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Thomson Reuters

Chapter 10

THE BEST AND SECONDARY EVIDENCE RULES

Table of Sections

Sec.

10.00 Proof of Writings—Convergence and Divergence.

10.01 Exceptions to the Best Evidence Rule.

10.02 Functions of Judge and Jury Under the Best and Secondary Evidence Rules.

10.03 Additional Provisions Relating to the Proof of Writings.

10.04 The Completeness Doctrine.

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§ 10.00 Proof of Writings—Convergence and Divergence

FEDERAL RULES OF EVIDENCE

Rule 1001. Definitions That Apply to This Article

In this article:

(a) A "writing" consists of letters, words, numbers, or their equivalent set down in any form.

(b) A "recording" consists of letters, words, numbers, or their equivalent recorded in any manner.

(c) A "photograph" means a photographic image or its equivalent stored in any form.

(d) An "original" of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, "original" means any printout--or other output readable by sight--if it accurately reflects the information. An "original" of a photograph includes the negative or a print from it.

(e) A "duplicate" means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.

Rule 1002. Requirement of the Original

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

Rule 1003. Admissibility of Duplicates

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.

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CALIFORNIA EVIDENCE CODE

§ 250. Writing

"Writing" means handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, 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, and any record thereby created, regardless of the manner in which the record has been stored.

§ 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.

§ 1520. Content of writing; proof

The content of a writing may be proved by an otherwise admissible original.

§ 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."

§ 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.

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Comparative Note. Although the Federal Rules of Evidence continue to apply the Best Evidence Rule, California has replaced it with the Secondary Evidence Rule. Many of the provisions that apply to the Secondary Evidence Rule were derived from the California Best Evidence Rule. Because there was substantial overlap between the Federal and the California Best Evidence Rules, some of the surviving California Evidence Code sections are similar or identical to those found in the Federal Rules. These provisions are the focus of this section.

Unless certain exceptional circumstances exist, the Best Evidence Rule requires the content of a writing to be proved by the original writing and not by testimony recounting its contents or by a copy of the writing (Rule 1002). A major purpose of the rule is to minimize the possibility of misinterpretation that could occur if the production of the original writing were not required to prove its contents.

Rule 1001(3) and Evidence Code § 255 define an original as the writing itself or any counterpart intended to have the same effect by a person who executed or issued it. Thus, if the parties to a contract intend for the pink copy to serve as the original, that is the original for purposes of the Best Evidence Rule. The "original" of a photograph includes the negative or any print therefrom (Rule 1001(3), § 255). If information is stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the information accurately, is an "original."

Rule 1001(1) and Code § 250 also define writings broadly. Under the Code, for example, writings include "handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, 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, and any record thereby created, regardless of the manner in which the record has been stored."1

Since the concern of the Best Evidence Rule "is with getting the words or other contents before the court with accuracy and precision, * * * a counterpart serves equally as well as the original, if the counterpart is the product of a method which insures accuracy and genuineness."2 Accordingly, Rule 1003 provides that a "duplicate" can be offered in lieu of the original, unless a genuine question is raised about the original's authenticity or in the circumstances it would be unfair to admit the duplicate. Duplicates are admissible also in California but under a broader provision that subsumes the duplicate-original doctrine of the Rules by allowing a party in the first instance to offer secondary evidence of the original (§ 1521).

Rule 1004 and Code § 260 define a duplicate similarly. Under the Code, 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 re-recording, or by chemical reproduction, or by other equivalent technique(s) which accurately reproduces the original." Thus, a photograph of a police artist's sketch of a suspect can be offered in place of the sketch. But because of the possibility of error, manually produced copies, whether handwritten or typed, are not within the definition.

Although the Federal Rules of Evidence continue to apply the classic formulation of the Best Evidence Rule, in 1999 the California Legislature replaced the Best Evidence Rule with the Secondary Evidence Rule. Under § 1521(a), any secondary evidence of an original is as admissible as the original unless (1) a genuine dispute exists concerning material terms of the original writing and justice requires its exclusion, or (2) admission of the secondary evidence would be unfair. The Secondary Evidence Rule, however, does not relax the requirements of authentication.

In determining whether it would be unfair to admit a copy, California judges "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."3

Because discovery is narrower in California criminal cases than in civil cases, an additional hurdle must be cleared in criminal cases before secondary evidence can be admitted. Even if no genuine dispute exists about the terms of the original and even if it were fair to receive the secondary evidence, the trial judge nonetheless must exclude the evidence if the judge 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 the trial (§ 1522). This limitation, however, does not apply if the proponent is offering a duplicate.

A number of factors moved the California Legislature to give secondary evidence the same status as the original writing in proving the contents of a writing. Broad pretrial discovery gives civil litigants an opportunity to inspect the originals, thereby reducing the need to produce the originals in court to assure accuracy. Technological developments, especially the rise of facsimile transmission and electronic mail, pose unanticipated difficulties in ascertaining which document is the "original." Moreover, a party bent on creating fraudulent documents is not likely to be deterred by the rule, and insisting on the use of the original increases litigation costs unnecessarily.4

§ 10.01 Exceptions to the Best Evidence Rule

FEDERAL RULES OF EVIDENCE

Rule 1004. Admissibility of Other Evidence of Content

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:

(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;

(b) an original cannot be obtained by any available judicial process;

(c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or

(d) the writing, recording, or photograph is not closely related to a controlling issue.

Rule 1005. Copies of Public Records to Prove Content

The proponent may use a copy to prove the content of an official record--or of a document that was recorded or filed in a public office as authorized by law--if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.

Rule 1007. Testimony or Statement of a Party to Prove Content

The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. The proponent need not account for the original.

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CALIFORNIA EVIDENCE CODE

§ 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.

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Comparative Note.

Federal Rules. The original is not required if it has been lost or destroyed, unless the proponent lost or destroyed the original in bad faith (Rule 1004(1)). The original is not required if it cannot be obtained by available judicial process or procedure (Rule 1004(2)). The original is not required if at a time when the original was under the control of the opponent, the opponent was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing and the opponent does not produce the original at the hearing (Rule 1004(3)). The original is not required if it is not closely related to the controlling issues (Rule 1004(4)). As noted earlier, an original also is not required if the proponent offers a duplicate of the original (Rule 1003).

The Rules also provide that the contents of a writing may be proved by the testimony or deposition of the party against whom offered or by that party's written admission without accounting for the nonproduction of the original (Rule 1007).

The Rules do not express a preference for a copy of a private writing that is unavailable. They allow the proponent to prove the contents of the original by a copy or testimony if production of the original writing is excused.

The contents of an official record or of a document authorized to be recorded or filed and actually recorded or filed do not have to be proved by the original record or document (Rule 1005). In this instance, however, testimony is inadmissible and the proponent must offer a copy certified or testified to be correct, unless a copy cannot be obtained by the exercise of reasonable diligence.

California Code. The Secondary Evidence Rule eliminated the exceptions to California's old Best Evidence Rule. The Secondary Rule, however, retained the Code's preference for hard copies as opposed to testimony except in the following situations: (1) where the proponent does not have possession or control of a copy and the original is lost or has been destroyed without fraudulent intent on the part of the proponent, and (2) where the proponent does not have possession or control of the original or a copy and (a) neither the original nor the copy was reasonably procurable by the proponent by use of the court's process or other reasonable means or (b) the original is not closely related to the controlling issues and it would be inexpedient to require its production (§ 1523). Since copies of official records and documents authorized to be recorded or filed are generally available, copies, rather than testimony, must be offered to prove the contents of the originals.

§ 10.02 Functions of Judge and Jury Under the Best and Secondary Evidence Rules

FEDERAL RULES OF EVIDENCE

Rule 1008. Functions of the Court and Jury

Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines--in accordance with Rule 104(b)--any issue about whether:

(a) an asserted writing, recording, or photograph ever existed;

(b) another one produced at the trial or hearing is the original; or

(c) other evidence of content accurately reflects the content.

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CALIFORNIA EVIDENCE CODE

§ 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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Comparative Note.

Federal Rules. Under the Federal Best Evidence Rule, judges are required to exclude copies of writings unless the proponent persuades the judge by a preponderance of the evidence that non-production of the original writing is excused.1 For example, if the opponent objects to the introduction of a copy, the proponent must convince the judge by a preponderance of the evidence that the original has been lost or destroyed. The persuasion burden is placed on the proponent because the Best Evidence Rule embodies a public policy favoring the use of original writings to prove the contents of writings.

The Rules, however, recognize that in some instances the power given to judges to exclude secondary evidence can impinge on the role traditionally assigned to jurors in American trials. Take a contract dispute in which the opponent contests the proponent's claim that the original has been lost and objects to the introduction of a copy on the ground that no original contract ever existed. If the judge sustains the opponent's objection and excludes the copy, the ruling would result in a directed verdict for the opponent. To ensure that the jurors determine whether the original contract existed, Rule 1008 reserves that question for them. Similarly, Rule 1008 reserves for the jurors two additional questions—whether the exhibit offered by the proponent is the original of the writing and whether the exhibit correctly reflects the contents of the writing.

Judges, however, are given greater power to withhold duplicates from the jurors. Rule 1003 generally allows a party to offer a duplicate in lieu of the original writing. Since a duplicate is a counterpart produced by the same impression as the original, a counterpart should serve as well as the original in getting the words or other contents before the fact finder with accuracy and precision. But under Rule 1003, a federal judge may exclude a duplicate where "a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate."

California Evidence Code. Prior to its replacement by the Secondary Evidence Rule, California's Best Evidence Rule was in most ways identical with its federal counterpart. Like the Federal Rules, California's preference for an original to prove the contents of a writing was relaxed when the proponent offered a duplicate. Former California Evidence Code § 1511 allowed the use of duplicates to the same extent as Federal Rule 1003. It also gave California judges the same power Rule 1003 gives to federal judges to withhold duplicates from the jurors.

Section 1521 of the Secondary Evidence Rule replaced former § 1511. Section 1521 empowers a California judge to exclude secondary evidence when (1) a "genuine dispute exists concerning material terms of the writing and justice requires the exclusion" or (2) "admission of the secondary evidence would be unfair." Although the language of § 1521 is not identical with the language of Rule 1003, both provisions are designed to give judges the power to withhold duplicates from the jurors under similar circumstances.

§ 10.03 Additional Provisions Relating to the Proof of Writings

FEDERAL RULES OF EVIDENCE

Rule 1006. Summaries to Prove Content

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

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CALIFORNIA EVIDENCE CODE

§ 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.

§ 1550. Types of evidence as writing admissible as the writing itself

(a) If made and preserved as a part of the records of a business, as defined in Section 1270, in the regular course of that business, the following types of evidence of a writing are as admissible as the writing itself:

(1) A nonerasable optical image reproduction or any other reproduction of a public record by a trusted system, as defined in Section 12168.7 of the Government Code, if additions, deletions, or changes to the original document are not permitted by the technology.

(2) A photostatic copy or reproduction.

(3) A microfilm, microcard, or miniature photographic copy, reprint, or enlargement.

(4) Any other photographic copy or reproduction, or an enlargement thereof.

(b) The introduction of evidence of a writing pursuant to subdivision (a) 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.

§ 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.

§ 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 which are original documents and which are not introduced in evidence or required as part of the record shall be returned to the person or entity from whom received. Records which 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.

§ 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.

§ 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.

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Comparative Note.

Summaries. The admission of summaries of the contents of voluminous books, records, and other documents by definition violates the Best Evidence Rule. Summaries, however, may be the only practicable way of making their contents available to the fact finder. Both Federal Rule of Evidence 1006 and California Evidence Code §§ 1521(a) and 1523(d) permit the use of summaries, whether written or oral; a federal judge, however, may order the production of the originals for inspection by the opposing party. Under the suthority a California judge has to administer a trial, a California judge would have the same power if the opponent claims that it would be unfair for the court to admit the summaries.

California Computerized Information. As writings, computer printouts are subject to the Secondary Evidence Rule. The fact that a printout may be the output of diverse data fed into a computer can raise questions about whether a particular printout is the "original." To eliminate these uncertainties, § 1552 provides that 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." Combined with § 255, which defines computer printouts as originals, these provisions satisfy the requirements of the Secondary Evidence Rule and replace the requirements of authentication. The presumption created by § 1552 affects only the burden of producing evidence. If the objecting party introduces evidence that a printed representation is inaccurate or unreliable, the offering party must convince the judge by a preponderance of the evidence that the printed representation is an accurate representation of the existence and content of the computer information or computer program it purports to represent.

Similarly, 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 (§ 1553). As in the case of printed representations of computer information or a computer program, this provision, together with § 255, satisfies the Secondary Evidence Rule and replaces the requirements of authentication. As in the case of § 1552, the presumption created by this section affects only the burden of production and imposes upon the offering party the same persuasion burden if a party to the action introduces evidence that the printed representation of the images is inaccurate or unreliable.

The Federal Rules approach computerized information from the perspective of authentication. As is discussed in Chapter 9, Rule 901(b) provides that a computer printout can be authenticated by evidence describing the process or system used to produce the result and showing that the process or system produces an accurate result.

Copies of Writings in Official Custody. In the case of some public records, the California Evidence Code provides for the simultaneous satisfaction of the requirements of authentication and the Secondary Evidence Rule. Section 1530(a)(1) provides that if a copy of a writing in the custody of a public entity purports to be published by the authority of the nation or state, or public entity therein in which the writing is kept, then the copy shall be prima facie evidence of the existence and content of the original. In addition, § 1530(a)(2) provides that if the office in which the original is kept is within the United States and the office certifies that a copy is a correct copy of the original, then the copy shall also be prima facie evidence of the existence and content of the original. To facilitate the admission of these records, the certification of authenticity may be received for the truth of the matters stated.

The presumptions created by § 1530 affect only the burden of producing evidence. If the opponent introduces some evidence indicating that the copy is not a faithful reproduction, the fact finder will have to determine the correctness of the copy without regard to the presumptions.

California Official Records of Recorded Writings. California Evidence Code § 1532 allows the use of the official record of a writing that is recorded as prima facie of the existence and content of the recorded writing. The presumption created by § 1532, like the one created by § 1530, affects only the burden of producing evidence.

Copies of California Business Records. California Evidence Code § 1550 provides that a photographic copy can be offered in lieu of the original if the copy was made and preserved as part of the records of a business in the regular course of such business. This section is designed to continue in effect the provisions of the Uniform Photographic Copies of Business and Public Records as Evidence Act. In light of the generous treatment afforded duly authenticated copies of originals, the value of § 1550 as an exception to the Secondary Evidence Rule has diminished.

Of greater importance is § 1560. It permits the custodian of business records to supply copies of the originals in response to a subpoena duces tecum. The copies may be offered in evidence in lieu of the original records (§ 1562). In the affidavit accompanying the copies, the custodian must authenticate the originals as well as the copies (§ 1561(a)). The affidavit may be received for the truth of the matters stated (§ 1562).

§ 10.04 The Completeness Doctrine

FEDERAL RULES OF EVIDENCE

Rule 106. Remainder of or Related Writings or Recorded Statements

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part--or any other writing or recorded statement--that in fairness ought to be considered at the same time.

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CALIFORNIA EVIDENCE CODE

§ 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.

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Comparative Note. Whenever matters are taken out of context, misleading impressions can be created. To diminish this risk, California Evidence Code § 356 provides that when "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."

Federal Rule of Evidence 106 contains a similar provision, but it is limited to writings and recorded statements and does not apply to conversations.

Both provisions have an implicit hearsay exception. If the original statement was offered for the truth of the matter stated, then as a general rule the remainder offered under the completeness doctrine may also be received for the truth of the matter asserted.