BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
John L. Burton, Chairman
1997-98 Regular Session
SB 177 S
Senator Kopp B
As Amended May 5, 1997
Hearing Date: January 13, 1998 1
Evidence Code 7
JMR:cjt 7
SUBJECT
Best Evidence Rule
DESCRIPTION
This bill would repeal the "best evidence rule" which
requires the original of a writing to be offered in
evidence to prove the content of the writing, and would
replace it with the "secondary evidence rule" which would
provide that the content of a writing may be proved by
otherwise admissible secondary evidence.
BACKGROUND
The best evidence rule was created in 1965 (Chapter 299)
and took effect on January 1, 1967. The best evidence rule
was adopted upon a recommendation from the California Law
Revision Commission and was adapted from Code of Civil
Procedure sections existing at that time. The best
evidence rule is set forth in Evidence Code Section 1500
and provides:
Except as otherwise provided by statute, no evidence
other than the original of a writing is admissible to
prove the content of a writing. This section shall be
known and may be cited as the best evidence rule.
According to the Law Revision Comments to Evidence Code
Section 1500, the best evidence rule was "designed to
minimize the possibilities of misinterpretation of writings
by requiring the production of the original writings
themselves, if available." At the time of its creation,
the rule contained ten (10) exceptions which either existed
in law, were recognized elsewhere, or was the practice of
courts at the time. Since then additional exceptions have
been added.
CHANGES TO EXISTING LAW
Existing law governing the proof of the content of a
writing in a civil or criminal action or proceeding
provides that "[e]xcept as otherwise provided by statute,
no evidence other than the original of a writing is
admissible to prove the content of a writing." This is
known as the "Best Evidence Rule." (Evidence Code 1500.)
This bill would repeal the Best Evidence Rule and replace
it with the "secondary evidence rule," providing that the
content of a writing may be proved by otherwise admissible
secondary evidence unless: (1) a genuine dispute exists
concerning material terms of the writing and justice
requires the exclusion of the evidence; or (2) admission of
the secondary evidence would be unfair.
Existing law provide that the best evidence rule shall not
apply at preliminary examinations. (Penal Code Section
872.5.)
This bill would provides that at a preliminary examination
the content of a writing may be proved by an otherwise
admissible original or otherwise admissible secondary
evidence.
COMMENT
1. Purpose of the bill
In its recommendation to repeal the best evidence rule
and replace it with the proposed secondary evidence rule,
the California Law Revision Commission maintains that the
rationales for the best evidence rule are no longer valid
and the costs of the rule outweigh the benefits.
a. Rationales for the best evidence rule no longer valid
1) Fraud deterrence : The Law Revision Commission
believes that fraud deterrence as a reason for the best
evidence rule is no longer valid. They note that "even
where the Best Evidence Rule applies it may often be
ineffective in preventing fraud. A litigant may
fabricate secondary evidence and manufacture an excuse
satisfying one of the rule's exceptions." (Best
Evidence Rule, 26 Cal. L. Revision Comm'n Reports 369,
379 (1996).) The Commission's report also notes that
with the advent of new technologies such as scanning
and manipulating signatures it is easy for an
unscrupulous litigant to create false evidence and
introduce it as original.
2) Minimizing misinterpretation : One of the
rationales for the best evidence rule is to minimize
the possibilities of misinterpretation of writings.
The Law Revision Commission Report states that while
preventing misinterpretation of writings is an
important goal, modern discovery "undermines this as a
justification for the Best Evidence Rule. Because
litigants are able to examine original documents in
discovery, they can discern inaccuracies and fraudulent
tampering before trial, rather than unearthing such
problems through the Best Evidence Rule in the midst of
the trial." (Best Evidence Rule, 26 Cal. L. Revision
Comm'n Reports 369, 381 (1996).)
3) Other ways to safeguard against fraud and
misinterpretation :
The Law Revision Commission believes that the best
evidence rule is not the only protection against fraud
and misinterpretation. The Commission believes that a
party is motivated to present the most convincing
evidence to support their case and thus using secondary
evidence with no reasonable explanation will likely
discount its probative value.
b. Costs of the rule outweigh benefits
According to the Law Revision Commission Report the
best evidence rule can cause a waste of time in
judicial resources trying to determine in complicated
situations, such as those relating to modern
technologies, what is the original. It can also result
in the exclusion of reliable evidence and lead to
costly appeals. Finally, it may add to the cost of
litigation by causing a litigant to expend time and
resources hunting down the "original" in order to avoid
a best evidence objection.
2. Under existing law, do the exceptions swallow the rule?
There are numerous exceptions and qualifications to the
best evidence rule.
For example, both the Evidence Code and the Federal Rules
of Evidence now allow a party to prove the contents of a
writing by offering, not the original, but a "duplicate
original," meaning a Xerox copy, so long as it is
authenticated as a correct copy of the original and no
serious question has been raised about the genuineness of
the original. (Evidence Code 260; Federal Rule of
Evidence 1001(4).)
Moreover, the best evidence rule itself contains many
other exceptions to the requirement that the original be
produced, including:
Printed representations of computer information and
computer programs. (Section 1500.5.)
Printed representations of images stored on video or
digital media. (Section 1500.6.)
Secondary evidence of writings that have been lost or
destroyed without fraudulent intent of the proponent of
the evidence. (Sections 1501, 1505.)
Secondary evidence of unavailable writings.
(Sections 1502, 1505.)
Secondary evidence of writings an opponent has, but
fails to produce as requested. (Sections 1503(a),
1505.)
Secondary evidence of collateral writings that would
be inexpedient to produce. (Sections 1504, 1505.)
Secondary evidence of writings in the custody of a
public entity. (Sections 1506, 1508.)
Secondary evidence of writings recorded in public
records, if the record or an attested or certified copy
is made evidence of the writing by statute. (Sections
1507, 1508.)
Secondary evidence of voluminous writings. (Section
1509.)
Copies of writings that were produced at the hearing
and made available to the other side. (Section 1510.)
Certain official records and certified copies of
writings in official custody. (Sections 1530-1532.)
Photographic copies made as business records.
(Section 1550.)
Photographic copies of documents lost or destroyed,
if properly certified. (Section 1551.)
Copies of business records produced in compliance
with Sections 1560-1561. (Sections 1562, 1564, 1566.)
Proponents of the bill contend that when considering
these exceptions combined with the duplicate original
doctrine, today it is more likely than not that a
document will be proved in evidence by use of a copy
rather than by the original. Furthermore, they contend
that creating any further exceptions to the rule is not
an inviting option. Instead of continuing a legal
doctrine in which the exceptions are swallowing the rule,
they assert that this bill would state a straightforward
rule, adaptable to new technologies.
3. The proposed secondary evidence rule
The bill would provide that, in addition to an otherwise
admissible original, the content of a writing may be
proved by otherwise admissible secondary evidence,
unless: (1) a genuine dispute exists concerning material
terms of the writing and justice requires the exclusion
of the evidence; or (2) admission of the secondary
evidence would be unfair.
The bill would preserve existing law governing the
admissibility of oral testimony to prove the content of a
writing, providing that generally oral testimony is not
admissible to prove the content of a writing. Likewise,
any document still would have to be authenticated before
it is admissible.
The Law Revision Commission asserts that in light of the
broad exceptions to the best evidence rule, adoption of
the secondary evidence rule will not make a dramatic
change in existing practice, but would make the law more
straightforward, efficient, just and workable.
a. Rule in criminal cases
Proposed Evidence Code Section 1522 sets forth an
exception for criminal cases because of their narrower
discovery rules. It conditions use of secondary
evidence on making the original reasonably available
for inspection if the proponent has it. The section
would not apply to: a duplicate; a writing that is not
closely related to the controlling issues in the
action; a copy of a writing in the custody of a public
entity; 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. Secondary evidence in preliminary examination
Proposed Penal Code Section 872.5 replaces existing
Penal Code Section 872.5, which provides that the best
evidence rule shall not apply to preliminary
examinations. The proposed section would provide that
at a preliminary examination the content of a writing
may be proved by an otherwise admissible original or
otherwise admissible secondary evidence.
4. Opposition
The opponents of the bill point to several problems with
the proposed secondary evidence rule, including: (1) it
shifts the burden of proof from the proponent to the
opponent of secondary evidence; (2) it does not define
what constitutes secondary evidence; (3) it appears to
change the burden of appeal from a preponderance of the
evidence test to a substantial evidence test; and, (4) it
fails to adequately deter fraud.
Essentially, the Department of Justice (DOJ) contends
that because reciprocal discovery is not working
effectively in either civil or criminal forums, the best
evidence rule, foundational requirements for secondary
evidence of a writing, and provisions of the Code of
Civil Procedure which establish procedures for
authenticating documents are necessary to safeguard
against fraud. DOJ believes that SB 177 would undermine
these provisions by allowing secondary evidence as a
primary means of proof.
Support: Miguel A. M?ndez, Stanford Law Professor
Opposition: Office of the Attorney General, Department of
Justice
California Attorneys for Criminal Justice
Municipal Court Judges' Ass., Los Angeles County
(Section 6 only)
HISTORY
Source: California Law Revision Commission
Related Pending Legislation: None known
Prior Legislation: Ch. 299, Stats. 1965; Ch. 708, Stats.
1977; Ch. 933, Stats. 1983; AB 2897
(Bowler) Ch. 345, Stats. 1996; AB 1387 (Brulte) Ch. 642,
Stats. 1996
Prior Vote: Senate Public Safety Committee (7-0)
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