payment for such services, the prohibition relating to discovery or testimony provided by Section 1157 shall be applicable to the proceedings or records of an organized committee of any nonprofit medical care foundation or professional standards review organization which is organized in a manner which makes available professional competence to review health care services with respect to medical necessity, quality of care, or economic justification of charges or level of care.

§ 1157.6. Proceedings and records of quality assurance committees for county health facilities

Neither the proceedings nor the records of a committee established in compliance with Sections 4070 and 5624 of the Welfare and Institutions Code having the responsibility of evaluation and improvement of the quality of mental health care rendered in county operated and contracted mental health facilities shall be subject to discovery. Except as provided in this section, no person in attendance at a meeting of any such committee shall be required to testify as to what transpired thereat. The prohibition relating to discovery or testimony shall not apply to the statements made by any person in attendance at such a meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting, or to any person requesting facility staff privileges.

§ 1157.7. Application of Section 1157 discovery or testimony prohibitions; application of public records and meetings provisions

The prohibition relating to discovery or testimony provided in Section 1157 shall be applicable to proceedings and records of any committee established by a local governmental agency to monitor, evaluate, and report on the necessity, quality, and level of specialty health services, including, but not limited to, trauma care services, provided by a general acute care hospital which has been designated or recognized by that governmental agency as qualified to render specialty health care services. The provisions of Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code and Chapter 9 (commencing with Section 54950) of Division 2 of Title 5 of the Government Code shall not be applicable to the committee records and proceedings.

§ 1158. Inspection and copying of patient's records; authorization; failure to comply; costs

Whenever, prior to the filing of any action or the appearance of a defendant in an action, an attorney at law or his or her representative presents a written authorization therefor signed by an adult patient, by the guardian or conservator of his or her person or estate, or, in the case of a minor, by a parent or guardian of the minor, or by the personal representative or an heir of a deceased patient, or a copy thereof, a physician and surgeon, dentist, registered nurse, dispensing optician, registered physical therapist, podiatrist, licensed psychologist, osteopathic physician and surgeon, chiropractor, clinical laboratory bioanalyst, clinical laboratory technologist, or pharmacist or pharmacy, duly licensed as such under the laws of the state, or a licensed hospital, shall make all of the patient's records under his, hers or its custody or control available for inspection and copying by the attorney at law or his, or her, representative, promptly upon the presentation of the written authorization.

No copying may be performed by any medical provider or employer enumerated above, or by an agent thereof, when the requesting attorney has employed a professional photocopier or anyone identified in Section 22451 of the Business and Professions Code as his or her representative to obtain or review the records on his or her behalf. The presentation of the authorization by the agent on behalf of the attorney shall be sufficient proof that the agent is the attorney's representative.

Failure to make the records available, during business hours, within five days after the presentation of the written authorization, may subject the person or entity having custody or control of the records to liability for all reasonable expenses, including attorney's fees, incurred in any proceeding to enforce this section.

All reasonable costs incurred by any person or entity enumerated above in making patient records available pursuant to this section may be charged against the person whose written authorization required the availability of the records.

"Reasonable cost," as used in this section, shall include, but not be limited to, the following specific costs: ten cents ($0.10) per page for standard reproduction of documents of a size 8<sfr>1/2<efr> by 14 inches or less; twenty cents ($0.20) per page for copying of documents from microfilm; actual costs for the reproduction of oversize documents or the reproduction of documents requiring special processing which are made in response to an authorization; reasonable clerical costs incurred in locating and making the records available to be billed at the maximum rate of sixteen dollars ($16) per hour per person, computed on the basis of four dollars ($4) per quarter hour or fraction thereof; actual postage charges; and actual costs, if any, charged to the witness by a third person for the retrieval and return of records held by that third person.

Where the records are delivered to the attorney or the attorney's representative for inspection or photocopying at the record custodian's place of business, the only fee for complying with the authorization shall not exceed fifteen dollars ($15), plus actual costs, if any, charged to the record custodian by a third person for retrieval and return of records held offsite by the third person.

§ 1159. Animal experimentation in product liability actions

(a) No evidence pertaining to live animal experimentation, including, but not limited to, injury, impact, or crash experimentation, shall be admissible in any product liability action involving a motor vehicle or vehicles.

(b) This section shall apply to cases for which a trial has not actually commenced, as described in paragraph (6) of subdivision (a) of Section 581 of the Code of Civil Procedure, on January 1, 1993.

§ 1160. Admissibility of expressions of sympathy or benevolence; definitions

(a) The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action. A statement of fault, however, which is part of, or in addition to, any of the above shall not be inadmissible pursuant to this section.

(b) For purposes of this section:

(1) "Accident" means an occurrence resulting in injury or death to one or more persons which is not the result of willful action by a party.

(2) "Benevolent gestures" means actions which convey a sense of compassion or commiseration emanating from humane impulses.

(3) "Family" means the spouse, parent, grandparent, stepmother, stepfather, child, grandchild, brother, sister, half brother, half sister, adopted children of parent, or spouse's parents of an injured party.

DIVISION 10. HEARSAY EVIDENCE

CHAPTER 1. GENERAL PROVISIONS

§ 1200. The hearsay rule

(a) "Hearsay evidence" is 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.

(b) Except as provided by law, hearsay evidence is inadmissible.

(c) This section shall be known and may be cited as the hearsay rule.

§ 1201. Multiple hearsay

A statement within the scope of an exception to the hearsay rule is not inadmissible on the ground that the evidence of such statement is hearsay evidence if such hearsay evidence consists of one or more statements each of which meets the requirements of an exception to the hearsay rule.

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1965 Enactment

Section 1201 makes it possible to use admissible hearsay to prove another statement that is also admissible hearsay. For example, under Section 1201, an official reporter's transcript of the testimony at a previous trial may be used to prove the testimony previously given (Evidence Code § 1280); the former testimony may be used as evidence (Evidence Code § 1291) to prove that a party made a statement; and the party's statement is admissible against him as an admission (Evidence Code § 1220). Thus, under Section 1201, the evidence of the admission contained in the transcript is admissible because each of the hearsay statements involved is within an exception to the hearsay rule.

Although no California case has been found where the admissibility of "multiple hearsay" has been analyzed and discussed, the practice is apparently in accord with the rule stated in Section 1201. See, e.g., People v. Collup, 27 Cal.2d 829, 167 P.2d 714 (1946) (transcript of former testimony used to prove admission). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

1967 Amendment

This amendment is designed to clarify the meaning of Section 1201 without changing its substantive effect. [8 Cal.L.Rev.Comm. Reports 101 (1967)]

§ 1202. Credibility of hearsay declarant

Evidence of a statement or other conduct by a declarant that is inconsistent with a statement by such declarant received in evidence as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the declarant though he is not given and has not had an opportunity to explain or to deny such inconsistent statement or other conduct. Any other evidence offered to attack or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness at the hearing. For the purposes of this section, the deponent of a deposition taken in the action in which it is offered shall be deemed to be a hearsay declarant.

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Section 1202 deals with the impeachment of a declarant whose hearsay statement is in evidence as distinguished from the impeachment of a witness who has testified. It clarifies two points. First, evidence to impeach a hearsay declarant is not to be excluded on the ground that it is collateral. Second, the rule applying to the impeachment of a witness—that a witness may be impeached by an inconsistent statement only if he is provided with an opportunity to explain or deny it—does not apply to a hearsay declarant.

When hearsay evidence in the form of former testimony has been admitted, the California courts have permitted a party to impeach the hearsay declarant with evidence of an inconsistent statement made by the hearsay declarant after the former testimony was given, even though the declarant was never given an opportunity to explain or deny the inconsistency. People v. Collup, 27 Cal.2d 829, 167 P.2d 714 (1946). Apparently, however, former testimony may not be impeached by evidence of an inconsistent statement made prior to the former testimony unless the would-be impeacher either did not know of the inconsistent statement at the time the former testimony was given or unless he had provided the declarant with an opportunity to explain or deny the inconsistent statement. People v. Greenwell, 20 Cal.App.2d 266, 66 P.2d 674 (1937), as limited by People v. Collup, 27 Cal.2d 829, 167 P.2d 714 (1946). The courts permit dying declarations to be impeached by evidence of contradictory statements by the deceased despite the lack of any foundation, for only in very rare cases would it be possible to provide the declarant with an opportunity to explain or deny the inconsistency. People v. Lawrence, 21 Cal. 368 (1863).

Section 1202 substitutes for this case law a uniform rule permitting a hearsay declarant to be impeached by inconsistent statements in all cases, whether or not the declarant has been given an opportunity to explain or deny the inconsistency. If the hearsay declarant is unavailable as a witness, the party against whom the evidence is admitted should not be deprived of both his right to cross-examine and his right to impeach. Cf. People v. Lawrence, 21 Cal. 368, 372 (1863). If the hearsay declarant is available, the party electing to use the hearsay of such a declarant should have the burden of calling him to explain or deny any alleged inconsistencies.

Of course, the trial judge may curb efforts to impeach hearsay declarants if he determines that the inquiry is becoming too remote from the issues that are actually at stake in the litigation. Evidence Code § 352.

Section 1235 provides that evidence of inconsistent statements made by a trial witness may be admitted to prove the truth of the matter stated. No similar exception to the hearsay rule is applicable to a hearsay declarant's inconsistent statements that are admitted under Section 1202. Hence, the hearsay rule prohibits any such statement from being used to prove the truth of the matter stated. If the declarant is not a witness and is not subject to cross-examination upon the subject matter of his statements, there is no sufficient guarantee of the trustworthiness of the statements he has made out of court to warrant their reception as substantive evidence unless they fall within some recognized exception to the hearsay rule. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1203. Cross-examination of hearsay declarant

(a) The declarant of a statement that is admitted as hearsay evidence may be called and examined by any adverse party as if under cross-examination concerning the statement.

(b) This section is not applicable if the declarant is (1) a party, (2) a person identified with a party within the meaning of subdivision (d) of Section 776, or (3) a witness who has testified in the action concerning the subject matter of the statement.

(c) This section is not applicable if the statement is one described in Article 1 (commencing with Section 1220), Article 3 (commencing with Section 1235), or Article 10 (commencing with Section 1300) of Chapter 2 of this division.

(d) A statement that is otherwise admissible as hearsay evidence is not made inadmissible by this section because the declarant who made the statement is unavailable for examination pursuant to this section.

§ 1203.1. Hearsay offered at preliminary examination; in application of § 1203

Section 1203 is not applicable if the hearsay statement is offered at a preliminary examination, as provided in Section 872 of the Penal Code.

§ 1204. Hearsay statement offered against criminal defendant

A statement that is otherwise admissible as hearsay evidence is inadmissible against the defendant in a criminal action if the statement was made, either by the defendant or by another, under such circumstances that it is inadmissible against the defendant under the Constitution of the United States or the State of California.

§ 1205. No implied repeal

Nothing in this division shall be construed to repeal by implication any other statute relating to hearsay evidence.

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Although some of the statutes providing for the admission of hearsay evidence will be repealed when the Evidence Code is enacted, a number of statutes will remain in the various codes. For the most part, these statutes are narrowly drawn to make a particular type of hearsay evidence admissible under specifically limited circumstances. To assure the continued validity of these provisions, Section 1205 states that they will not be impliedly repealed by the enactment of the Evidence Code. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

CHAPTER 2. EXCEPTIONS TO THE HEARSAY RULE

ARTICLE 1. CONFESSIONS AND ADMISSIONS

§ 1220. Admission of party

Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.

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Section 1220 states existing law as found in subdivision 2 of Section 1870 of the Code of Civil Procedure. The rationale underlying this exception is that the party cannot object to the lack of the right to cross-examine the declarant since the party himself made the statement. Moreover, the party can cross-examine the witness who testifies to the party's statement and can explain or deny the purported admission. The statement need not be one which would be admissible if made at the hearing. See Shields v. Oxnard Harbor Dist., 46 Cal.App.2d 477, 116 P.2d 121 (1941).

In a criminal action, a defendant's statement is not admissible under this section unless it was made voluntarily. Evidence Code § 1204. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1221. Adoptive admission

Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.

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Section 1221 restates an exception found in subdivision 3 of Section 1870 of the Code of Civil Procedure. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1222. Authorized admission

Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if:

(a) The statement was made by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement; and

(b) The evidence is offered either after admission of evidence sufficient to sustain a finding of such authority or, in the court's discretion as to the order of proof, subject to the admission of such evidence.

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Section 1222 provides a hearsay exception for authorized admissions. Under this exception, if a party authorized an agent to make statements on his behalf, such statements may be introduced against the party under the same conditions as if they had been made by the party himself. The authority of the declarant to make the statement need not be express; it may be implied. It is to be determined in each case under the substantive law of agency. Section 1222 restates an exception found in the first portion of subdivision 5 of Section 1870 of the Code of Civil Procedure. See Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article VIII. Hearsay Evidence), 6 Cal.Law Revision Comm'n, Rep., Rec. & Studies Appendix at 484–490 (1964). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1223. Admission of co-conspirator

Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if:

(a) The statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy;

(b) The statement was made prior to or during the time that the party was participating in that conspiracy; and

(c) The evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions (a) and (b) or, in the court's discretion as to the order of proof, subject to the admission of such evidence.

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Section 1223 is a specific example of a kind of authorized admission that is admissible under Section 1222. The statement is admitted because it is an act of the conspiracy for which the party, as a co-conspirator, is legally responsible. People v. Lorraine, 90 Cal.App. 317, 327, 265 Pac. 893, 897 (1928). See California Criminal Law Practice 471–472 (Cal.Cont.Ed.Bar 1964). Section 1223 restates an exception found in subdivision 6 of Section 1870 of the Code of Civil Procedure. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1224. Statement of declarant whose liability or breach of duty is in issue

When the liability, obligation, or duty of a party to a civil action is based in whole or in part upon the liability, obligation, or duty of the declarant, or when the claim or right asserted by a party to a civil action is barred or diminished by a breach of duty by the declarant, evidence of a statement made by the declarant is as admissible against the party as it would be if offered against the declarant in an action involving that liability, obligation, duty, or breach of duty.

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Section 1224 restates in substance a hearsay exception found in Code of Civil Procedure Section 1851 (superseded by Evidence Code Sections 1224 and 1302). See Butte County v. Morgan, 76 Cal. 1, 18 Pac. 115 (1888); Ingram v. Bob Jaffe Co., 139 Cal.App.2d 193, 293 P.2d 132 (1956); Standard Oil Co. v. Houser, 101 Cal.App.2d 480, 225 P.2d 539 (1950). Section 1224, however, limits this hearsay exception to civil actions. Much of the evidence within this exception is also covered by Section 1230, which makes declarations against interest admissible. However, to be admissible under Section 1230, the statement must have been against the declarant's interest when made; this requirement is not stated in Section 1224.

Code of Civil Procedure Section 1851 provides for the admission of a declarant's statements in an action where the liability of the party against whom the statements are offered is based on the declarant's breach of duty. Butte County v. Morgan, 76 Cal. 1, 18 Pac. 115 (1888); Nye & Nissen v. Central etc. Ins. Corp., 71 Cal.App.2d 570, 163 P.2d 100 (1945). Section 1224 of the Evidence Code refers specifically to "breach of duty" in order to admit statements of a declarant whose breach of duty is in issue without regard to whether that breach gives rise to a liability of the party against whom the statements are offered or merely defeats a right being asserted by that party. For example, in Ingram v. Bob Jaffe Co., 139 Cal.App.2d 193, 293 P.2d 132 (1956), a statement of a person permitted to operate a vehicle was admitted against the owner of the vehicle in an action seeking to hold the owner liable on the derivative liability of vehicle owners established by Vehicle Code Section 17150. Under Section 1224, the statement of the declarant would also be admissible against the owner in an action brought by the owner to recover for damage to his vehicle where the defense is based on the contributory negligence of the declarant.

Section 1302 supplements the rule stated in Section 1224. Section 1302 creates an exception for judgments against a third person when one of the issues between the parties is the liability, obligation, or duty of the third person and the judgment determines that liability, obligation, or duty. Together, Sections 1224 and 1302 codify the holdings of the cases applying Code of Civil Procedure Section 1851. See Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article VIII. Hearsay Evidence), 6 Cal.Law Revision Comm'n, Rep., Rec. & Studies Appendix at 491–496 (1964). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1225. Statement of declarant whose right or title is in issue

When a right, title, or interest in any property or claim asserted by a party to a civil action requires a determination that a right, title, or interest exists or existed in the declarant, evidence of a statement made by the declarant during the time the party now claims the declarant was the holder of the right, title, or interest is as admissible against the party as it would be if offered against the declarant in an action involving that right, title, or interest.

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Section 1225 expresses a common law exception to the hearsay rule that is recognized in part in Section 1849 of the Code of Civil Procedure. Section 1849 (which is superseded by Section 1225) permits the statements of predecessors in interest of real property to be admitted against the successors; however, the California cases follow the general rule of permitting predecessors' statements to be admitted against successors of either real or personal property. Smith v. Goethe, 159 Cal. 628, 115 Pac. 223 (1911); 4 Wigmore, Evidence § 1082 et seq. (3d ed. 1940).

It should be noted that "statements made before title accrued in the declarant will not be receivable. On the other hand, the time of divestiture, after which no statements could be treated as admissions, is the time when the party against whom they are offered has by his own hypothesis acquired the title; thus, in a suit, for example, between A's heir and A's grantee, A's statements at any time before his death are receivable against the heir; but only his statements before the grant are receivable against the grantee." 4 Wigmore, Evidence § 1082 at 153 (3d ed. 1940).

Despite the limitations of Section 1225, some statements of a grantor made after divestiture of title will be admissible; but another theory of admissibility must be found. For example, later statement of his state of mind may be admissible on the issue of his intent. Evidence Code §§ 1950 and 1251. Where it is claimed that a conveyance was in fraud of creditors, the later statements of the grantor may be admissible not as hearsay but as evidence of the fraud itself (cf. Bush & Mallett Co. v. Helbing, 134 Cal. 676, 66 Pac. 967 (1901)) or as declarations of a co-conspirator in the fraud (cf. McGee v. Allen, 7 Cal.2d 468, 60 P.2d 1026 (1936)). See generally 4 Wigmore, Evidence § 1086 (3d ed. 1940).

Section 1225 supplements the rule provided in Section 1224. Under Section 1224, for example, a party suing an executor on an obligation incurred by the decedent prior to his death may introduce admissions of the decedent. Similarly, under Section 1225, a party sued by an executor on an obligation claimed to have been owed to the decedent may introduce admissions of the decedent. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1226. Statement of minor child in parent's action for child's injury

Evidence of a statement by a minor child is not made inadmissible by the hearsay rule if offered against the plaintiff in an action brought under Section 376 of the Code of Civil Procedure for injury to such minor child.

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See the Comment to Section 1227. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1227. Statement of declarant in action for his wrongful death

Evidence of a statement by the deceased is not made inadmissible by the hearsay rule if offered against the plaintiff in an action for wrongful death brought under Section 377 of the Code of Civil Procedure.

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Under existing law, an admission by a decedent is not admissible against his heirs or representatives in a wrongful death action brought by them. Marks v. Reissinger, 35 Cal.App. 44, 169 Pac. 243 (1917). Cf. Hedge v. Williams, 131 Cal. 455, 63 Pac. 721 (1901). The reason is that the action is a new action, but merely a survival of the decedent's action. This rule has been severely criticized and is contrary to the rule adopted by most American courts. Carr v. Duncan, 90 Cal.App.2d 282, 285, 202 P.2d 855, 856 (1949).

Under Section 1224, the admissions of a decedent are admissible to establish the liability of his executor. Similarly, when the executor brings an action for the decedent's death under Code of Civil Procedure Section 377, the defendant should be permitted to introduce the admissions of the decedent. Without Section 1227, in an action between two executors arising out of an accident which was fatal to both participants, the plaintiff executor would be able to introduce admissions of the defendant's decedent, but the defending executor would be unable to introduce admissions of the plaintiff's decedent.

Section 1227 changes the rule announced in the California cases and makes the admissions of the decedent admissible in wrongful death actions. Section 1226 provides a similar rule for the analogous cases arising under Code of Civil Procedure Section 376 (action by parent of injured child).

Section 1227 recognizes that, in an action brought under Code of Civil Procedure Section 377, the only reason for treating the admissions of a plaintiff's decedent differently from those of a defendant's decedent is a technical procedural rule. The plaintiff in a wrongful death action—and the parent of an injured child in an action under Code of Civil Procedure Section 376—stands in reality so completely on the right of the deceased or injured person that such person's admissions should be admitted against the plaintiff, even though (as a technical matter) the plaintiff is asserting an independent right. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1228. Admissibility of certain out-of-court statements of minors under the age of 12; establishing elements of certain sexually oriented crimes; notice to defendant

Notwithstanding any other provision of law, for the purpose of establishing the elements of the crime in order to admit as evidence the confession of a person accused of violating Section 261, 264.1, 285, 286, 288, 288a, 289, or 647a of the Penal Code, a court, in its discretion, may determine that a statement of the complaining witness is not made inadmissible by the hearsay rule if it finds all of the following:

(a) The statement was made by a minor child under the age of 12, and the contents of the statement were included in a written report of a law enforcement official or an employee of a county welfare department.

(b) The statement describes the minor child as a victim of sexual abuse.

(c) The statement was made prior to the defendant's confession. The court shall view with caution the testimony of a person recounting hearsay where there is evidence of personal bias or prejudice.

(d) There are no circumstances, such as significant inconsistencies between the confession and the statement concerning material facts establishing any element of the crime or the identification of the defendant, that would render the statement unreliable.

(e) The minor child is found to be unavailable pursuant to paragraph (2) or (3) of subdivision (a) of Section 240 or refuses to testify.

(f) The confession was memorialized in a trustworthy fashion by a law enforcement official.

If the prosecution intends to offer a statement of the complaining witness pursuant to this section, the prosecution shall serve a written notice upon the defendant at least 10 days prior to the hearing or trial at which the prosecution intends to offer the statement.

If the statement is offered during trial, the court's determination shall be made out of the presence of the jury. If the statement is found to be admissible pursuant to this section, it shall be admitted out of the presence of the jury and solely for the purpose of determining the admissibility of the confession of the defendant.

§ 1228.1. Signature of parent or guardian on child welfare services case plan; acceptance of services; use in court of law; failure to cooperate

(a) Except as provided in subdivision (b), neither the signature of any parent or legal guardian on a child welfare services case plan nor the acceptance of any services prescribed in the child welfare services case plan by any parent or legal guardian shall constitute an admission of guilt or be used as evidence against the parent or legal guardian in a court of law.

(b) A parent's or guardian's failure to cooperate, except for good cause, in the provision of services specified in the child welfare services case plan may be used as evidence, if relevant, in any hearing held pursuant to Section * * * 366.21, 366.22, or 388 of the Welfare and Institutions Code * * * and at any jurisdictional or dispositional hearing held on a petition filed pursuant to Section 300, 342, or 387 of the Welfare and Institutions Code.

(Added by Stats.1995, c. 540 (A.B.1523), § 1. Amended by Stats.1997, c. 793 (A.B.1544), § 1.)

ARTICLE 2. DECLARATIONS AGAINST INTEREST

§ 1230. Declarations against interest

Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.

ARTICLE 2.5. SWORN STATEMENTS REGARDING GANG–RELATED CRIMES

§ 1231. Prior statements of deceased declarant; hearsay exception

Evidence of a prior statement made by a declarant is not made inadmissible by the hearsay rule if the declarant is deceased and the proponent of introducing the statement establishes each of the following:

(a) The statement relates to acts or events relevant to a criminal prosecution under provisions of the California Street Terrorism Enforcement and Prevention Act (Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 of the Penal Code).

(b) A verbatim transcript, copy, or record of the statement exists. A record may include a statement preserved by means of an audio or video recording or equivalent technology.

(c) The statement relates to acts or events within the personal knowledge of the declarant.

(d) The statement was made under oath or affirmation in an affidavit; or was made at a deposition, preliminary hearing, grand jury hearing, or other proceeding in compliance with law, and was made under penalty of perjury.

(e) The declarant died from other than natural causes.

(f) The statement was made under circumstances that would indicate its trustworthiness and render the declarant's statement particularly worthy of belief. For purposes of this subdivision, circumstances relevant to the issue of trustworthiness include, but are not limited to, all of the following:

(1) Whether the statement was made in contemplation of a pending or anticipated criminal or civil matter, in which the declarant had an interest, other than as a witness.

(2) Whether the declarant had a bias or motive for fabricating the statement, and the extent of any bias or motive.

(3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section.

Whether the statement was a statement against the declarant's interest.

(Added by Stats.1997, c. 499 (S.B.941), § 1.)

§ 1231.1. Statements made by deceased declarant; admissibility; notice of statement to adverse party

A statement is admissible pursuant to Section 1231 only if the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings to provide the adverse party with a fair opportunity to prepare to meet the statement.

(Added by Stats.1997, c. 499 (S.B.941), § 1.)

§ 1231.2. Administer and certify oaths

A peace officer may administer and certify oaths for purposes of this article.

(Added by Stats.1997, c. 499 (S.B.941), § 1.)

§ 1231.3. Testimony of law enforcement officer; hearsay

Any law enforcement officer testifying as to any hearsay statement pursuant to this article shall either have five years of law enforcement experience or have completed a training course certified by the Commission on Peace Officer Standards and Training which includes training in the investigation and reporting of cases and testifying at preliminary hearings and trials.

(Added by Stats.1997, c. 499 (S.B.941), § 1.)

§ 1231.4. Cause of death; deceased declarant

If evidence of a prior statement is introduced pursuant to this article, the jury may not be told that the declarant died from other than natural causes, but shall merely be told that the declarant is unavailable.

(Added by Stats.1997, c. 499 (S.B.941), § 1.)

ARTICLE 3. PRIOR STATEMENTS OF WITNESSES

§ 1235. Inconsistent statement

Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.

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Under existing law, when a prior statement of a witness that is inconsistent with his testimony at the trial is admitted in evidence, it may not be used as evidence of the truth of the matters stated. Because of the hearsay rule, a witness' prior inconsistent statement may be used only to discredit his testimony given at the trial. Albert v. McKay & Co., 174 Cal. 451, 456, 163 Pac. 666, 668 (1917).

Because a witness' inconsistent statement is not substantive evidence, the courts do not permit a party—even when surprised by the testimony—to impeach his own witness with inconsistent statements if the witness' testimony at the trial has not damaged the party's case in any way. Evidence tending only to discredit the witness is irrelevant and immaterial when the witness has not given damaging testimony. People v. Crespi, 115 Cal. 50, 46 Pac. 863 (1896); People v. Mitchell, 94 Cal. 550, 29 Pac. 1106 (1892); People v. Brown, 81 Cal.App. 226, 253 Pac. 735 (1927).

Section 1235 permits an inconsistent statement of a witness to be used as substantive evidence if the statement is otherwise admissible under the conditions specified in Section 770—which do not include surprise on the part of the party calling the witness if he is the party offering the inconsistent statement. Because Section 1235 permits a witness' inconsistent statements to be considered as evidence of the matters stated and not merely as evidence casting discredit on the witness, it follows that a party may introduce evidence of inconsistent statements of his own witness whether or not the witness gave damaging testimony and whether or not the party was surprised by the testimony, for such evidence is no longer irrelevant (and, hence, inadmissible).

Section 1235 admits inconsistent statements of witnesses because the dangers against which the hearsay rule is designed to protect are largely nonexistent. The declarant is in court and may be examined and cross-examined in regard to his statements and their subject matter. In many cases, the inconsistent statement is more likely to be true than the testimony of the witness at the trial because it was made nearer in time to the matter to which it relates and is less likely to be influenced by the controversy that gave rise to the litigation. The trier of fact has the declarant before it and can observe his demeanor and the nature of his testimony as he denies or tries to explain away the inconsistency. Hence, it is in as good a position to determine the truth or falsity of the prior statement as it is to determine the truth or falsity of the inconsistent testimony given in court. Moreover, Section 1235 will provide a party with desirable protection against the "turn-coat" witness who changes his story on the stand and deprives the party calling him of evidence essential to his case. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1236. Prior consistent statement

Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791.

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Under existing law, a prior statement of a witness that is consistent with his testimony at the trial is admissible under certain conditions when the credibility of the witness has been attacked. The statement is admitted, however, only to rehabilitate the witness—to support his credibility—and not as evidence of the truth of the matter stated. People v. Kynette, 15 Cal.2d 731, 753–754, 104 P.2d 794, 805–806 (1940) (overruled on other grounds in People v. Snyder, 50 Cal.2d 190, 197, 324 P.2d 1, 6 (1958)).

Section 1236, however, permits a prior consistent statement of a witness to be used as substantive evidence if the statement is otherwise admissible under the rules relating to the rehabilitation of impeached witnesses. See Evidence Code § 791.

There is no reason to perpetuate the subtle distinction made in the cases. It is not realistic to expect a jury to understand that it cannot believe that a witness was telling the truth on a former occasion even though it believes that the same story given at the hearing is true. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1237. Past recollection recorded

(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:

(1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory;

(2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness' statement at the time it was made;

(3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and

(4) Is offered after the writing is authenticated as an accurate record of the statement.

(b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.

§ 1238. Prior identification

Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying and:

(a) The statement is an identification of a party or another as a person who participated in a crime or other occurrence;

(b) The statement was made at a time when the crime or other occurrence was fresh in the witness' memory; and

(c) The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time.

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Under Section 1235, evidence of a prior identification is admissible if the witness denies having made the prior identification or in any other way testifies inconsistently with the prior statement. Under Section 1238, evidence of a prior identification is admissible if the witness admits the prior identification and vouches for its accuracy.

Sections 1235 and 1238 codify exceptions to the hearsay rule similar to that which was recognized in People v. Gould, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865 (1960). In the Gould case, evidence of a prior identification made by a witness who could not repeat the identification at the trial was held admissible "because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness' mind. [Citations omitted.] The failure of the witness to repeat the extrajudicial identification in court does not destroy its probative value, for such failure may be explained by loss of memory or other circumstances. [Moreover,] the principal danger of admitting hearsay evidence is not present since the witness is available at the trial for cross-examination." 54 Cal.2d at 626, 7 Cal.Rptr. at 275, 354 P.2d at 867.

As there was no discussion in the Gould opinion of the preliminary showing necessary to warrant admission of evidence of a prior identification, it cannot be determined whether Sections 1235 and 1238 modify the law as declared in that case.

Sections 1235 and 1238 deal only with the admissibility of evidence; they do not determine what constitutes evidence sufficient to sustain a verdict or finding. Hence, these sections have no effect on the holding of the Gould case that evidence of an extrajudicial identification that cannot be confirmed by an identification at the trial is insufficient to sustain a criminal conviction in the absence of other evidence tending to connect the defendant with the crime. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

ARTICLE 4. SPONTANEOUS, CONTEMPORANEOUS, AND DYING DECLARATIONS

§ 1240. Spontaneous statement

Evidence of a statement is not made inadmissible by the hearsay rule if the statement:

(a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and

(b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.

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Section 1240 is a codification of the existing exception to the hearsay rule for statements made spontaneously under the stress of excitement engendered by the event to which they relate. Showalter v. Western Pacific R.R., 16 Cal.2d 460, 106 P.2d 895 (1940). See Tentative Recommendation and a study relating to the Uniform Rules of Evidence, (Article, VIII. Hearsay Evidence), 6 Cal.Law Revision Comm'n, Rep., Rec. & Studies Appendix at 465–466 (1964). The rationale of this exception is that the spontaneity of such statements and the consequent lack of opportunity for reflection and deliberate fabrication provide an adequate guarantee of their trustworthiness. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1241. Contemporaneous statement

Evidence of a statement is not made inadmissible by the hearsay rule if the statement:

(a) Is offered to explain, qualify, or make understandable conduct of the declarant; and

(b) Was made while the declarant was engaged in such conduct.

§ 1242. Dying declaration

Evidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death.

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Section 1242 is a broadened form of the well-established exception to the hearsay rule for dying declarations relating to the cause and circumstances of the declarant's death. The existing law—Code of Civil Procedure Section 1870(4) as interpreted by the courts—makes such declarations admissible only in criminal homicide actions. People v. Hall, 94 Cal. 595, 30 Pac. 7 (1892); Thrasher v. Board of Medical Examiners, 44 Cal.App. 26, 185 Pac. 1006 (1919). For the purpose of the admissibility of dying declarations, there is no rational basis for differentiating between civil and criminal actions or among various types of criminal actions. Hence, Section 1242 makes the exception applicable in all actions.

Under Section 1242, as under existing law, the dying declaration is admissible only if the declarant made the statement on personal knowledge. People v. Wasson, 65 Cal. 538, 4 Pac. 555 (1884); People v. Taylor, 59 Cal. 640 (1881). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

ARTICLE 5. STATEMENTS OF MENTAL OR PHYSICAL STATE

§ 1250. Statement of declarant's then existing mental or physical state

(a) Subject to Section 1252, evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when:

(1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or

(2) The evidence is offered to prove or explain acts or conduct of the declarant.

(b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.

§ 1251. Statement of declarant's previously existing mental or physical state

Subject to Section 1252, evidence of a statement of the declarant's state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) at a time prior to the statement is not made inadmissible by the hearsay rule if:

(a) The declarant is unavailable as a witness; and

(b) The evidence is offered to prove such prior state of mind, emotion, or physical sensation when it is itself an issue in the action and the evidence is not offered to prove any fact other than such state of mind, emotion, or physical sensation.

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Section 1250 forbids the use of a statement of memory or belief to prove the fact remembered or believed. Section 1251, however, permits a statement of memory or belief of a past mental or physical state to be used to prove the previous mental or physical state when the previous mental or physical state is itself an issue in the case. If the past mental or physical state is to be used merely as circumstantial evidence of some other fact, the limitation in Section 1250 still applies and the statement of the past mental state is inadmissible hearsay.

The rule stated in Section 1251 is consistent with the California case law to the extent that it permits a statement of a prior mental state to be used as evidence of that mental state. See, e.g. People v. One 1948 Chevrolet Conv. Coupe, 45 Cal.2d 613, 290 P.2d 538 (1955) (statement of prior knowledge admitted to prove such knowledge); Kelly v. Bank of America, 112 Cal.App.2d 388, 246 P.2d 92 (1952) (statement of previous intent to retain title admitted to prove such intent). However, the California cases have held that statements of previous bodily conditions and symptoms are inadmissible to prove the existence of such conditions or symptoms, although they may be admitted as a basis for an expert's opinion. People v. Brown, 49 Cal.2d 577, 320 P.2d 5 (1958); Willoughby v. Zylstra, 5 Cal.App.2d 297, 42 P.2d 685 (1935). Section 1251 eliminates the distinction between statements of previous mental conditions and statements of previous physical sensations; it permits both to be admitted as evidence of the matters stated. Both kinds of statements are equally subjective, and there is no reason to believe that one kind is more unreliable than the other.

Section 1251 requires that the declarant be unavailable as a witness. Some California cases seem to indicate that the unavailability of the declarant is a necessary condition for the admission of his statements to prove a previous state of mind. See, e.g., Whitlow v. Durst, 20 Cal.2d 523, 524, 127 P.2d 530, 531 (1942) ("declarations of a decedent" admissible to show previous mental state); Kelly v. Bank of America, 112 Cal.App.2d 388, 246 P.2d 92 (1952). But other cases have admitted such statements without insisting on the declarant's unavailability. People v. One 1948 Chevrolet Conv. Coupe, 45 Cal.2d 613, 290 P.2d 538 (1955). Section 1251 requires a showing of the declarant's unavailability because the statements involved are narrations of past conditions. There is, therefore, a greater opportunity for the declarant to remember inaccurately or even to fabricate. Hence, Section 1251 permits such statements to be admitted only when the declarant's unavailability necessitates reliance upon his out-of-court statements.

A statement is not admissible under Section 1251 if the statement was made under circumstances indicating that the statement is not trustworthy. See Evidence Code 1252 and the Comment thereto. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1252. Restriction on admissibility of statement of mental or physical state

Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness.

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Section 1252 limits the admissibility of hearsay statements that would otherwise be admissible under Sections 1250 and 1251. If a statement of mental or physical state was made with a motive to misrepresent or to manufacture evidence, the statement is not sufficiently reliable to warrant its reception in evidence. The limitation expressed in Section 1252 has been held to be a condition of admissibility in some of the California cases. See, e.g., People v. Hamilton, 55 Cal.2d 881, 893, 895, 13 Cal.Rptr. 649, 656, 657, 362 P.2d 473, 480, 481 (1961); People v. Alcalde, 24 Cal.2d 177, 187, 148 P.2d 627, 632 (1944).

The Hamilton case mentions some additional limitations on the admissibility of statements offered in a criminal action to prove the declarant's mental statement. These additional limitations do not appear in the Evidence Code. In the Hamilton case, the court was concerned with a murder victim's statements that she was afraid of the accused, that the accused had threatened to kill her, and that the accused had beaten her. The statements were ostensibly offered to prove that the victim feared the accused and, therefore, to cast doubt on the accused's testimony that the victim had invited him to her house on the night of the murder. As the case was tried, however, the victim's declarations were used repeatedly in argument as a basis for the prosecution's claim that the beatings actually occurred, that the threats were actually made, and that the threats were carried out in the murder.

The court said that "testimony as to the 'state of mind' of the declarant ... is admissible, but only when such testimony refers to threats as to future conduct on the part of the accused ... and when [such declarations] show primarily the then state of mind of the declarant and not the state of mind of the accused. But ... such testimony is not admissible if it refers solely to alleged past conduct on the part of the accused." 55 Cal.2d at 893–894, 13 Cal.Rptr. at 656, 362 P.2d at 480.

These additional limitations on the admissibility of state of mind evidence are not mentioned in the Evidence Code for two reasons. First, they are confusing and contradictory: The declarations are inadmissible if they refer to past conduct of the accused; nevertheless, they are admissible "only" when they refer to his past conduct, i.e., his threats. The declarations, to be admissible, must show primarily the state of mind of the declarant and not the state of mind of the accused; nevertheless, such declarations are admissible "only" if they refer to the accused's statements of his state of mind, i.e., his intent to do future harm to the victim.

Second, these additional limitations are unnecessary. Section 1200 makes it clear that statements of past events cannot be used to prove those events unless they fall within an exception to the hearsay rule; and Sections 1250 and 1251 make it clear that statements of a declarant's past state of mind may be used to prove only that state of mind and no other fact. The real problem in the Hamilton case was the fact that much of the evidence was offered ostensibly not as hearsay but as circumstantial evidence of the victim's fear (see Section 1200 and the Comment thereto); but the prosecution endeavored nevertheless to have the jury consider the evidence as hearsay evidence, i.e., as evidence that the events related actually occurred. Evidence Code Section 352 provides the judge with ample power to exclude evidence of this sort where its prejudicial effect outweighs its probative value. But, under Section 352, the judge must weigh the need for the evidence against the danger of its misuse in each case. The Evidence Code does not freeze the courts to the arbitrary and contradictory standards mentioned in the Hamilton case for determining when prejudicial effect outweighs probative value. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1253. Statements for purposes of medical diagnosis or treatment; contents of statement; child abuse or neglect; age limitations

Subject to Section 1252, evidence of a statement is not made inadmissible by the hearsay rule if the statement was made for purposes of medical diagnosis or treatment and describes medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. This section applies only to a statement made by a victim who is a minor at the time of the proceedings, provided the statement was made when the victim was under the age of 12 describing any act, or attempted act, of child abuse or neglect. "Child abuse" and "child neglect," for purposes of this section, have the meanings provided in subdivision (c) of Section 1360. In addition, "child abuse" means any act proscribed by Chapter 5 (commencing with Section 281) of Title 9 of Part 1 of the Penal Code committed against a minor.

ARTICLE 6. STATEMENTS RELATING TO WILLS AND TO CLAIMS AGAINST ESTATES

§ 1260. Statements concerning declarant's will or revocable trust

(a) Except as provided in subdivision (b), evidence of any of the following statements made by a declarant who is unavailable as a witness is not made inadmissible by the hearsay rule:

(1) That the declarant has or has not made a will or established or amended a revocable trust.

(2) That the declarant has or has not revoked his or her will, revocable trust, or an amendment to a revocable trust.

(3) That identifies the declarant's will, revocable trust, or an amendment to a revocable trust.

(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances that indicate its lack of trustworthiness.

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Section 1260 codifies an exception recognized in California case law. Estate of Morrison, 198 Cal. 1, 242 Pac. 939 (1926); Estate of Thompson, 44 Cal.App.2d 774, 112 P.2d 937 (1941). The section is, of course, subject to the provisions of Probate Code Sections 350 and 351 which relate to the establishment of a lost or destroyed will.

The limitation in subdivision (b) is not mentioned in the few court decisions involving this exception. The limitation is desirable, however, to assure the reliability of the hearsay that is admissible under this section. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1261. Statement of decedent offered in action against his estate

(a) Evidence of a statement is not made inadmissible by the hearsay rule when offered in an action upon a claim or demand against the estate of the declarant if the statement was made upon the personal knowledge of the declarant at a time when the matter had been recently perceived by him and while his recollection was clear.

(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.

LAW REVISION COMMISSION COMMENT

The dead man statute (subdivision 3 of Section 1880 of the Code of Civil Procedure) prohibits a party who sues on a claim against a decedent's estate from testifying to any fact occurring prior to the decedent's death. The theory apparently underlying the statute is that it would be unfair to permit the surviving claimant to testify to such facts when the decedent is precluded by his death from doing so. To balance the positions of the parties, the living may not speak because the dead cannot.

The dead man statute operates unsatisfactorily. It prohibits testimony concerning matters of which the decedent had no knowledge and, hence, to which he could not have testified even if he had survived. It operates unevenly since it does not prohibit testimony relating to claims under, as distinguished from claims against, the decedent's estate even though the effect of such a claim may be to frustrate the decedent's plan for the disposition of his property. See the Law Revision Commission's Comment to Code of Civil Procedure Section 1880 and 1 Cal.Law Revision Comm'n, Rep., Rec. & Studies, Recommendation and Study Relating to the Dead Man Statute at D–1 (1957). The dead man statute excludes otherwise relevant and competent evidence—even if it is the only available evidence—and frequently this forces the courts to decide cases with a minimum of information concerning the actual facts. See the Supreme Court's complaint in Light v. Stevens, 159 Cal. 288, 292, 113 Pac. 659, 660 (1911) ("Owing to the fact that the lips of one of the parties to the transaction are closed by death and those of the other party by the law, the evidence on this question is somewhat unsatisfactory."). Hence, the dead man statute is not continued in the Evidence Code.

Under the Evidence Code, the positions of the parties are balanced by throwing more light, not less, on the actual facts. Repeal of the dead man statute permits the claimant to testify without restriction. To balance this advantage, Section 1261 permits hearsay evidence of the decedent's statements to be admitted. Certain safeguards—i.e., personal knowledge, recent perception, and circumstantial evidence of trustworthiness—are included in the section to provide some protection for the party against whom the statements are offered, for he has no opportunity to test the hearsay by cross-examination. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

ARTICLE 7. BUSINESS RECORDS

§ 1270. A business

As used in this article, "a business" includes every kind of business, governmental activity, profession, occupation, calling, or operation of institutions, whether carried on for profit or not.

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This article restates and supersedes the Uniform Business Records as Evidence Act appearing in Sections 1953e through 1953h of the Code of Civil Procedure. The definition of "a business" in Section 1270 is substantially the same as that appearing in Code of Civil Procedure Section 1953e. A reference to "governmental activity" has been added to the Evidence Code definition to codify the decisions in cases holding the Uniform Act applicable to governmental records. See, e.g., Nichols v. McCoy, 38 Cal.2d 447, 240 P.2d 569 (1952); Fox v. San Francisco Unified School Dist., 111 Cal.App.2d 885, 245 P.2d 603 (1952).

The definition is sufficiently broad to encompass institutions not customarily thought of as businesses. For example, the baptismal and wedding records of a church would be admissible under the section to prove the events recorded. 5 Wigmore, Evidence § 1523 (3d ed. 1940). Cf. Evidence Code § 1315. [7 Cal.L.Rev.Comm. Reports 1 (1965)].

§ 1271. Admissible writings

Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:

(a) The writing was made in the regular course of a business;

(b) The writing was made at or near the time of the act, condition, or event;

(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and

(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

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Section 1271 is the business records exception to the hearsay rule. It is stated in language taken from the Uniform Business Records as Evidence Act (Sections 1953e–1953h of the Code of Civil Procedure) and from Rule 63(13) of the Uniform Rules of Evidence.

Section 1271 requires the judge to find that the sources of information and the method and time of preparation of the record "were such as to indicate its trustworthiness." Under the language of Code of Civil Procedure Section 1953f, the judge must determine that the sources of information and method and time of preparation "were such as to justify its admission." The language of Section 1271 is more accurate, for the cases hold that admission of a business record is not justified when there is no preliminary showing that the record is reliable or trustworthy. E.g., People v. Grayson, 172 Cal.App.2d 372, 341 P.2d 820 (1959) (hotel register rejected because "not shown to be true and complete").

"The chief foundation of the special reliability of business records is the requirement that they must be based upon the first-hand observation of someone whose job it is to know the facts recorded.... But if the evidence in the particular case discloses that the record was not based upon the report of an informant having the business duty to observe and report, then the record is not admissible under this exception, to show the truth of the matter reported to the recorder." McCormick, Evidence § 286 at 602 (1954), as quoted in MacLean v. City & County of San Francisco, 151 Cal.App.2d 133, 143, 311 P.2d 158, 164 (1957).

Applying this standard, the cases have rejected a variety of business records on the ground that they were not based on the personal knowledge of the recorder or of someone with a business duty to report to the recorder. Police accident and arrest reports are usually held inadmissible because they are based on the narrations of persons who have no business duty to report to the police. MacLean v. City & County of San Francisco, 151 Cal.App.2d 133, 311 P.2d 158 (1957); Hoel v. City of Los Angeles, 136 Cal.App.2d 295, 288 P.2d 989 (1955). They are admissible, however, to prove the fact of the arrest. Harris v. Alcoholic Bev. Con. Appeals Bd., 212 Cal.App.2d 106, 23 Cal.Rptr. 74 (1963). Similar investigative reports on the origin of fires have been held inadmissible because they were not based on personal knowledge. Behr v. County of Santa Cruz, 172 Cal.App.2d 697, 342 P.2d 987 (1959); Harrigan v. Chaperon, 118 Cal.App.2d 167, 257 P.2d 716 (1953).

Section 1271 will continue the law developed in these cases that a business report is admissible only if the sources of information and the time and method of preparation are such as to indicate its trustworthiness. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1272. Absence of entry in business records

Evidence of the absence from the records of a business of a record of an asserted act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the nonoccurrence of the act or event, or the nonexistence of the condition, if:

(a) It was the regular course of that business to make records of all such acts, conditions, or events at or near the time of the act, condition, or event and to preserve them; and

(b) The sources of information and method and time of preparation of the records of that business were such that the absence of a record of an act, condition, or event is a trustworthy indication that the act or event did not occur or the condition did not exist.

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Technically, evidence of the absence of a record may not be hearsay. Section 1272 removes any doubt that might otherwise exist concerning the admissibility of such evidence under the hearsay rule. It codifies existing case law. People v. Torres, 201 Cal.App.2d 290, 20 Cal.Rptr. 315 (1962). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

ARTICLE 8. OFFICIAL RECORDS AND OTHER OFFICIAL WRITINGS

§ 1280. Record by public employee

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 all of the following applies:

(a) The writing was made by and within the scope of duty of a public employee.

(b) The writing was made at or near the time of the act, condition, or event.

(c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

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Section 1280 restates the substance of and supersedes Sections 1920 and 1926 of the Code of Civil Procedure. Although Sections 1920 and 1926 declare unequivocally that entries in public records are prima facie evidence of the facts stated, "it has been held repeatedly that those sections cannot have universal literal application." Chandler v. Hibberd, 165 Cal.App.2d 39, 65, 332 P.2d 133, 149 (1958). In fact, the cases require the same showing of trustworthiness in regard to an official record as is required under the business records exception. Behr v. County of Santa Cruz, 172 Cal.App.2d 697, 342 P.2d 987 (1959); Hoel v. City of Los Angeles, 136 Cal.App.2d 295, 288 P.2d 989 (1955). Section 1280 continues the law declared in these cases by explicitly requiring the same showing of trustworthiness that is required in Section 1271. See the Comment to Section 1271.

The evidence that is admissible under this section is also admissible under Section 1271, the business records exception. However, Section 1271 requires a witness to testify as to the identity of the record and its mode of preparation in every instance. In contrast, Section 1280, as does existing law, permits the court to admit an official record or report without necessarily requiring a witness to testify as to its identity and mode of preparation if the court takes judicial notice or if sufficient independent evidence shows that the record or report was prepared in such a manner as to assure its trustworthiness. See, e.g., People v. Williams, 64 Cal. 87, 27 Pac. 939 (1883) (census report admitted, the court judicially noticing the statutes prescribing the method of preparing the report); Vallejo etc. R.R. v. Reed Orchard Co., 169 Cal. 545, 571, 147 Pac. 238, 250 (1915) (statistical report of state agency admitted, the court judicially noticing the statutory duty to prepare the report). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1281. Vital statistics record

Evidence of a writing made as a record of a birth, fetal death, or marriage is not made inadmissible by the hearsay rule if the maker was required by law to file the writing in a designated public office and the writing was made and filed as required by law.

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Section 1281 provides a hearsay exception for official reports concerning birth, death, and marriage. Official reports of such events occurring within California are now admissible under the provisions of Section 10577 of the Health and Safety Code. Section 1281 provides a broader exception which includes similar reports from other jurisdictions. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1282. Finding of presumed death by authorized federal employee

A written finding of presumed death made by an employee of the United States authorized to make such finding pursuant to the Federal Missing Persons Act (56 Stats. 143, 1092, and P.L. 408, Ch. 371, 2d Sess. 78th Cong.; 59 U.S.C. App. 1001–1016), as enacted or as heretofore or hereafter amended, shall be received in any court, office, or other place in this state as evidence of the death of the person therein found to be dead and of the date, circumstances, and place of his disappearance.

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Section 1282 restates and supersedes the provisions of Code of Civil Procedure Section 1928.1. The evidence made admissible under Section 1282 is limited to evidence of the fact of death and of the date, circumstances, and place of disappearance.

The determination by the federal employee of the date of the presumed death is a determination ordinarily made for the purpose of determining whether the pay of a missing person should be stopped and his name stricken from the payroll. The date so determined should not be given any consideration in the California courts since the issues involved in the California proceedings require determination of the date of death for a different purpose. Hence, Section 1282 does not make admissible the finding of the date of presumed death. On the other hand, the determination of the date, circumstances, and place of disappearance is reliable information that will assist the trier of fact in determining the date when the person died and is admissible under this section. Often the date of death may be inferred from the circumstances of the disappearance. See In re Thornburg's Estate, 186 Ore. 570, 208 P.2d 349 (1949); Lukens v. Camden Trust Co., 2 N.J.Super. 214, 62 A.2d 886 (Super.Ct.1948).

Section 1282 provides a convenient and reliable method of proof of death of persons covered by the Federal Missing Persons Act. See, e.g., In re Jacobsen's Estate, 208 Misc. 443, 143 N.Y.S.2d 432 (1955) (proof of death of 2–year–old dependent of serviceman where child was passenger on plane lost at sea). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1283. Record by federal employee that person is missing, captured, beleaguered, beseiged, detained, or dead

An official written report or record that a person is missing, missing in action, interned in a foreign country, captured by a hostile force, beleaguered by a hostile force, besieged by a hostile force, or detained in a foreign country against his will, or is dead or is alive, made by an employee of the United States authorized by any law of the United States to make such report or record shall be received in any court, office, or other place in this state as evidence that such person is missing, missing in action, interned in a foreign country, captured by a hostile force, beleaguered by a hostile force, besieged by a hostile force, or detained in a foreign country against his will, or is dead or is alive.

LAW REVISION COMMISSION COMMENT

Section 1283 restates and supersedes the provisions of Code of Civil Procedure Section 1928.2. The language of Section 1928.2 has been revised to reflect the 1953 and 1964 amendments to the Federal Missing Persons Act. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1284. Statement of absence of public record

Evidence of a writing made by the public employee who is the official custodian of the records in a public office, reciting diligent search and failure to find a record, is not made inadmissible by the hearsay rule when offered to prove the absence of a record in that office.

ARTICLE 9. FORMER TESTIMONY

§ 1290. Former testimony

As used in this article, "former testimony" means testimony given under oath in:

(a) Another action or in a former hearing or trial of the same action;

(b) A proceeding to determine a controversy conducted by or under the supervision of an agency that has the power to determine such a controversy and is an agency of the United States or a public entity in the United States;

(c) A deposition taken in compliance with law in another action; or

(d) An arbitration proceeding if the evidence of such former testimony is a verbatim transcript thereof.

LAW REVISION COMMISSION COMMENT

The purpose of Section 1290 is to provide a convenient term for use in the substantive provisions in the remainder of this article. It should be noted that depositions taken in another action are considered former testimony under Section 1290, and their admissibility is determined by Sections 1291 and 1292. The use of a deposition taken in the same action, however, is not covered by this article. Code of Civil Procedure Sections 2016–2036 deal comprehensively with the conditions and circumstances under which a deposition taken in a civil action may be used at the trial of the action in which the deposition was taken, and Penal Code Sections 1345 and 1362 prescribe the conditions for admitting the deposition of a witness that has been taken in the same criminal action. These sections will continue to govern the use of depositions in the action in which they are taken. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1291. Former testimony offered against party to former proceeding

(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and:

(1) The former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against the successor in interest of such person; or

(2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.

(b) The admissibility of former testimony under this section is subject to the same limitations and objections as though the declarant were testifying at the hearing, except that former testimony offered under this section is not subject to:

(1) Objections to the form of the question which were not made at the time the former testimony was given.

(2) Objections based on competency or privilege which did not exist at the time the former testimony was given.

§ 1292. Former testimony offered against person not a party to former proceeding

(a) Evidence of former testimony is not made inadmissible by the hearsay rule if:

(1) The declarant is unavailable as a witness;

(2) The former testimony is offered in a civil action; and

(3) The issue is such that the party to the action or proceeding in which the former testimony was given had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which the party against whom the testimony is offered has at the hearing.

(b) The admissibility of former testimony under this section is subject to the same limitations and objections as though the declarant were testifying at the hearing, except that former testimony offered under this section is not subject to objections based on competency or privilege which did not exist at the time the former testimony was given.

§ 1293. Former testimony by minor child complaining witness at preliminary examination

(a) Evidence of former testimony made at a preliminary examination by a minor child who was the complaining witness is not made inadmissible by the hearsay rule if:

(1) The former testimony is offered in a proceeding to declare the minor a dependent child of the court pursuant to Section 300 of the Welfare and Institutions Code.

(2) The issues are such that a defendant in the preliminary examination in which the former testimony was given had the right and opportunity to cross-examine the minor child with an interest and motive similar to that which the parent or guardian against whom the testimony is offered has at the proceeding to declare the minor a dependent child of the court.

(b) The admissibility of former testimony under this section is subject to the same limitations and objections as though the minor child were testifying at the proceeding to declare him or her a dependent child of the court.

(c) The attorney for the parent or guardian against whom the former testimony is offered or, if none, the parent or guardian may make a motion to challenge the admissibility of the former testimony upon a showing that new substantially different issues are present in the proceeding to declare the minor a dependent child than were present in the preliminary examination.

(d) As used in this section, "complaining witness" means the alleged victim of the crime for which a preliminary examination was held.

(e) This section shall apply only to testimony made at a preliminary examination on and after January 1, 1990.

§ 1294. Unavailable witnesses; prior inconsistent statements; preliminary hearing or prior proceeding

(a) The following evidence of prior inconsistent statements of a witness properly admitted in a preliminary hearing or trial of the same criminal matter pursuant to Section 1235 is not made inadmissible by the hearsay rule if the witness is unavailable and former testimony of the witness is admitted pursuant to Section 1291:

(1) A video recorded statement introduced at a preliminary hearing or prior proceeding concerning the same criminal matter.

(2) A transcript, containing the statements, of the preliminary hearing or prior proceeding concerning the same criminal matter.

(b) The party against whom the prior inconsistent statements are offered, at his or her option, may examine or cross-examine any person who testified at the preliminary hearing or prior proceeding as to the prior inconsistent statements of the witness.

ARTICLE 10. JUDGMENTS

§ 1300. Judgment of conviction of crime punishable as felony

Evidence of a final judgment adjudging a person guilty of a crime punishable as a felony is not made inadmissible by the hearsay rule when offered in a civil action to prove any fact essential to the judgment whether or not the judgment was based on a plea of nolo contendere.

LAW REVISION COMMISSION COMMENT

Analytically, a judgment that is offered to prove the matters determined by the judgment is hearsay evidence. Uniform Rules of Evidence, Rule 63(20) Comment (1953); Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article VIII. Hearsay Evidence), 6 Cal.Law Revision Comm'n, Rep., Rec. & Studies Appendix at 539–541 (1964). It is in substance a statement of the court that determined the previous action ("a statement that was made other than by a witness while testifying at the hearing") that is offered "to prove the truth of the matter stated." Evidence Code § 1200. Therefore, unless an exception to the hearsay rule is provided, a judgment would be inadmissible if offered in a subsequent action to prove the matters determined.

Of course, a judgment may, as a matter of substantive law, conclusively establish certain facts insofar as a party is concerned. Teitlebaum Furs, Inc. v. Dominion Ins. Co., 58 Cal.2d 601, 25 Cal.Rptr. 559, 375 P.2d 439 (1962); Bernhard v. Bank of America, 19 Cal.2d 807, 122 P.2d 892 (1942). The sections of this article do not purport to deal with the doctrines of res judicata and estoppel by judgment. These sections deal only with the evidentiary use of judgments in those cases where the substantive law does not require that the judgments be given conclusive effect.

Section 1300 provides an exception to the hearsay rule for a final judgment adjudging a person guilty of a crime punishable as a felony. Hence, if a plaintiff sues to recover a reward offered by the defendant for the arrest and conviction of a person who committed a particular crime, Section 1300 permits the plaintiff to use a judgment of conviction as evidence that the person convicted committed the crime. The exception does not, however, apply in criminal actions. Thus, Section 1300 does not permit the judgment to be used in a criminal action as evidence of the identity of the person who committed the crime or as evidence that the crime was committed.

Section 1300 will change the California law. Under existing law, a conviction of a crime is inadmissible as evidence in a subsequent action. Marceau v. Travelers' Ins. Co., 101 Cal. 338, 35 Pac. 856 (1894) (evidence of a murder conviction held inadmissible to prove the insured was intentionally killed); Burke v. Wells, Fargo & Co., 34 Cal. 60 (1867) (evidence of a robbery conviction held inadmissible to prove the identity of robber in an action to recover reward). The change, however, is desirable, for the evidence involved is peculiarly reliable. The seriousness of the charge assures that the facts will be thoroughly litigated, and the fact that the judgment must be based upon a determination that there was no reasonable doubt concerning the defendant's guilt assures that the question of guilt will be thoroughly considered.

Section 1300 applies to any crime punishable as a felony. The fact that a misdemeanor sentence is imposed does not affect the admissibility of the judgment of a conviction under this section. Cf. Penal Code § 17. The exclusion of judgments based on a plea of nolo contendere from the exception in Section 1300 is a reflection of the policy expressed in Penal Code Section 1016. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1301. Judgment against person entitled to indemnity

Evidence of a final judgment is not made inadmissible by the hearsay rule when offered by the judgment debtor to prove any fact which was essential to the judgment in an action in which he seeks to:

(a) Recover partial or total indemnity or exoneration for money paid or liability incurred because of the judgment;

(b) Enforce a warranty to protect the judgment debtor against the liability determined by the judgment; or

(c) Recover damages for breach of warranty substantially the same as the warranty determined by the judgment to have been breached.

LAW REVISION COMMISSION COMMENT

If a person entitled to indemnity, or if the obligee under a warranty contract, complies with certain conditions relating to notice and defense, the indemnitor or warrantor is conclusively bound by any judgment recovered. Civil Code § 2778 (5); Code Civ.Proc. § 1912; McCormick v. Marcy, 165 Cal. 386, 132 Pac. 449 (1913).

Where a judgment against an indemnitee or person protected by a warranty is not made conclusive on the indemnitor or warrantor, Section 1301 permits the judgment to be used as hearsay evidence in an action to recover on the indemnity or warranty. Section 1301 reflects the existing law relating to indemnity agreements. Civil Code § 2778(6). Section 1301 probably restates the law relating to warranties, too, but the law in that regard is not altogether clear. Erio City Iron Works v. Tatum, 1 Cal.App. 286, 82 Pac. 92 (1905). But see Peabody v. Phelps, 9 Cal. 213 (1858). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1302. Judgment determining liability of third person

When the liability, obligation, or duty of a third person is in issue in a civil action, evidence of a final judgment against that person is not made inadmissible by the hearsay rule when offered to prove such liability, obligation, or duty.

LAW REVISION COMMISSION COMMENT

Section 1302 expresses an exception contained in Code of Civil Procedure Section 1851. Ellsworth v. Bradford, 186 Cal. 316, 199 Pac. 335 (1921); Nordin v. Bank of America, 11 Cal.App.2d 98, 52 P.2d 1018 (1936). Evidence Code Sections 1302 and 1224 together restate and supersede the provisions of Code of Civil Procedure Section 1851. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

ARTICLE 11. FAMILY HISTORY

§ 1310. Statement concerning declarant's own family history

(a) Subject to subdivision (b), evidence of a statement by a declarant who is unavailable as a witness concerning his own birth, marriage, divorce, a parent and child relationship, relationship by blood or marriage, race, ancestry, or other similar fact of his family history is not made inadmissible by the hearsay rule, even though the declarant had no means of acquiring personal knowledge of the matter declared.

(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.

LAW REVISION COMMISSION COMMENT

Section 1310 provides a hearsay exception for a statement concerning the declarant's own family history. It restates in substance and supersedes Section 1870(4) of the Code of Civil Procedure. Section 1870(4), however, requires that the declarant be dead whereas unavailability of the declarant for any of the reasons specified in Section 240 makes the statement admissible under Section 1310.

The statement is not admissible if it was made under circumstances such as to indicate its lack of trustworthiness. The requirement is similar to the requirement of existing case law that the statement be made at a time when no controversy existed as to the matters stated. See, e.g., Estate of Walden, 166 Cal. 446, 137 Pac. 35 (1913); Estate of Nidever, 181 Cal.App.2d 367, 5 Cal.Rptr. 343 (1960). However, the language of Section 1310 permits the judge to consider the declarant's motives to tell the truth as well as his reasons to deviate therefrom in determining whether the statement is sufficiently trustworthy to be admitted as evidence. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1311. Statement concerning family history of another

(a) Subject to subdivision (b), evidence of a statement concerning the birth, marriage, divorce, death, parent and child relationship, race, ancestry, relationship by blood or marriage, or other similar fact of the family history of a person other than the declarant is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and:

(1) The declarant was related to the other by blood or marriage; or

(2) The declarant was otherwise so intimately associated with the other's family as to be likely to have had accurate information concerning the matter declared and made the statement (i) upon information received from the other or from a person related by blood or marriage to the other or (ii) upon repute in the other's family.

(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.

LAW REVISION COMMISSION COMMENT

Section 1311 provides a hearsay exception for a statement concerning the family history of another. Paragraph (1) of subdivision (a) restates in substance existing law as found in Section 1870(4) of the Code of Civil Procedure which it supersedes. Paragraph (2) is new to California law, but it is a sound extension of the present law to cover a situation where the declarant was a family housekeeper or doctor or so close a friend as to be included by the family in discussions of its family history.

There are two limitations on admissibility of a statement under Section 1311. First, a statement is admissible only if the declarant is unavailable as a witness within the meaning of Section 240. (Section 1870(4) requires that the declarant be deceased in order for his statement to be admissible.) Second, a statement is not admissible if it was made under circumstances such as to indicate its lack of trustworthiness. For a discussion of this requirement, see the Comment to Evidence Code § 1310. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1312. Entries in family records and the like

Evidence of entries in family Bibles or other family books or charts, engravings on rings, family portraits, engravings on urns, crypts, or tombstones, and the like, is not made inadmissible by the hearsay rule when offered to prove the birth, marriage, divorce, death, parent and child relationship, race, ancestry, relationship by blood or marriage, or other similar fact of the family history of a member of the family by blood or marriage.

LAW REVISION COMMISSION COMMENT

Section 1312 restates the substance of and supersedes the provisions of Code of Civil Procedure Section 1870(13). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1313. Reputation in family concerning family history

Evidence of reputation among members of a family is not made inadmissible by the hearsay rule if the reputation concerns the birth, marriage, divorce, death, parent and child relationship, race, ancestry, relationship by blood or marriage, or other similar fact of the family history of a member of the family by blood or marriage.

LAW REVISION COMMISSION COMMENT

Section 1313 restates the substance of and supersedes the provisions of Code of Civil Procedure Sections 1852 and 1870(11). See Estate of Connors, 53 Cal.App.2d 484, 128 P.2d 200 (1942); Estate of Newman, 34 Cal.App.2d 706, 94 P.2d 356 (1939). However, Section 1870(11) requires the family reputation in question to have existed "previous to the controversy." This qualification is not included in Section 1313 because it is unlikely that a family reputation on a matter of pedigree would be influenced by the existence of a controversy even though the declaration of an individual member of the family, covered in Sections 1310 and 1311, might be.

The family reputation admitted under Section 1313 is necessarily multiple hearsay. If, however, such reputation were inadmissible because of the hearsay rule, and if direct statements of pedigree were inadmissible because they are based on such reputation (as most of them are), the courts would be virtually helpless in determining matters of pedigree. See Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article VIII. Hearsay Evidence), 6 Cal.Law Revision Comm'n, Rep., Rec. & Studies Appendix at 548 (1964). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1314. Reputation in community concerning family history

Evidence of reputation in a community concerning the date or fact of birth, marriage, divorce, or death of a person resident in the community at the time of the reputation is not made inadmissible by the hearsay rule.

LAW REVISION COMMISSION COMMENT

Section 1314 restates what has been held to be existing law under Code of Civil Procedure Section 1963(30) with respect to proof of the fact of marriage. See People v. Vogel, 46 Cal.2d 798, 299 P.2d 850 (1956); Estate of Baldwin, 162 Cal. 471, 123 Pac. 267 (1912). However, Section 1314 has no counterpart in California law insofar as proof of the date or fact of birth, divorce, or death is concerned, since proof of such facts by reputation is presently limited to reputation in the family. See Estate of Heaton, 135 Cal. 385, 67 Pac. 321 (1902). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1315. Church records concerning family history

Evidence of a statement concerning a person's birth, marriage, divorce, death, parent and child relationship, race, ancestry, relationship by blood or marriage, or other similar fact of family history which is contained in a writing made as a record of a church, religious denomination, or religious society is not made inadmissible by the hearsay rule if:

(a) The statement is contained in a writing made as a record of an act, condition, or event that would be admissible as evidence of such act, condition, or event under Section 1271; and

(b) The statement is of a kind customarily recorded in connection with the act, condition, or event recorded in the writing.

LAW REVISION COMMISSION COMMENT

Church records generally are admissible as business records under the provisions of Section 1271. Under Section 1271, such records would be admissible to prove the occurrence of the church activity—the baptism, confirmation, or marriage—recorded in the writing. However, it is unlikely that Section 1271 would permit such records to be used as evidence of the age or relationship of the participants, for the business records act has been held to authorize business records to be used to prove only facts known personally to the recorder of the information or to other employees of the business. Patek & Co. v. Vineberg, 210 Cal.App.2d 20, 23, 26 Cal.Rptr. 293, 294 (1962) (hearing denied); People v. Williams, 187 Cal.App.2d 355, 9 Cal.Rptr. 722 (1960); Gough v. Security Trust & Sav. Bank, 162 Cal.App.2d 90, 327 P.2d 555 (1958).

Section 1315 permits church records to be used to prove certain additional information. Facts of family history, such as birth dates, relationships, marital histories, etc., that are ordinarily reported to church authorities and recorded in connection with the church's baptismal, confirmation, marriage, and funeral records may be proved by such records under Section 1315.

Section 1315 continues in effect and supersedes the provisions of Code of Civil Procedure Section 1919a without, however, the special and cumbersome authentication procedure specified in Code of Civil Procedure Section 1919b. Under Section 1315, church records may be authenticated in the same manner that other business records are authenticated. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1316. Marriage, baptismal and similar certificates

Evidence of a statement concerning a person's birth, marriage, divorce, death, parent and child relationship, race, ancestry, relationship by blood or marriage, or other similar fact of family history is not made inadmissible by the hearsay rule if the statement is contained in a certificate that the maker thereof performed a marriage or other ceremony or administered a sacrament and:

(a) The maker was a clergyman, civil officer, or other person authorized to perform the acts reported in the certificate by law or by the rules, regulations, or requirements of a church, religious denomination, or religious society; and

(b) The certificate was issued by the maker at the time and place of the ceremony or sacrament or within a reasonable time thereafter.

LAW REVISION COMMISSION COMMENT

Section 1316 provides a hearsay exception for marriage, baptismal, and similar certificates. This exception is somewhat broader than that found in Sections 1919a and 1919b of the Code of Civil Procedure (superseded by Evidence Code Sections 1315 and 1316). Sections 1919a and 1919b are limited to church records and, hence, with respect to marriages, to those performed by clergymen. Moreover, they establish an elaborate and detailed authentication procedure, whereas certificates made admissible by Section 1316 need meet only the general authentication requirement of Section 1401. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

ARTICLE 12. REPUTATION AND STATEMENTS CONCERNING COMMUNITY HISTORY, PROPERTY INTERESTS, AND CHARACTER

§ 1320. Reputation concerning community history

Evidence of reputation in a community is not made inadmissible by the hearsay rule if the reputation concerns an event of general history of the community or of the state or nation of which the community is a part and the event was of importance to the community.

LAW REVISION COMMISSION COMMENT

Section 1320 provides a wider rule of admissibility than does Code of Civil Procedure Section 1870(11) which it supersedes in part. Section 1870 provides in relevant part that proof may be made of "common reputation existing previous to the controversy, respecting facts of a public or general interest more than thirty years old." The 30–year limitation is essentially arbitrary. The important question would seem to be whether a community reputation on the matter involved exists; its age would appear to go more to its venerability than to its truth. Nor is it necessary to include in Section 1320 the requirement that the reputation existed previous to controversy. It is unlikely that a community reputation respecting an event of general history would be influenced by the existence of a controversy. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1321. Reputation concerning public interest in property

Evidence of reputation in a community is not made inadmissible by the hearsay rule if the reputation concerns the interest of the public in property in the community and the reputation arose before controversy.

LAW REVISION COMMISSION COMMENT

Section 1321 preserves the rule in Simons v. Inyo Cerro Gordo Co., 48 Cal.App. 524, 192 Pac. 144 (1920). It does not require, however, that the reputation be more than 30 years old; it requires merely that the reputation arose before there was a controversy concerning the matter. See the Comment to Section 1320. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1322. Reputation concerning boundary or custom affecting land

Evidence of reputation in a community is not made inadmissible by the hearsay rule if the reputation concerns boundaries of, or customs affecting, land in the community and the reputation arose before controversy.

LAW REVISION COMMISSION COMMENT

Section 1322 restates the substance of existing law as found in Code of Civil Procedure Section 1870(11) which it supersedes in part. See Muller v. So. Pac. Branch Ry., 83 Cal. 240, 23 Pac. 265 (1890); Ferris v. Emmons, 214 Cal. 501, 6 P.2d 950 (1931). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1323. Statement concerning boundary

Evidence of a statement concerning the boundary of land is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and had sufficient knowledge of the subject, but evidence of a statement is not admissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.

LAW REVISION COMMISSION COMMENT

Section 1323 codifies existing law found in such cases as Morton v. Folger, 15 Cal. 275 (1860), and Morcom v. Baiersky, 16 Cal.App. 480, 117 Pac. 560 (1911). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1324. Reputation concerning character

Evidence of a person's general reputation with reference to his character or a trait of his character at a relevant time in the community in which he then resided or in a group with which he then habitually associated is not made inadmissible by the hearsay rule.

LAW REVISION COMMISSION COMMENT

Section 1324 codifies a well-settled exception to the hearsay rule. See, e.g., People v. Cobb, 45 Cal.2d 158, 287 P.2d 752 (1955). Of course, character evidence is admissible only when the question of character is material to the matter being litigated. The only purpose of Section 1324 is to declare that reputation evidence as to character or a trait of character is not inadmissible under the hearsay rule. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

ARTICLE 13. DISPOSITIVE INSTRUMENTS AND ANCIENT WRITINGS

§ 1330. Recitals in writings affecting property

Evidence of a statement contained in a deed of conveyance or a will or other writing purporting to affect an interest in real or personal property is not made inadmissible by the hearsay rule if:

(a) The matter stated was relevant to the purpose of the writing;

(b) The matter stated would be relevant to an issue as to an interest in the property; and

(c) The dealings with the property since the statement was made have not been inconsistent with the truth of the statement.

LAW REVISION COMMISSION COMMENT

Section 1330 restates the substance of existing California law relating to recitals in dispositive instruments. Although language in some cases appears to require that the dispositive instrument be ancient, cases may be found in which recitals in dispositive instruments have been admitted without regard to the age of the instrument. See Russell v. Langford, 135 Cal. 356, 67 Pac. 331 (1902) (recital in will); Pearson v. Pearson, 46 Cal. 609 (1873) (recital in will); Culver v. Newhart, 18 Cal.App. 614, 123 Pac. 975 (1912) (bill of sale). There is a sufficient likelihood that the statements made in a dispositive document, when related to the purpose of the document, will be true to warrant the admissibility of such documents without regard to their age. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1331. Recitals in ancient writings

Evidence of a statement is not made inadmissible by the hearsay rule if the statement is contained in a writing more than 30 years old and the statement has been since generally acted upon as true by persons having an interest in the matter.

LAW REVISION COMMISSION COMMENT

Section 1331 clarifies the existing law relating to the admissibility of recitals in ancient documents by providing that such recitals are admissible under an exception to the hearsay rule. Code of Civil Procedure Section 1963(34) (superseded by the Evidence Code) provides that a document more than 30 years old is presumed genuine if it has been generally acted upon as genuine by persons having an interest in the matter. The Supreme Court has held that a document meeting this section's requirements is presumed to be genuine—presumed to be what it purports to be—but that the genuineness of the document imports no verity to the recitals contained therein. Gwin v. Calegaris, 139 Cal. 384, 389, 73 Pac. 851, 853 (1903). Recent cases decided by district courts of appeal, however, have held that the recitals in such a document are admissible to prove the truth of the facts recited. Estate of Nidever, 181 Cal.App.2d 367, 5 Cal.Rptr. 343 (1960); Kirkpatrick v. Tapo Oil Co., 144 Cal.App.2d 404, 301 P.2d 274 (1956). In these latter cases, the courts have not insisted that the hearsay statement itself be acted upon as true by persons with an interest in the matter; the evidence has been admitted merely upon a showing that the document containing the statement is genuine. The age of a document alone is not a sufficient guarantee of the trustworthiness of a statement contained therein to warrant the admission of the statement into evidence. Accordingly, Section 1331 makes it clear that the statement itself must have been generally acted upon as true for at least 30 years by persons having an interest in the matter. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

ARTICLE 14. COMMERCIAL, SCIENTIFIC, AND SIMILAR PUBLICATIONS

§ 1340. Publications relied upon as accurate in the course of business

Evidence of a statement, other than an opinion, contained in a tabulation, list, directory, register, or other published compilation is not made inadmissible by the hearsay rule if the compilation is generally used and relied upon as accurate in the course of a business as defined in Section 1270.

LAW REVISION COMMISSION COMMENT

Section 1340 codifies an exception that has been recognized by statute and by the courts in specific situations. See, e.g., Com.Code § 2724; Emery v. So. Cal. Gas Co., 72 Cal.App.2d 821, 165 P.2d 695 (1946); Christiansen v. Hollings, 44 Cal.App.2d 332, 112 P.2d 723 (1941). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1341. Publications concerning facts of general notoriety and interests

Historical works, books of science or art, and published maps or charts, made by persons indifferent between the parties, are not made inadmissible by the hearsay rule when offered to prove facts of general notoriety and interest.

LAW REVISION COMMISSION COMMENT

Section 1341 recodifies without substantive change Section 1936 of the Code of Civil Procedure. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

ARTICLE 15. DECLARANT UNAVAILABLE AS WITNESS

§ 1350. Unavailable declarant; hearsay rule

(a) In a criminal proceeding charging a serious felony, evidence of a statement made by a declarant is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness, and all of the following are true:

(1) There is clear and convincing evidence that the declarant's unavailability was knowingly caused by, aided by, or solicited by the party against whom the statement is offered for the purpose of preventing the arrest or prosecution of the party and is the result of the death by homicide or the kidnapping of the declarant.

(2) There is no evidence that the unavailability of the declarant was caused by, aided by, solicited by, or procured on behalf of, the party who is offering the statement.

(3) The statement has been memorialized in a tape recording made by a law enforcement official, or in a written statement prepared by a law enforcement official and signed by the declarant and notorized in the presence of the law enforcement official, prior to the death or kidnapping of the declarant.

(4) The statement was made under circumstances which indicate its trustworthiness and was not the result of promise, inducement, threat, or coercion.

(5) The statement is relevant to the issues to be tried.

(6) The statement is corroborated by other evidence which tends to connect the party against whom the statement is offered with the commission of the serious felony with which the party is charged. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

(b) If the prosecution intends to offer a statement pursuant to this section, the prosecution shall serve a written notice upon the defendant at least 10 days prior to the hearing or trial at which the prosecution intends to offer the statement, unless the prosecution shows good cause for the failure to provide that notice. In the event that good cause is shown, the defendant shall be entitled to a reasonable continuance of the hearing or trial.

(c) If the statement is offered during trial, the court's determination shall be made out of the presence of the jury. If the defendant elects to testify at the hearing on a motion brought pursuant to this section, the court shall exclude from the examination every person except the clerk, the court reporter, the bailiff, the prosecutor, the investigating officer, the defendant and his or her counsel, an investigator for the defendant, and the officer having custody of the defendant. Notwithstanding any other provision of law, the defendant's testimony at the hearing shall not be admissible in any other proceeding except the hearing brought on the motion pursuant to this section. If a transcript is made of the defendant's testimony, it shall be sealed and transmitted to the clerk of the court in which the action is pending.

(d) As used in this section, "serious felony" means any of the felonies listed in subdivision (c) of Section 1192.7 of the Penal Code or any violation of Section 11351, 11352, 11378, or 11379 of the Health and Safety Code.

(e) If a statement to be admitted pursuant to this section includes hearsay statements made by anyone other than the declarant who is unavailable pursuant to subdivision (a), those hearsay statements are inadmissible unless they meet the requirements of an exception to the hearsay rule.

ARTICLE 16. STATEMENTS BY CHILDREN UNDER THE AGE OF 12 IN CHILD NEGLECT AND ABUSE PROCEEDINGS

§ 1360. Statements describing an act or attempted act of child abuse or neglect; criminal prosecutions; requirements

(a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another, or describing any attempted act of child abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule if all of the following apply:

(1) The statement is not otherwise admissible by statute or court rule.

(2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability.

(3) The child either:

(A) Testifies at the proceedings.

(B) Is unavailable as a witness, in which case the statement may be admitted only if there is evidence of the child abuse or neglect that corroborates the statement made by the child.

(b) A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement.

(c) For purposes of this section, "child abuse" means an act proscribed by Section 273a, 273d, or 288.5 of the Penal Code, or any of the acts described in Section 11165.1 of the Penal Code, and "child neglect" means any of the acts described in Section 11165.2 of the Penal Code.

ARTICLE 17. PHYSICAL ABUSE

§ 1370. Threat of infliction of injury

(a) Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all of the following conditions are met:

(1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant.

(2) The declarant is unavailable as a witness pursuant to Section 240.

(3) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or proceeding shall be inadmissible under this section.

(4) The statement was made under circumstances that would indicate its trustworthiness.

(5) The statement was made in writing, was electronically recorded, or made to a physician, nurse, paramedic or to a law enforcement official.

(b) For purposes of paragraph (4) of subdivision (a), circumstances relevant to the issue of trustworthiness include, but are not limited to, the following:

(1) Whether the statement was made in contemplation of pending or anticipated litigation in which the declarant was interested.

(2) Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive.

(3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section.

(c) A statement is admissible pursuant to this section only if the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement.

§ 1380. Elder and Dependent Adults; statements by victims of abuse

(a) In a criminal proceeding charging a violation, or attempted violation, of Section 368 of the Penal Code, evidence of a statement made by a declarant is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness, as defined in subdivisions (a) and (b) of Section 240, and all of the following are true:

(1) The party offering the statement has made a showing of particularized guarantees of trustworthiness regarding the statement, the statement was made under circumstances which indicate its trustworthiness, and the statement was not the result of promise, inducement, threat, or coercion. In making its determination, the court may consider only the circumstances that surround the making of the statement and that render the declarant particularly worthy of belief.

(2) There is no evidence that the unavailability of the declarant was caused by, aided by, solicited by, or procured on behalf of, the party who is offering the statement.

(3) The entire statement has been memorialized in a videotape recording made by a law enforcement official, prior to the death or disabling of the declarant.

(4) The statement was made by the victim of the alleged violation.

(5) The statement is supported by corroborative evidence.

(6) The victim of the alleged violation is an individual who meets both of the following requirements:

(A) Was 65 years of age or older or was a dependent adult when the alleged violation or attempted violation occurred.

(B) At the time of any criminal proceeding, including, but not limited to, a preliminary hearing or trial, regarding the alleged violation or attempted violation, is either deceased or suffers from the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunction, to the extent that the ability of the person to provide adequately for the person's own care or protection is impaired.

(b) If the prosecution intends to offer a statement pursuant to this section, the prosecution shall serve a written notice upon the defendant at least 10 days prior to the hearing or trial at which the prosecution intends to offer the statement, unless the prosecution shows good cause for the failure to provide that notice. In the event that good cause is shown, the defendant shall be entitled to a reasonable continuance of the hearing or trial.

(c) If the statement is offered during trial, the court's determination as to the availability of the victim as a witness shall be made out of the presence of the jury. If the defendant elects to testify at the hearing on a motion brought pursuant to this section, the court shall exclude from the examination every person except the clerk, the court reporter, the bailiff, the prosecutor, the investigating officer, the defendant and his or her counsel, an investigator for the defendant, and the officer having custody of the defendant. Notwithstanding any other provision of law, the defendant's testimony at the hearing shall not be admissible in any other proceeding except the hearing brought on the motion pursuant to this section. If a transcript is made of the defendant's testimony, it shall be sealed and transmitted to the clerk of the court in which the action is pending.

§ 1390. Statements against parties involved in causing unavailability of declarant as witness

(a) Evidence of a statement is not made inadmissible by the hearsay rule if the statement is offered against a party that has engaged, or aided and abetted, in the wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

(b)(1) The party seeking to introduce a statement pursuant to subdivision (a) shall establish, by a preponderance of the evidence, that the elements of subdivision (a) have been met at a foundational hearing.

(2) The hearsay evidence that is the subject of the foundational hearing is admissible at the foundational hearing. However, a finding that the elements of subdivision (a) have been met shall not be based solely on the unconfronted hearsay statement of the unavailable declarant, and shall be supported by independent corroborative evidence.

(3) The foundational hearing shall be conducted outside the presence of the jury. However, if the hearing is conducted after a jury trial has begun, the judge presiding at the hearing may consider evidence already presented to the jury in deciding whether the elements of subdivision (a) have been met.

(4) In deciding whether or not to admit the statement, the judge may take into account whether it is trustworthy and reliable.

(c) This section shall apply to any civil, criminal, or juvenile case or proceeding initiated or pending as of January 1, 2011.

(d) This section shall remain in effect only until January 1, 2016, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2016, deletes or extends that date. If this section is repealed, the fact that it is repealed should it occur, shall not be deemed to give rise to any ground for an appeal or a postverdict challenge based on its use in a criminal or juvenile case or proceeding before January 1, 2016.

DIVISION 11. WRITINGS

CHAPTER 1. AUTHENTICATION AND PROOF OF WRITINGS

ARTICLE 1. REQUIREMENT OF AUTHENTICATION

§ 1400. Authentication

Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.

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Before any tangible object may be admitted into evidence, the party seeking to introduce the object must make a preliminary showing that the object is in some way relevant to the issues to be decided in the action. When the object sought to be introduced is a writing, this preliminary showing of relevancy usually entails some proof that the writing is authentic—i.e., that the writing was made or signed by its purported maker. Hence, this showing is normally referred to as "authentication" of the writing. But authentication, correctly understood, may involve a preliminary showing that the writing is a forgery or is a writing found in particular files regardless of its authorship. Cf. People v. Adamson, 118 Cal.App.2d 714, 258 P.2d 1020 (1953). When the requisite preliminary showing has been made, the judge admits the writing into evidence for consideration by the trier of fact. However, the fact that the judge permits the writing to be admitted in evidence does not necessarily establish the authenticity of the writing; all that the judge has determined is that there has been a sufficient showing of the authenticity of the writing to permit the trier of fact to find that it is authentic. The trier of fact independently determines the question of authenticity, and, if the trier of fact does not believe the evidence of authenticity, it may find that the writing is not authentic despite the fact that the judge has determined that it was "authenticated." See 7 Wigmore, Evidence §§ 2129–2135 (3d ed. 1940).

This chapter sets forth the rules governing this process of authentication. Sections 1400–1402 (Article 1) define and state the general requirement of authentication—either by evidence sufficient to sustain a finding of authenticity or by other means sanctioned by law. Sections 1410–1454 (Articles 2 and 3) set forth some of the means that may be used to authenticate certain kinds of writings. The operation and effect of these sections is explained in separate Comments relating to them.

Under Section 1400, as under existing law, a writing may be authenticated by the presentation of evidence sufficient to sustain a finding of its authenticity. See Verzan v. McGregor, 23 Cal. 339, 342–343 (1863). Under Section 1400, as under existing law, the authenticity of a particular writing also may be established by some means other than the introduction of evidence of authenticity. Thus, the authenticity of a writing may be established by stipulation or by the pleadings. See e.g., Code Civ.Proc. §§ 447 and 448. The requisite preliminary showing may also be supplied by a presumption. See, e.g., Evidence Code §§ 1450–1454, 1530. In some instances, a presumption of authenticity may also attach to a writing authenticated in a particular manner. See, e.g., Evidence Code § 643 (the ancient documents rule). Where a presumption applies, the trier of fact is required to find that the writing is authentic unless the requisite contrary showing is made. Evidence Code §§ 600, 604, 606. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1401. Authentication required

(a) Authentication of a writing is required before it may be received in evidence.

(b) Authentication of a writing is required before secondary evidence of its content may be received in evidence.

§ 1402. Authentication of altered writing

The party producing a writing as genuine which has been altered, or appears to have been altered, after its execution, in a part material to the question in dispute, must account for the alteration or appearance thereof. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he does that, he may give the writing in evidence, but not otherwise.

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Section 1402 restates and supersedes Code of Civil Procedure Section 1982. See Miller v. Luco, 80 Cal. 257, 265, 22 Pac. 195, 197 (1889); King v. Tarabino, 53 Cal.App. 157, 199 Pac. 890 (1921). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

ARTICLE 2. MEANS OF AUTHENTICATING AND PROVING WRITINGS

§ 1410. Article not exclusive

Nothing in this article shall be construed to limit the means by which a writing may be authenticated or proved.

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This article (Sections 1410–1421) lists many of the evidentiary means for authenticating writings and supersedes the existing statutory expressions of such means.

Section 1410 is included in this article in recognition of the fact that it would be impossible to specify all of the varieties of circumstantial evidence that may be sufficient in particular cases to sustain a finding of the authenticity of a writing. Hence, Section 1410 ensures that the means of authentication listed in this article or stated elsewhere in the codes will not be considered the exclusive means of authenticating writings. Although Section 1410 has no counterpart in previous legislation, the California courts have never considered the listing of certain means of authentication in the various California statutes as precluding reliance upon other means of authentication. See, e.g., People v. Ramsey, 83 Cal.App.2d 707, 189 P.2d 802 (1948) (authentication by evidence of possession); Geary St. etc. R.R. v. Campbell, 39 Cal.App. 496, 179 Pac. 453 (1919) (corporate stock record book authenticated by age, appropriate custody, and unsuspicious appearance). See also the Comments to Sections 1420 and 1421. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1410.5. Graffiti constitutes a writing; admissibility

(a) For purposes of this chapter, a writing shall include any graffiti consisting of written words, insignia, symbols, or any other markings which convey a particular meaning.

(b) Any writing described in subdivision (a), or any photograph thereof, may be admitted into evidence in an action for vandalism, for the purpose of proving that the writing was made by the defendant.

(c) The admissibility of any fact offered to prove that the writing was made by the defendant shall, upon motion of the defendant, be ruled upon outside the presence of the jury, and is subject to the requirements of Sections 1416, 1417, and 1418.

§ 1411. Subscribing witness' testimony unnecessary

Except as provided by statute, the testimony of a subscribing witness is not required to authenticate a writing.

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When Section 1940 of the Code of Civil Procedure was enacted in 1872, it stated the common law rule that a subscribing witness to a witnessed writing must be produced to authenticate the writing or his absence must be satisfactorily accounted for. See Stevens v. Irwin, 12 Cal. 306 (1859). Section 1940 was amended by the Code Amendments of 1873–74 to remove the requirement that the subscribing witness be produced. Cal.Stats.1873–74, Ch. 383, § 231 (Code Amdts., p. 386). Instead, three alternative methods of authenticating a writing were listed.

Section 1411 states directly what the 1873–74 amendment to Code of Civil Procedure Section 1940 stated indirectly—that the common law rule requiring the production of a subscribing witness to a witnessed writing is not the law in California unless a statute specifically so requires. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1412. Use of other evidence when subscribing witness' testimony required

If the testimony of a subscribing witness is required by statute to authenticate a writing and the subscribing witness denies or does not recollect the execution of the writing, the writing may be authenticated by other evidence.

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When enacted in 1872, Code of Civil Procedure Section 1941 stated a limitation on the common law rule requiring proof of witnessed writings by a subscribing witness. Section 1941 provided, in effect, that this rule did not prohibit the authentication of a witnessed writing by other evidence if the subscribing witness denied or did not remember the execution of the writing. Evidence Code Section 1412, which supersedes Code of Civil Procedure Section 1941, retains this limitation on the subscribing witness rule in those few cases, such as those involving wills, where a statute requires the testimony of a subscribing witness to authenticate a writing. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1413. Witness to the execution of a writing

A writing may be authenticated by anyone who saw the writing made or executed, including a subscribing witness.

§ 1414. Admission of authenticity; acting upon writing as authentic

A writing may be authenticated by evidence that:

(a) The party against whom it is offered has at any time admitted its authenticity; or

(b) The writing has been acted upon as authentic by the party against whom it is offered.

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Section 1414 restates and supersedes the provisions of Code of Civil Procedure Section 1942. Section 1942 is difficult to understand. It was amended in 1901 to make it more intelligible. Cal.Stats.1901, Ch. 102, § 480, p. 247. However, the code revision of which the 1901 amendment was a part was held unconstitutional because of technical defects in the title of the act and because the act embraced more than one subject. Lewis v. Dunne, 134 Cal. 291, 66 Pac. 478 (1901). Evidence Code Section 1414 is based on the 1901 amendment of Section 1942. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1415. Authentication by handwriting evidence

A writing may be authenticated by evidence of the genuineness of the handwriting of the maker.

§ 1416. Proof of handwriting by person familiar therewith

A witness who is not otherwise qualified to testify as an expert may state his opinion whether a writing is in the handwriting of a supposed writer if the court finds that he has personal knowledge of the handwriting of the supposed writer. Such personal knowledge may be acquired from:

(a) Having seen the supposed writer write;

(b) Having seen a writing purporting to be in the handwriting of the supposed writer and upon which the supposed writer has acted or been charged;

(c) Having received letters in the due course of mail purporting to be from the supposed writer in response to letters duly addressed and mailed by him to the supposed writer; or

(d) Any other means of obtaining personal knowledge of the handwriting of the supposed writer.

§ 1417. Comparison of handwriting by trier of fact

The genuineness of handwriting, or the lack thereof, may be proved by a comparison made by the trier of fact with handwriting (a) which the court finds was admitted or treated as genuine by the party against whom the evidence is offered or (b) otherwise proved to be genuine to the satisfaction of the court.

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Section 1417 is based on that portion of Code of Civil Procedure Section 1944 that permits the trier of fact to compare questioned handwriting with handwriting the court has found to be genuine. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1418. Comparison of writing by expert witness

The genuineness of writing, or the lack thereof, may be proved by a comparison made by an expert witness with writing (a) which the court finds was admitted or treated as genuine by the party against whom the evidence is offered or (b) otherwise proved to be genuine to the satisfaction of the court.

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Section 1418 is based on that portion of Code of Civil Procedure Section 1944 that permits a witness to compare questioned handwriting with handwriting the court has found to be genuine. However, Section 1418 applies to any form of writing, not just handwriting. This is in recognition of the fact that experts can now compare typewriting specimens and other forms of writing as accurately as they could compare handwriting specimens in 1872.

Although Code of Civil Procedure Section 1944 does not expressly require that the witness making the comparison be an expert witness (as Evidence Code Section 1418 does), the cases have nonetheless imposed this requirement. E.g., Spottiswood v. Weir, 80 Cal. 448, 22 Pac. 289 (1889). The witness' expertise may, of course, be derived from practical experience instead of from technical training. In re Newell's Estate, 75 Cal.App. 554, 243 Pac. 33 (1926) (experienced banker). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1419. Exemplars when writing is 30 years old

Where a writing whose genuineness is sought to be proved is more than 30 years old, the comparison under Section 1417 or 1418 may be made with writing purporting to be genuine, and generally respected and acted upon as such, by persons having an interest in knowing whether it is genuine.

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Section 1419 restates and supersedes the provisions of Code of Civil Procedure Section 1945. The apparent purpose of Section 1945, continued without substantive change in Evidence Code Section 1419, is to permit the judge to be satisfied with a lesser degree of proof of the authenticity of an exemplar when the writing offered in evidence is more than 30 years old. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1420. Authentication by evidence of reply

A writing may be authenticated by evidence that the writing was received in response to a communication sent to the person who is claimed by the proponent of the evidence to be the author of the writing.

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Section 1420 provides a method of authentication recognized in California case law but not previously reflected in California statutes. House Grain Co. v. Finerman & Sons, 116 Cal.App.2d 485, 253 P.2d 1034 (1953). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1421. Authentication by content

A writing may be authenticated by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing.

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Section 1421 provides a method of authentication recognized in California case law but not previously reflected in California statutes. Chaplin v. Sullivan, 67 Cal.App.2d 728, 734, 155 P.2d 368, 372 (1945). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

ARTICLE 3. PRESUMPTIONS AFFECTING ACKNOWLEDGED WRITINGS AND OFFICIAL

§ 1450. Classification of presumptions in article

The presumptions established by this article are presumptions affecting the burden of producing evidence.

LAW REVISION COMMISSION COMMENT

This article (Sections 1450–1454) lists several presumptions that may be used to authenticate particular kinds of writings. Section 1450 prescribes the effect of these presumptions. They require a finding of authenticity unless the adverse party produces evidence sufficient to sustain a finding that the writing in question is not authentic. See Evidence Code § 604 and the Comment thereto. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1451. Acknowledged writings

A certificate of the acknowledgment of a writing other than a will, or a certificate of the proof of such a writing, is prima facie evidence of the facts recited in the certificate and the genuineness of the signature of each person by whom the writing purports to have been signed if the certificate meets the requirements of Article 3 (commencing with Section 1180) of Chapter 4, Title 4, Part 4, Division 2 of the Civil Code.

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Section 1451 continues in effect and restates a method of authenticating private writings that is contained in Code of Civil Procedure Section 1948. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1452. Official seals

A seal is presumed to be genuine and its use authorized if it purports to be the seal of:

(a) The United States or a department, agency, or public employee of the United States.

(b) A public entity in the United States or a department, agency, or public employee of such public entity.

(c) A nation recognized by the executive power of the United States or a department, agency, or officer of such nation.

(d) A public entity in a nation recognized by the executive power of the United States or a department, agency, or officer of such public entity.

(e) A court of admiralty or maritime jurisdiction.

(f) A notary public within any state of the United States.

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Sections 1452 and 1453 eliminate the need for formal proof of the genuineness of certain official seals and signatures when such proof would otherwise be required by the general requirement of authentication.

Under existing law, formal proof of many of the signatures and seals mentioned in Sections 1452 and 1453 is not required because such signatures and seals are the subject of judicial notice. Code Civ.Proc. § 1875 (5), (6), (7), (8). (Section 1875 is superseded by Division 4 (Sections 450–460) of the Evidence Code.) The parties may not dispute a matter that has been judicially noticed. Code Civ.Proc. § 2102 (superseded by Evidence Code § 457). Hence, judicial notice of facts should be confined to matters concerning which there can be no reasonable dispute. The authenticity of writings purporting to be official writings should not be determined conclusively by the judge when there is serious dispute as to such authenticity. Therefore, Sections 1452 and 1453 provide that the official seals and signatures mentioned shall be presumed genuine and authorized until evidence is introduced sufficient to sustain a finding that they are not genuine or authorized. When there is such evidence disputing the authenticity of an official seal or signature, the trier of fact is required to determine the question of authenticity without regard to any presumption created by this section. See Evidence Code § 604 and the Comment thereto.

This procedure will dispense with the necessity for proof of authenticity when there is no real dispute as to such authenticity, but it will assure the parties the right to contest the authenticity of official writings when there is a real dispute as to such authenticity. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1453. Domestic official signatures

A signature is presumed to be genuine and authorized if it purports to be the signature, affixed in his official capacity, of:

(a) A public employee of the United States.

(b) A public employee of any public entity in the United States.

(c) A notary public within any state of the United States.

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See the Comment to Section 1452. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1454. Foreign official signatures

A signature is presumed to be genuine and authorized if it purports to be the signature, affixed in his official capacity, of an officer, or deputy of an officer, of a nation or public entity in a nation recognized by the executive power of the United States and the writing to which the signature is affixed is accompanied by a final statement certifying the genuineness of the signature and the official position of (a) the person who executed the writing or (b) any foreign official who has certified either the genuineness of the signature and official position of the person executing the writing or the genuineness of the signature and official position of another foreign official who has executed a similar certificate in a chain of such certificates beginning with a certificate of the genuineness of the signature and official position of the person executing the writing. The final statement may be made only by a secretary of an embassy or legation, consul general, consul, vice consul, consular agent, or other officer in the foreign service of the United States stationed in the nation, authenticated by the seal of his office.

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Section 1454 supersedes the somewhat complex procedure for authenticating foreign official writings that is contained in subdivision 8 of Code of Civil Procedure Section 1918. Section 1454 is based on a proposed amendment to Rule 44 of the Federal Rules of Civil Procedure that has been prepared by the Advisory Committee on Civil Rules, the Commission and Advisory Committee on International Rules of Judicial Procedure, and the Columbia Law School Project on International Procedure. Proposed Amendments to Rules of Civil Procedure for the United States District Courts with Advisory Committee's Notes (mimeo., Feb. 25, 1964). Rule 44 and the proposed amendment, however, deal only with the question of authenticating copies of foreign official writings. Section 1454 relates to the authentication of any foreign official writing, whether it be an original or a copy.

The procedure set forth in Section 1454 is necessary for the reason that a United States foreign service officer may not be able to certify to the official position and signature of a particular foreign official. Accordingly, this section permits the original signature to be certified by a higher foreign official, whose signature can in turn be certified by a still higher official, and such certifications can be continued in a chain until a foreign official is reached as to whom the United States foreign service officer has adequate information upon which to base his final certification. See, e.g., New York Life Ins. Co. v. Aronson, 38 F.Supp. 687 (W.D.Pa.1941).

See also the Comment to Section 1452. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

CHAPTER 2. SECONDARY EVIDENCE OF WRITINGS

ARTICLE 1. PROOF OF THE CONTENT OF A WRITING

§§ 1500 to 1511. Repealed by Stats.1998, c. 100 (S.B.177), § 1, operative Jan. 1, 1999

§ 1520. Content of writing; proof

The content of a writing may be proved by an otherwise admissible original.

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1998 Addition

Section 1520 continues former Section 1500 insofar as it permitted proof of the content of a writing by an original of the writing. See also Sections 1521 (Secondary Evidence Rule), 1522 (exclusion of secondary evidence in criminal action), 1523 (oral testimony of content of writing). [26 Cal.L.Rev.Comm. Reports 369 (1996)].

§ 1521. Secondary evidence rule

(a) The content of a writing may be proved by otherwise admissible secondary evidence. The court shall exclude secondary evidence of the content of writing if the court determines either of the following:

(1) A genuine dispute exists concerning material terms of the writing and justice requires the exclusion.

(2) Admission of the secondary evidence would be unfair.

(b) Nothing in this section makes admissible oral testimony to prove the content of a writing if the testimony is inadmissible under Section 1523 (oral testimony of the content of a writing).

(c) Nothing in this section excuses compliance with Section 1401 (authentication).

(d) This section shall be known as the "Secondary Evidence Rule."

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1998 Addition

Sections 1520 (proof of content of writing by original), 1521 (Secondary Evidence Rule), 1522 (exclusion of secondary evidence in criminal action), and 1523 (oral testimony of content of writing) replace the Best Evidence Rule and its exceptions. For background, see Best Evidence Rule, 26 Cal. L. Revision Comm'n Reports 369 (1996). Because of the breadth of the exceptions to the Best Evidence Rule, this reform is not a major departure from former law, but primarily a matter of clarification and simplification. Discovery principles remain unchanged.

Subdivision (a) makes secondary evidence generally admissible to prove the content of a writing. The nature of the evidence offered affects its weight, not its admissibility. The normal motivation of parties to support their cases with convincing evidence is a deterrent to introduction of unreliable secondary evidence. See also Section 412 (if party offers weaker and less satisfactory evidence despite ability to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust).

The mandatory exceptions set forth in subdivisions (a)(1) and (a)(2) provide further protection against unreliable secondary evidence. Those exceptions are modeled on the exceptions to former Section 1511 and to Rule 1003 of the Federal Rules of Evidence. Cases interpreting those statutes provide guidance in applying subdivisions (a)(1) and (a)(2). See, e.g., United States v. Sinclair, 74 F.3d 753, 760–61 (7th Cir. 1996) (admitting copies of expense account reports was not unfair); Ruberto v. Commissioner of Internal Revenue, 774 F.2d 61, 64 (2d Cir. 1985) (tax court did not err in excluding photocopies of canceled checks, "since problems in matching the copies of the backs of the checks with copies of the fronts made them somewhat suspect"); Amoco Production Co. v. United States, 619 F.2d 1383, 1391 (10th Cir. 1980) (upholding trial court's determination that "admission of the file copy would be unfair because the most critical part of the original conformed copy.... is not completely reproduced in the 'duplicate' "); People v. Garcia, 201 Cal. App. 3d 324, 330, 247 Cal. Rptr. 94 (1988) (claim of unfairness "must be based on substance, not mere speculation that the original might contain some relevant difference"). Courts may consider a broad range of factors, for example: (1) whether the proponent attempts to use the writing in a manner that could not reasonably have been anticipated, (2) whether the original was suppressed in discovery, (3) whether discovery conducted in a reasonably diligent (as opposed to exhaustive) manner failed to result in production of the original, (4) whether there are dramatic differences between the original and the secondary evidence (e.g., the original but not the secondary evidence is in color and the colors provide significant clues to interpretation), (5) whether the original is unavailable and, if so, why, and (6) whether the writing is central to the case or collateral. A classic circumstance for exclusion pursuant to subdivision (a)(2) is if the proponent destroyed the original with fraudulent intent or the doctrine of spoliation of evidence otherwise applies.

Subdivision (b) explicitly establishes that Section 1523 (oral testimony of the content of writing), not Section 1521, governs the admissibility of oral testimony to prove the content of a writing.

Subdivision (c) makes clear that like other evidence, secondary evidence is admissible only if it is properly authenticated. Under Section 1401, the proponent must not only authenticate the original writing, but must also establish that the proffered evidence is secondary evidence of the original. See B. Jefferson, Jefferson's Synopsis of California Evidence Law, 30.1, at 470–71 (1985). [26 Cal.L.Rev.Comm. Reports 369 (1996)].

§ 1522. Additional grounds for exclusion of secondary evidence

(a) In addition to the grounds for exclusion authorized by Section 1521, in a criminal action the court shall exclude secondary evidence of the content of a writing if the court determines that the original is in the proponent's possession, custody, or control, and the proponent has not made the original reasonably available for inspection at or before trial. This section does not apply to any of the following:

(1) A duplicate as defined in Section 260.

(2) A writing that is not closely related to the controlling issues in the action.

(3) A copy of a writing in the custody of a public entity.

(4) 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.

(b) In a criminal action, a request to exclude secondary evidence of the content of a writing, under this section or any other law, shall not be made in the presence of the jury.

LAW REVISION COMMISSION COMMENT

1998 Addition

Subdivision (a) of Section 1522 sets forth a mandatory exception applicable only in criminal cases, which are governed by narrower discovery rules than civil cases. See Section 130 ("criminal action" includes criminal proceedings). See also Penal Code §§ 1054–1054.7 (discovery in criminal cases). Section 1522 does not expand discovery obligations, it simply conditions use of secondary evidence on making the original reasonably available for inspection if the proponent has it. In determining whether the proponent of secondary evidence has made the original "reasonably available," the court should examine specific circumstances, such as the time, place, and manner of allowing inspection. The concept is fluid, not rigid. For example, making the original available moments before using secondary evidence may in general suffice if a defendant is rebutting a surprise contention, but not if the prosecution is presenting its case in chief. Similarly, what constitutes reasonable access to computer evidence may vary from system to system.

The exceptions in subdivisions (a)(1)–(a)(4) are drawn from exceptions to the former Best Evidence Rule (former Section 1500). Subdivision (a)(1) is drawn from former Section 1511. Subdivision (a)(2) is drawn from former Section 1504. Subdivision (a)(3) is drawn from former Section 1506. Subdivision (a)(4) is drawn from former Section 1507.

Subdivision (b) continues the requirement of the second sentence of former Section 1503(a), but applies it to all requests for exclusion of secondary evidence in a criminal trial.

See also Sections 1520 (proof of content of writing by original), 1521 (Secondary Evidence Rule), and 1523 (oral testimony of content of writing). [26 Cal.L.Rev.Comm. Reports 369 (1996)].

§ 1523. Oral testimony of the content of a writing; admissibility

(a) Except as otherwise provided by statute, oral testimony is not admissible to prove the content of a writing.

(b) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the proponent does not have possession or control of a copy of the writing and the original is lost or has been destroyed without fraudulent intent on the part of the proponent of the evidence.

(c) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the proponent does not have possession or control of the original or a copy of the writing and either of the following conditions is satisfied:

(1) Neither the writing nor a copy of the writing was reasonably procurable by the proponent by use of the court's process or by other available means.

(2) The writing is not closely related to the controlling issues and it would be inexpedient to require its production.

(d) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the writing consists of numerous accounts or other writings that cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole.

LAW REVISION COMMISSION COMMENT

1998 Addition

Section 1523 preserves former law governing the admissibility of oral testimony to prove the content of a writing. See former Sections 1500, 1501–1509.

Subdivision (a) is based on an assumption that oral testimony as to the content of a writing is typically less reliable than other proof of the content of a writing. For background, see Best Evidence Rule, 26 Cal. L. Revision Comm'n Reports 369 (1996).

Subdivision (b) continues former Sections 1501 and 1505 without substantive change as to oral testimony of the content of a writing that is lost or has been destroyed.

Subdivision (c)(1) continues former Sections 1502 and 1505 without substantive change as to oral testimony of the content of a writing that was not reasonably procurable. In effect, subdivision (c)(1) also continues former Sections 1503 and 1505 without substantive change as to oral testimony of the content of a writing that the opponent has, but failed to produce at the hearing despite being expressly or impliedly notified that it would be needed. Under such circumstances, the writing was not reasonably procurable. Finally, subdivision (c)(1) continues former Sections 1506–1508 without substantive change as to oral testimony of the content of a writing where (1) the writing is in the custody of a public entity and the proponent could not have obtained it or a copy of it in the exercise of reasonable diligence, or (2) the writing has been recorded in the public records, the record or a certified copy of the writing is made evidence of the writing by statute, and the proponent could not have obtained it or a copy of it in the exercise of reasonable diligence. Subdivision (c)(2) continues former Sections 1504 and 1505 without substantive change as to oral testimony of the content of a collateral writing.

Subdivision (d) continues former Section 1509 without substantive change as to oral testimony of a voluminous writing.

See Sections 1520 (proof of content of writing by original), 1521 (Secondary Evidence Rule), and 1522 (exclusion of secondary evidence in criminal action). [26 Cal.L.Rev.Comm. Reports 369 (1996)].

ARTICLE 2. OFFICIAL WRITINGS AND RECORDED WRITINGS

§ 1530. Copy of writing in official custody

(a) 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:

(1) The copy purports to be published by the authority of the nation or state, or public entity therein in which the writing is kept;

(2) The office in which the writing is kept is within the United States or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, 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

(3) The office in which the writing is kept is not within the United States or any other place described in paragraph (2) and the copy is attested as a correct copy of the writing or entry by a person having authority to make attestation. The attestation must be accompanied by a final statement certifying the genuineness of the signature and the official position of (i) the person who attested the copy as a correct copy or (ii) any foreign official who has certified either the genuineness of the signature and official position of the person attesting the copy or the genuineness of the signature and official position of another foreign official who has executed a similar certificate in a chain of such certificates beginning with a certificate of the genuineness of the signature and official position of the person attesting the copy. Except as provided in the next sentence, the final statement may be made only by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. Prior to January 1, 1971, the final statement may also be made by a secretary of an embassy or legation, consul general, consul, vice consul, consular agent, or other officer in the foreign service of the United States stationed in the nation in which the writing is kept, authenticated by the seal of his office. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown, (i) admit an attested copy without the final statement or (ii) permit the writing or entry in foreign custody to be evidenced by an attested summary with or without a final statement.

(b) The presumptions established by this section are presumptions affecting the burden of producing evidence.

LAW REVISION COMMISSION COMMENT

1965 Enactment

Section 1530 deals with three evidentiary problems. 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. Because this section is principally concerned with the use of a copy of a writing to prove the content of the original, it is located in the division relating to secondary evidence of writings.

Under existing California law, certain official records may be proved by copies purporting to have been published by official authority or by copies with attached certificates containing certain requisite seals and signatures. The rules are complex and detailed and appear for the most part in Article 2 (beginning with Section 1892) of Chapter 3, Title 2, Part IV of the Code of Civil Procedure.

Section 1530 substitutes for these rules a uniform rule that can be applied to all writings in official custody found within the United States and another rule applicable to all writings in official custody found outside the United States.

Subdivision (a)(1). Subdivision (a)(1) of Section 1530 provides that an official writing may be proved by a copy purporting to be published by official authority. Under Section 1918 of the Code of Civil Procedure, the acts and proceedings of the executive and legislature of any state, the United States, or a foreign government may be proved by documents and journals published by official authority. Subdivision (a)(1) in effect makes these provisions of Section 1918 applicable to all classes of official documents. This extension of the means of proving official documents will facilitate the proof of many official documents the authenticity of which is presumed (Evidence Code § 644) and is seldom subject to question.

Subdivision (a)(2) and (a)(3) generally. Paragraphs (2) and (3) of subdivision (a) of Section 1530 set forth the rules for proving the content of writings in official custody by attested or certified copies. A person who "attests" a writing merely affirms it to be true or genuine by his signature. Black, Law Dictionary (4th ed. 1951). Existing California statutes require certain writings to be "certified." Section 1923 of the Code of Civil Procedure (superseded by Evidence Code Section 1531) provides that the certificate affixed to a certified copy must state that the copy is a correct copy of the original, must be signed by the certifying officer, and must be under his seal of office, if he has one. Thus, the only difference between the words "attested" and "certified" is that the existing statutory definition of "certified" requires the use of a seal, if the authenticating officer has one, whereas the definition of "attested" does not. Section 1530 eliminates the requirement of the seal by the use of the word "attested." However, Section 1530 retains, in addition, the word "certified" because it is the more familiar term in California practice.

Subdivision (a)(2). Under existing law, copies of many records of the United States government and of the governments of sister states may be proved by a copy certified or attested by the custodian alone. See, e.g., Code Civ.Proc. §§ 1901 and 1918(1), (2), (3), (9); Corp.Code § 6600. Yet, other official writings must be certified or attested not only by the custodian but also by a higher official certifying the authority and signature of the custodian. In order to provide a uniform rule for the proof of all domestic official writings, subdivision (a)(2) extends the simpler and more expeditious procedure to all official writings within the United States.

Subdivision (a)(3). Under existing law, some foreign official records may be proved by a copy certified or attested by the custodian alone. See Code Civ.Proc. §§ 1901 and 1918(4). Yet, other copies of foreign official writings must be accompanied by three certificates: one executed by the custodian, another by a higher official certifying the authority and signature of the custodian, and a third by still another official certifying the signature and official position of the second official. See Code Civ.Proc. §§ 1906 and 1918(8).

For these complex rules, subdivision (a)(3) of Section 1530 substitutes a relatively simple and uniform procedure that is applicable to all classes of foreign official writings. Subdivision (a)(3) is based on a proposed amendment to Rule 44 of the Federal Rules of Civil Procedure that has been prepared by the Advisory Committee on Civil Rules, the Commission and Advisory Committee on International Rules of Judicial Procedure, and the Columbia Law School Project on International Procedure, Proposed Amendments to Rules of Civil Procedure for the United States District Courts with Advisory Committee's Notes (mimeo., Feb. 25, 1964).

Subdivision (a)(3) requires that the copy be attested as a correct copy by "a person having authority to make the attestation." In some foreign countries, the person with authority to attest a copy of an official writing is not necessarily the person with legal custody of the writing. See 2B Barron & Holtzoff, Federal Practice Procedure § 992 (Wright ed. 1961). In such a case, subdivision (a)(3) requires that the attester's signature and official position be certified by another official. If this is a United States foreign service officer stationed in the country, no further certificates are required. If a United States foreign service officer is not able to certify to the signature and official position of the attester, subdivision (a)(3) permits the attester's signature and official position to be certified by a higher foreign official, whose signature can in turn be certified by a still higher official. Such certifications can be continued in a chain until a foreign official is reached as to whom the United States foreign service officer has adequate information upon which to base his final certification. See, e.g., New York Life Ins. Co. v. Aronson, 38 F.Supp. 687 (W.D.Pa.1941).

Subdivision (b). Where evidence is introduced that is sufficient to sustain a finding that the copy is not a correct copy, the trier of fact is required to determine whether the copy is a correct copy without regard to the presumptions created by this section. See Evidence Code § 604 and the Comment thereto. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

1970 Amendment

Section 1530 of the Evidence Code is concerned with the use of a copy of a writing in official custody to prove the content of the original. Section 1530 was deficient insofar as it prescribed, in subdivision (a) (3), the procedure for proof of foreign official writings. Subdivision (a) (3) requires that the copy of the foreign official record be attested as a correct copy by "a person having authority to make the attestation." The subdivision further requires that the first attester's signature and his official position be certified by a higher foreign official, whose signature can in turn be certified by a still higher official. Under the section as it formerly read, such certifications could be continued in a chain until a foreign official was reached as to whom a United States foreign service officer "stationed in the nation in which the writing is kept" had adequate information upon which to base his final certification. In other words, to prove a copy of a foreign official record, it was necessary to have a certificate of a United States foreign service officer stationed in the nation in which the writing was kept.

In some situations, it was impossible to satisfy the basic requirement of subdivision (a) (3) of Section 1530 because there were no United States foreign service officials in the particular foreign country (such as East Germany) and, hence, there was no one who could make the certificate required by subdivision (a) (3). As a result, in some situations, it was extremely difficult and expensive or even impossible to establish such matters as birth, legitimacy, marriage, death, or a will.

The problem described above was particularly troublesome in the case of a foreign will because Probate Code Section 361 was amended at the 1969 session to provide that a copy of a foreign will (and the related documents concerning the establishment of proof of the will in the foreign country) can be admitted in California "if such copy or other evidence satisfies the requirements of Article 2 (commencing with Section 1530) of Chapter 2 of Division 11 of the Evidence Code."

When Section 1530 of the Evidence Code was drafted in 1964, the Commission had the benefit of a proposed amendment to Rule 44 of the Federal Rules of Civil Procedure and based subdivision (a) (3) on that proposed amendment. After the Evidence Code was enacted in 1965, Rule 44 was revised (in 1966) to provide for proof of foreign official records. In the revision of Rule 44 in 1966, the defect pointed out above was discovered and provision was made in Rule 44 to cover the problem.

Rule 44 (as revised in 1966) includes the following provision to deal with the East Germany type of case:

If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown, (i) admit an attested copy without final certification or (ii) permit the foreign official record to be evidenced by an attested summary with or without a final certification.

The Note of the Advisory Committee regarding revised Rule 44 states:

Although the amended rule will generally facilitate proof of foreign official records, it is recognized that in some situations it may be difficult or even impossible to satisfy the basic requirements of the rule. There may be no United States consul in a particular foreign country; the foreign officials may not cooperate; peculiarities may exist or arise hereafter in the law or practice of a foreign country. See United States v. Grabina, 119 F.2d 863 (2d Cir.1941); and, generally, Jones, International Judicial Assistance: Procedural Chaos and a Program for Reform, 62 Yale L.J. 515, 548–49 (1953). Therefore the final sentence of subdivision (a) (2) provides the court with discretion to admit an attested copy of a record without a final certification, or an attested summary of a record with or without a final certification. See Rep. of Comm. on Comparative Civ.Proc. & Prac., Proc. A.B.A., Sec. Int'l & Comp. L. 123, 130–31 (1952); Model Code of Evidence §§ 517, 519 (1942). This relaxation should be permitted only when it is shown that the party has been unable to satisfy the basic requirements of the amended rule despite his reasonable efforts. Moreover it is specially provided that the parties must be given a reasonable opportunity in these cases to examine into the authenticity and accuracy of the copy or summary.

Senate Bill No. 266 [Stats.1970, c. 41] adds the substance of the sentence of Rule 44 quoted above, making only those changes needed to conform the language of that sentence to the language used in Section 1530. The bill also adopts the language of Rule 44 which specifies the officers who can make the final certificate. The change made by adopting this language is to restrict the United States foreign service officers who can make the final certificate to certain specified responsible officers and to liberalize the provision by permitting "a diplomatic or consular official of the foreign country assigned or accredited to the United States" to make the final certificate. This latter conforming change achieves desirable conformity with Rule 44 and liberalizes the rule but at the same time assures that a responsible official will make the final certificate. [10 Cal.L.Rev.Comm. Reports 1022 (1970)]

§ 1531. Certification of copy for evidence

For the purpose of evidence, whenever a copy of a writing is attested or certified, the attestation or certificate must state in substance that the copy is a correct copy of the original, or of a specified part thereof, as the case may be.

LAW REVISION COMMISSION COMMENT

Section 1531 is based on the provisions of Section 1923 of the Code of Civil Procedure. The language has been modified to define the process of attestation as well as the process of certification. Since Section 1530 permits a writing to be attested or certified for purposes of evidence without the attachment of an official seal, Section 1531 omits any requirement of a seal. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1532. Official record of recorded writing

(a) The official record of a writing is prima facie evidence of the existence and content of the original recorded writing if:

(1) The record is in fact a record of an office of a public entity; and

(2) A statute authorized such a writing to be recorded in that office.

(b) The presumption established by this section is a presumption affecting the burden of producing evidence.

LAW REVISION COMMISSION COMMENT

Section 1530 authorizes the use of a copy of a writing in official custody to prove the content of that writing. When a writing has been recorded, Section 1530 merely permits a certified copy of the record to be used to prove the record, not the original recorded writing. Section 1532 permits the official record to be used to prove the content of the original recorded writing. However, under the provisions of Section 1401, the original recorded writing must be authenticated before the copy can be introduced. If the writing was executed by a public official, or if a certificate of acknowledgment or proof was attached to the writing, the original writing is presumed to be authentic and no further evidence of authenticity is required. Evidence Code §§ 1450, 1451, and 1453.

Where evidence is introduced that is sufficient to sustain a finding that the original writing is not authentic, the trier of fact is required to determine the authenticity of the original writing without regard to the presumption created by this section. See Evidence Code § 604 and the Comment thereto.

Code of Civil Procedure Section 1951 (superseded by Evidence Code Section 1600) is similar to Section 1532, but the Code of Civil Procedure section relates only to writings affecting property. Section 1532 extends the principle of the Code of Civil Procedure section to all recorded writings. There is no comparable provision in existing law. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

ARTICLE 3. PHOTOGRAPHIC COPIES AND PRINTED REPRESENTATIONS OF WRITINGS

§ 1550. Photographic copies made as business records

A nonerasable optical image reproduction provided that additions, deletions, or changes to the original document are not permitted by the technology, a photostatic, microfilm, microcard, miniature photographic, or other photographic copy or reproduction, or an enlargement thereof, of a writing is as admissible as the writing itself if the copy or reproduction was made and preserved as a part of the records of a business (as defined by Section 1270) in the regular course of that business. The introduction of the copy, reproduction, or enlargement does not preclude admission of the original writing if it is still in existence. A court may require the introduction of a hard copy printout of the document.

LAW REVISION COMMISSION COMMENT

Section 1550 continues in effect those provisions of the Uniform Photographic Copies of Business and Public Records as Evidence Act that are now found in Code of Civil Procedure Section 1953i.

Section 1550 omits the requirement, contained in Section 1953i of the Code of Civil Procedure, that the original writing be a business record. As long as the original writing is admissible under any exception to the hearsay rule, its trustworthiness is sufficiently assured; and the requirement that the photographic copy be made in the regular course of business sufficiently assures the trustworthiness of the copy. If the original is admissible not as an exception to the hearsay rule but as evidence of an ultimate fact in the case (e.g., a will or a contract), a photographic copy, the trustworthiness of which is sufficiently assured by the fact that it was made in the regular course of business, should be as admissible as the original. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1550.1 Admissibility of reproductions of files, records, writings, photographs, and fingerprints

Reproductions of files, records, writings, photographs, fingerprints or other instruments in the official custody of a criminal justice agency that were microphotographed or otherwise reproduced in a manner that conforms with the provisions of Section 11106.1, 11106.2, or 11106.3 of the Penal Code shall be admissible to the same extent and under the same circumstances as the original file, record, writing or other instrument would be admissible.

§ 1551. Photographic copies where original destroyed or lost

A print, whether enlarged or not, from a photographic film (including a photographic plate, microphotographic film, photostatic negative, or similar reproduction) of an original writing destroyed or lost after such film was taken or a reproduction from an electronic recording of video images on magnetic surfaces is admissible as the original writing itself if, at the time of the taking of such film or electronic recording, the person under whose direction and control it was taken attached thereto, or to the sealed container in which it was placed and has been kept, or incorporated in the film or electronic recording, a certification complying with the provisions of Section 1531 and stating the date on which, and the fact that, it was so taken under his direction and control.

§ 1552. Printed representation of computer information or computer programs

(a) A printed representation of computer information or a computer program is presumed to be an accurate representation of the computer information or computer program that it purports to represent. This presumption is a presumption affecting the burden of producing evidence. If a party to an action introduces evidence that a printed representation of computer information or computer program is inaccurate or unreliable, the party introducing the printed representation into evidence has the burden of proving, by a preponderance of evidence, that the printed representation is an accurate representation of the existence and content of the computer information or computer program that it purports to represent.

(b) Subdivision (a) shall not apply to computer-generated official records certified in accordance with Section 452.5 or 1530.

LAW REVISION COMMISSION COMMENT

1998 Addition

Subdivision (a) of Section 1552 continues former Section 1500.5(c) without substantive change, except that the reference to "best available evidence" is changed to "an accurate representation," due to the replacement of the Best Evidence Rule with the Secondary Evidence Rule. See Section 1521 Comment. See also Section 255 (accurate printout of computer data is an "original").

Subdivision (b) continues former Section 1500.5(d) without substantive change. [26 Cal.L.Rev.Comm. Reports 369 (1996)].

§ 1553. Printed representation of images stored on a video or digital medium

A printed representation of images stored on a video or digital medium is presumed to be an accurate representation of the images it purports to represent. This presumption is a presumption affecting the burden of producing evidence. If a party to an action introduces evidence that a printed representation of images stored on a video or digital medium is inaccurate or unreliable, the party introducing the printed representation into evidence has the burden of proving, by a preponderance of evidence, that the printed representation is an accurate representation of the existence and content of the images that it purports to represent.

LAW REVISION COMMISSION COMMENT

1998 Addition

Section 1553 continues the last three sentences of the second paragraph of former Section 1500.6 without substantive change, except that the reference to "best available evidence" is changed to "an accurate representation," due to the replacement of the Best Evidence Rule with the Secondary Evidence Rule. See Section 1521 Comment. [26 Cal.L.Rev.Comm. Reports 369 (1996)].

LAW REVISION COMMISSION COMMENT

Section 1551 restates without substantive change the provisions of Code of Civil Procedure Section 1920b. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

ARTICLE 4. PRODUCTION OF BUSINESS RECORDS

§ 1560. Compliance with subpoena duces tecum for business records

(a) As used in this article:

(1) "Business" includes every kind of business described in Section 1270.

(2) "Record" includes every kind of record maintained by a business.

(b) Except as provided in Section 1564, when a subpoena duces tecum is served upon the custodian of records or other qualified witness of a business in an action in which the business is neither a party nor the place where any cause of action is alleged to have arisen, and the subpoena requires the production of all or any part of the records of the business, it is sufficient compliance therewith if the custodian or other qualified witness delivers by mail or otherwise a true, legible, and durable copy of all of the records described in the subpoena to the clerk of the court or to another person described in subdivision (d) of Section 2026.010 of the Code of Civil Procedure, together with the affidavit described in Section 1561, within one of the following time periods:

(1) In any criminal action, five days after the receipt of the subpoena.

(2) In any civil action, within 15 days after the receipt of the subpoena.

(3) Within the time agreed upon by the party who served the subpoena and the custodian or other qualified witness.

(c) The copy of the records shall be separately enclosed in an inner envelope or wrapper, sealed, with the title and number of the action, name of witness, and date of subpoena clearly inscribed thereon; the sealed envelope or wrapper shall then be enclosed in an outer envelope or wrapper, sealed, and directed as follows:

(1) If the subpoena directs attendance in court, to the clerk of the court.

(2) If the subpoena directs attendance at a deposition, to the officer before whom the deposition is to be taken, at the place designated in the subpoena for the taking of the deposition or at the officer's place of business.

(3) In other cases, to the officer, body, or tribunal conducting the hearing, at a like address.

(d) Unless the parties to the proceeding otherwise agree, or unless the sealed envelope or wrapper is returned to a witness who is to appear personally, the copy of the records shall remain sealed and shall be opened only at the time of trial, deposition, or other hearing, upon the direction of the judge, officer, body, or tribunal conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at the trial, deposition, or hearing. Records that are original documents and that are not introduced in evidence or required as part of the record shall be returned to the person or entity from whom received. Records that are copies may be destroyed.

(e) As an alternative to the procedures described in subdivisions (b), (c), and (d), the subpoenaing party in a civil action may direct the witness to make the records available for inspection or copying by the party's attorney, the attorney's representative, or deposition officer as described in Section 2020.420 of the Code of Civil Procedure, at the witness' business address under reasonable conditions during normal business hours. Normal business hours, as used in this subdivision, means those hours that the business of the witness is normally open for business to the public. When provided with at least five business days' advance notice by the party's attorney, attorney's representative, or deposition officer, the witness shall designate a time period of not less than six continuous hours on a date certain for copying of records subject to the subpoena by the party's attorney, attorney's representative, or deposition officer. It shall be the responsibility of the attorney's representative to deliver any copy of the records as directed in the subpoena. Disobedience to the deposition subpoena issued pursuant to this subdivision is punishable as provided in Section 2020.240 of the Code of Civil Procedure.

LAW REVISION COMMISSION COMMENT

2005 Amendment

Section 1560 is amended to reflect nonsubstantive reorganization of the rules governing civil discovery. See 2004 Cal. Stat. ch. 182.

Section 1560 is also amended to delete language authorizing the judge to substitute for the clerk if there is no clerk. Every superior court has a clerk. See Gov't Code §§ 69840 (court clerk's powers, duties, and responsibilities), 71620 (court executive or administrative officer has authority of a court clerk). See also Code Civ. Proc. § 167 (judge may perform any act court clerk may perform).

Section 1560 is the same in substance as Code of Civil Procedure Section 1998, except for the clarifying definition of "hospital" added in subdivision (a). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1561. Affidavit accompanying records

(a) The records shall be accompanied by the affidavit of the custodian or other qualified witness, stating in substance each of the following:

(1) The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records.

(2) The copy is a true copy of all the records described in the subpoena duces tecum, or pursuant to subdivision (e) of Section 1560 the records were delivered to the attorney, the attorney's representative or deposition officer for copying at the custodian's or witness' place of business, as the case may be.

(3) The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event.

(4) The identity of the records.

(5) A description of the mode of preparation of the records.

(b) If the business has none of the records described, or only part thereof, the custodian or other qualified witness shall so state in the affidavit, and deliver the affidavit and those records that are available in one of the manners provided in Section 1560.

(c) Where the records described in the subpoena were delivered to the attorney or his or her representative or deposition officer for copying at the custodian's or witness' place of business, in addition to the affidavit required by subdivision (a), the records shall be accompanied by an affidavit by the attorney or his or her representative or deposition officer stating that the copy is a true copy of all the records delivered to the attorney or his or her representative or deposition officer for copying.

LAW REVISION COMMISSION COMMENT

Section 1561 restates without substantive change the provisions of Code of Civil Procedure Section 1998.1. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1562. Admissibility of affidavit and copy of records

If the original records would be admissible in evidence if the custodian or other qualified witness had been present and testified to the matters stated in the affidavit, and if the requirements of Section 1271 have been met, the copy of the records is admissible in evidence. The affidavit is admissible as evidence of the matters stated therein pursuant to Section 1561 and the matters so stated are presumed true. When more than one person has knowledge of the facts, more than one affidavit may be made. The presumption established by this section is a presumption affecting the burden of producing evidence.

§ 1563. One witness and mileage fee

(a) This article shall not be interpreted to require tender or payment of more than one witness fee and one mileage fee or other charge, to a witness or witness' business, unless there is an agreement to the contrary between the witness and the requesting party.

(b) All reasonable costs incurred in a civil proceeding by any witness which is not a party with respect to the production of all or any part of business records the production of which is requested pursuant to a subpoena duces tecum may be charged against the party serving the subpoena duces tecum.

(1) "Reasonable cost," as used in this section, shall include, but not be limited to, the following specific costs: ten cents ($0.10) per page for standard reproduction of documents of a size 8<sfr>1/2<efr> by 14 inches or less; twenty cents ($0.20) per page for copying of documents from microfilm; actual costs for the reproduction of oversize documents or the reproduction of documents requiring special processing which are made in response to a subpoena; reasonable clerical costs incurred in locating and making the records available to be billed at the maximum rate of twenty four dollars ($24) per hour per person, computed on the basis of six dollars ($6) per quarter hour or fraction thereof; actual postage charges; and the actual cost, if any, charged to the witness by a third person for the retrieval and return of records held offsite by that third person.

(2) The requesting party, or the requesting party's deposition officer shall not be required to pay those costs or any estimate thereof prior to the time the records are available for delivery pursuant to the subpoena, but the witness may demand payment of costs pursuant to this section simultaneous with actual delivery of the subpoenaed records, and until such time as payment is made, is under no obligation to deliver the records.

(3) The witness shall submit an itemized statement for the costs to the requesting party, or the requesting party's deposition officer, setting forth the reproduction and clerical costs incurred by the witness. Should the costs exceed those authorized in paragraph (1), or the witness refuses to produce an itemized statement of costs as required by paragraph (3) upon demand by the requesting party, or the requesting party's deposition officer, the witness shall furnish a statement setting forth the actions taken by the witness in justification of the costs.

(4) The requesting party may petition the court in which the action is pending to recover from the witness all or a part of the costs paid to the witness, or to reduce all or a part of the costs charged by the witness, pursuant to this subdivision, on the grounds that those costs were excessive. Upon the filing of the petition the court shall issue an order to show cause and from the time the order is served on the witness the court has jurisdiction over the witness. The court may hear testimony on the order to show cause and if it finds that the costs demanded and collected, or charged but not collected, exceed the amount authorized by this subdivision, it shall order the witness to remit to the requesting party, or reduce its charge to the requesting party by an amount equal to, the amount of the excess. In the event that the court finds the costs excessive and charged in bad faith by the witness, the court shall order the witness to remit the full amount of the costs demanded and collected, or excuse the requesting party from any payment of costs charged but not collected, and the court shall also order the witness to pay the requesting party the amount of the reasonable expenses incurred in obtaining the order including attorney's fees. If the court finds the costs were not excessive, the court shall order the requesting party to pay the witness the amount of the reasonable expenses incurred in defending the petition, including attorney's fees.

(5) If a subpoena is served to compel the production of business records and is subsequently withdrawn, or is quashed, modified or limited on a motion made other than by the witness, the witness shall be entitled to reimbursement pursuant to paragraph (1) for all costs incurred in compliance with the subpoena to the time that the requesting party has notified the witness that the subpoena has been withdrawn or quashed, modified or limited. In the event the subpoena is withdrawn or quashed, if those costs are not paid within 30 days after demand therefor, the witness may file a motion in the court in which the action is pending for an order requiring payment, and the court shall award the payment of expenses and attorney's fees in the manner set forth in paragraph (4).

(6) Where the records are delivered to the attorney, the attorney's representative or the deposition officer for inspection or photocopying at the witness' place of business, the only fee for complying with the subpoena shall not exceed fifteen dollars ($15), plus the actual cost, if any, charged to the witness by that third person for retrieval and return of records held offsite by the third person. If the records are retrieved from microfilm, the reasonable cost, as defined in paragraph (1), shall also apply.

(c) When the personal attendance of the custodian of a record or other qualified witness is required pursuant to Section 1564, in a civil proceeding, he or she shall be entitled to the same witness fees and mileage permitted in a case where the subpoena requires the witness to attend and testify before a court in which the action or proceeding is pending and to any additional costs incurred as provided by subdivision (b).

(Stats.1965, c. 299, § 2, operative Jan. 1, 1967. Amended by Stats.1972, c. 396, p. 719, § 1; Stats.1981, c. 1014, p. 3913, § 2; Stats.1982, c. 452, p. 1825, § 3; Stats.1986, c. 603, § 8; Stats. 1987, c. 19, § 3, eff. May 12, 1987; Stats.1997, c. 442 (A.B.758), § 17.)

§ 1564. Personal attendance of custodian and production of original records

The personal attendance of the custodian or other qualified witness and the production of the original records is not required unless, at the discretion of the requesting party, the subpoena duces tecum contains a clause which reads:

"The personal attendance of the custodian or other qualified witness and the production of the original records are required by this subpoena. The procedure authorized pursuant to subdivision (b) of Section 1560, and Sections 1561 and 1562, of the Evidence Code will not be deemed sufficient compliance with this subpoena."

LAW REVISION COMMISSION COMMENT

Section 1564 restates without substantive change the provisions of Code of Civil Procedure Section 1998.4. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1565. Service of more than one subpoena duces tecum

If more than one subpoena duces tecum is served upon the custodian of records or other qualified witness and the personal attendance of the custodian or other qualified witness is required pursuant to Section 1564, the witness shall be deemed to be the witness of the party serving the first such subpoena duces tecum.

LAW REVISION COMMISSION COMMENT

Section 1565 restates without substantive change the provisions of Code of Civil Procedure Section 1998.5. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1566. Applicability of article

This article applies in any proceeding in which testimony can be compelled.

LAW REVISION COMMISSION COMMENT

This section has no counterpart in the portion of the Code of Civil Procedure from which this article is taken. Section 1566 is intended to preserve the original effect of Code of Civil Procedure Sections 1998–1998.5 by removing Sections 1560–1565 from the limiting provisions of Section 300. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1567. Employee income and benefit information; forms completed by employer; support modification or termination proceedings

A completed form described in Section 3664 of the Family Code for income and benefit information provided by the employer may be admissible in a proceeding for modification or termination of an order for child, family, or spousal support if both of the following requirements are met:

(a) The completed form complies with Sections 1561 and 1562.

(b) A copy of the completed form and notice was served on the employee named therein pursuant to Section 3664 of the Family Code.

CHAPTER 3. OFFICIAL WRITINGS AFFECTING PROPERTY

§ 1600. Record of document affecting property interest

(a) The record of an instrument or other document purporting to establish or affect an interest in property is prima facie evidence of the existence and content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed if:

(1) The record is in fact a record of an office of a public entity; and

(2) A statute authorized such a document to be recorded in that office.

(b) The presumption established by this section is a presumption affecting the burden of proof.

LAW REVISION COMMISSION COMMENT

1965 Enactment

The sections in this chapter all relate to official writings affecting property. The provisions of some sections provide hearsay exceptions; other sections provide exceptions to the best evidence rule; still others provide authentication procedures.

Section 1600 is based on Code of Civil Procedure Section 1951, which it supersedes. It is similar to Section 1532 of the Evidence Code, which applies to all recorded writings, but it gives an added effect to the writings covered by its provisions. Under Section 1600, as under existing law, if an instrument purporting to affect an interest in property is recorded, a presumption of execution and delivery of the instrument arises. Thomas v. Peterson, 213 Cal. 672, 3 P.2d 306 (1931). [7 Cal.L.Rev.Comm. Reports 1 (1965)]

1967 Amendment

One effect of making the official record "prima facie evidence" is to create a rebuttable presumption. See Evidence Code § 602 ("A statute providing that a fact or group of facts is prima facie evidence of another fact establishes a rebuttable presumption."). The classification of this presumption as one affecting the burden of proof is consistent with the prior case law. See Thomas v. Peterson, 213 Cal. 672, 3 P.2d 306 (1931); DuBois v. Larke, 175 Cal.App.2d 737, 346 P.2d 830 (1959); Osterberg v. Osterberg, 68 Cal.App.2d 254, 156 P.2d 46 (1945). Such a classification tends to support the record title to property by requiring that the record title be sustained unless the party attacking it can actually prove its invalidity. See Evidence Code § 606 and Comment thereto.

The word "official," which modified "record," has been deleted as unnecessary in light of the requirements of paragraphs (1) and (2) of subdivision (a).

Record of deed to regents of university as conclusive evidence, see Education Code § 23259. [8 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1601. Proof of content of lost official record affecting property

(a) Subject to subdivisions (b) and (c), when in any action it is desired to prove the contents of the official record of any writing lost or destroyed by conflagration or other public calamity, after proof of such loss or destruction, the following may, without further proof, be admitted in evidence to prove the contents of such record:

(1) Any abstract of title made and issued and certified as correct prior to such loss or destruction, and purporting to have been prepared and made in the ordinary course of business by any person engaged in the business of preparing and making abstracts of title prior to such loss or destruction; or

(2) Any abstract of title, or of any instrument affecting title, made, issued, and certified as correct by any person engaged in the business of insuring titles or issuing abstracts of title to real estate, whether the same was made, issued, or certified before or after such loss or destruction and whether the same was made from the original records or from abstract and notes, or either, taken from such records in the preparation and upkeeping of its plant in the ordinary course of its business.

(b) No proof of the loss of the original writing is required other than the fact that the original is not known to the party desiring to prove its contents to be in existence.

(c) Any party desiring to use evidence admissible under this section shall give reasonable notice in writing to all other parties to the action who have appeared therein, of his intention to use such evidence at the trial of the action, and shall give all such other parties a reasonable opportunity to inspect the evidence, and also the abstracts, memoranda, or notes from which it was compiled, and to take copies thereof.

LAW REVISION COMMISSION COMMENT

Section 1601 restates without substantive change the provisions of Section 1855a of the Code of Civil Procedure. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1602. Repealed by Stats.1967, c. 650, p. 2008, § 10

§ 1603. Deed by officer in pursuance of court process

A deed of conveyance of real property, purporting to have been executed by a proper officer in pursuance of legal process of any of the courts of record of this state, acknowledged and recorded in the office of the recorder of the county wherein the real property therein described is situated, or the record of such deed, or a certified copy of such record, is prima facie evidence that the property or interest therein described was thereby conveyed to the grantee named in such deed. The presumption established by this section is a presumption affecting the burden of proof.

LAW REVISION COMMISSION COMMENT

1965 Enactment

Section 1603 restates without substantive change the provisions of Section 1928 of the Code of Civil Procedure. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

1967 Amendment

One effect of Section 1603 is to create a rebuttable presumption. See Evidence Code § 602 ("A statute providing that a fact or group of facts is prima facie evidence of another fact establishes a rebuttable presumption.").

Prior to the enactment in 1911 of Code of Civil Procedure Section 1928 (upon which Section 1603 of the Evidence Code is based), the recitals in a sheriff's deed, made pursuant to legal process, could not be used as evidence of the judgment, the execution, and the sale upon which the deed was based. The existence of the prior proceedings were required to be proved with independent evidence. Heyman v. Babcock, 30 Cal. 367, 370 (1866); Hihn v. Peck, 30 Cal. 280, 287–288 (1966). The enactment of the predecessor of Evidence Code Section 1603 had two effects. First, it obviated the need for such independent proof. See, e.g., Oakes v. Fernandez, 108 Cal.App.2d 168, 238 P.2d 641 (1951); Wagnor v. Blume, 71 Cal.App.2d 94, 161 P.2d 1001 (1945). See also Basye, Clearing Land Titles § 41 (1953). Second, it obviated the need for proof of a chain of title prior to the execution of the need. Krug v. Warden, 57 Cal.App. 563, 207 Pac. 696 (1922).

The classification of the presumption in Section 1603 as a presumption affecting the burden of proof is consistent with the classification of the similar and overlapping presumptions contained in Evidence Code Sections 664 (official duty regularly performed) and 1600 (official record of document affecting property). Like the presumption in Section 1600, the presumption in Section 1603 serves the purpose of supporting the record chain of title. [8 Cal.L.Rev.Comm. Reports 101 (1967)]

§ 1604. Certificate of purchase or of location of lands

A certificate of purchase, or of location, of any lands in this state, issued or made in pursuance of any law of the United States or of this state, is prima facie evidence that the holder or assignee of such certificate is the owner of the land described therein; but this evidence may be overcome by proof that, at the time of the location, or time of filing a preemption claim on which the certificate may have been issued, the land was in the adverse possession of the adverse party, or those under whom he claims, or that the adverse party is holding the land for mining purposes.

LAW REVISION COMMISSION COMMENT

Section 1604 restates without substantive change the provisions of Section 1925 of the Code of Civil Procedure. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

§ 1605. Authenticated Spanish title records

Duplicate copies and authenticated translations of original Spanish title papers relating to land claims in this state, derived from the Spanish or Mexican governments, prepared under the supervision of the Keeper of Archives, authenticated by the Surveyor–General or his successor and by the Keeper of Archives, and filed with a county recorder, in accordance with Chapter 281 of the Statutes of 1865–66, are admissible as evidence with like force and effect as the originals and without proving the execution of such originals.

LAW REVISION COMMISSION COMMENT

1965 Enactment

Section 1605 restates without substantive change the provisions of Section 1927.5 of the Code of Civil Procedure. [7 Cal.L.Rev.Comm. Reports 1 (1965)]

1967 Amendment

Chapter 281 of the Statutes of 1865–66 required the California Secretary of State to cause copies to be made of all of the original Spanish title papers relating to land claims in this state derived from the Spanish and Mexican governments that were on file in the office of the United States Surveyor–General for California. These copies, authenticated by the Surveyor–General and the Keeper of Archives in his office, were then required to be recorded in the offices of the county recorders of the concerned counties.

Section 5 of the 1865–66 statute, which is now codified as Section 1605 of the Evidence Code, provided that the recorded copies would be admissible "as prima facie evidence" without proving the execution of the originals. It is apparent that the original purpose of the section was to provide an exception to the best evidence rule—which would have required production of the original or an excuse for its nonproduction before the recorded copy could be admitted—and an exception to the rule, now expressed in Evidence Code Section 1401(b), requiring the authentication of the original document as a condition of the admissibility of the copy. Section 1605, therefore, has been revised to reflect this original purpose. [8 Cal.L.Rev.Comm. Reports 101 (1967)]