Rancho Cucamonga Courthouse
Elia V. Pirozzi
Assigned Judge,
Criminal
Stanley Mosk Courthouse
Alex Ricciardulli
Judge, Los Angeles County Superior Court
Appellate
In both civil and criminal cases, official records are often necessary to establish essential facts. When the records are used to prove the truth of the matter that they relate, they are considered hearsay and must meet the foundational requirements as an exception to the hearsay rule in order for them to be admitted into evidence. See Evidence Code Section 1200(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").
The objective of this article and self-study test is to review the law regarding the official records exception to the hearsay rule: EC Sections 1280-1284. Readers will learn about the elements of the exception, proving the absence of a public record, the effect of the presumption under EC Section 664, constitutional considerations, commonly recognized official records, and how California law compares with the Federal Rules of Evidence.
Overview
An official record is an exception to the hearsay rule. EC Section 1280. For purposes of admissibility, the official records exception is generally interpreted as being more liberal than the business records exception, which requires the custodian of records or other qualified witness to testify as to the identity of the record and its mode of preparation. See EC Section 1271 (business records exception requires proof that a writing documented an act, condition or event, was prepared in the regular course of a business, "at or near the time of the act, condition, or event," and that trustworthiness be established). By contrast, EC Section 1280 does not require witness testimony as to these issues, provided the foundation for the writing is established by judicial notice or by independent evidence that the record was prepared in a manner to assure its trustworthiness. See EC Section 1280, Law Revision Commission Comments; Bhatt v. State Dept. of Health Services, 133 Cal. App. 4th 923 (2005). Therefore, a writing prepared by a public employee that satisfies the requirements of EC Section 1271 will also be admissible under EC Section 1280.
Elements
A writing (or portion thereof) is admissible under the official records exception to the hearsay rule if made by a public employee in compliance with the following conditions:
1. Act, condition or event. The purpose of the public employee's writing must be to record an act, condition or event and the record must be offered to substantiate the occurrence of the act, condition or event. EC Section 1280. The writing must be characterized as a public or official record -- that is, one maintained as part of the "regular function" of a departmental or governmental office, by statute or by the nature of the duties of their office. See Pruett v. Burr, 118 Cal. App. 2d 188 (1953).
2. Scope of public employee's duty. The writing must be made or compiled by and within the scope of duty of the public employee. EC Section 1280(a); People v. Ramos, 15 Cal. 4th 1133 (1997); see, e.g., Shea v. Department of Motor Vehicles, 62 Cal. App. 4th 1057 (1998) (holding that a forensic alcohol report prepared by an unsupervised trainee did not fall within the official records exception to the hearsay rule). A "public employee" is defined as an officer, agent, or employee of a public entity. EC Section 195; e.g., Bhatt (agent of public entity generated record).
Note: There is a rebuttable presumption that an official duty has been regularly performed. EC Section 664. This presumption becomes operative only when the public employee has an official duty to act. Furman v. Department of Motor Vehicles, 100 Cal. App. 4th 416 (2002). If the public official had a duty to record the information, it is presumed to have been recorded properly and the foundational burden then shifts to the party opposing the admission of the evidence to show that the official failed to properly record the events. People v. Martinez, 22 Cal. 4th 106 (2000); Murphey v. Shiomoto, 13 Cal. App. 5th 1052 (2017).
3. Timeliness of the entry of the act, condition or event. The writing must be made at or near the time of the act, condition or event. EC Section 1280(b). However, the timeliness requirement of the writing is not assessed arbitrarily or by artificial time limits. See People v. Martinez; Coe v. City of San Diego, 3 Cal. App. 5th 772 (2016). Since the writing must represent an accurate record of the act, condition or event, the greater the passage of time will create a higher propensity for unreliability. See Glatman v. Valverde, 146 Cal. App. 4th 700 (2006) ("memory is subject to erosion with every day that passes"); e.g., Gregory v. State Bd. of Control, 73 Cal. App. 4th 584 (1999) ("in-lieu" police reports generated 11 and 20 months after death of the victim not considered at or near the time of the event).
An electronic record will satisfy the timeliness requirement for purposes of the official records exception provided the results were recorded at the time they were generated. See Miyamoto v. Department of Motor Vehicles, 176 Cal. App. 4th 1210 (2009) (report consisted of transfer of information from laboratory's database to a written report). Similarly, data transfers ordinarily do not create a timeliness concern because such transfers are not reliant upon a person's memory. People v. Martinez; e.g., Molenda v. Department of Motor Vehicles, 172 Cal. App. 4th 974 (2009) (blood test report not timely because record did not state when test results were entered into the database). Furthermore, a record of conviction certified pursuant to EC Section 1530(a), or an electronically digitized copy of the conviction, is admissible as an official record "to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of prison term, or other act, condition, or event recorded by the record." EC Section 452.5(b)(1).
4. Trustworthiness. The sources of the information for the entries in the writing, and the method and time of preparation of the writing must indicate the trustworthiness of the writing. EC Section 1280(c). The same showing of trustworthiness is required under both the official records and business records exception to the hearsay rule. See EC Sections 1271, 1280, Law Revision Commission Comments. The analysis is to be conducted on a case-by-case basis with the primary consideration being whether the totality of the information memorialized in the official record is trustworthy; however, conclusions and opinions are not categorically inadmissible as untrustworthy. See Rupf v. Yan, 85 Cal. App. 4th 411 (2000) (opinion of officer contained in law enforcement report that subject was danger to himself and others and should be detained admissible under EC Section 1280).
It is not required that the report of a public employee be sworn to be admissible. The trustworthiness requirement is satisfied if the written report is based on the observation of a public employee having a duty to examine the facts and report them correctly. McNary v. Department of Motor Vehicles, 45 Cal. App. 4th 688 (1996). For example, a police report satisfies this element when it is based on the individual officer's personal observations. See Coe. The courts are divided as to whether the trustworthiness element of EC Section 1280 must be based on the personal knowledge or observation of the public employee who created the record (compare Gananian v. Zolin, 33 Cal. App. 4th 634 (1995) (public employee who authors a report based on observations of another public employee with a duty to observe and report accurately satisfies EC Section 1280) with Burge v. Department of Motor Vehicles, 5 Cal. App. 4th 384 (1992) (trustworthiness requirement of EC Section 1280 satisfied only if source of information is based on author's firsthand observation or personal knowledge)).
Courts have recognized the following types of records as admissible under the official records exception to the hearsay rule:
• Autopsy reports. People v. Clark, 3 Cal. 4th 41 (1992).
• Court records. See People v. Reed, 13 Cal. 4th 217 (1996) (preliminary hearing transcript).
• Uncertified computer printout of a person's criminal history (CLETS). People v. Martinez.
• Reports of licensed laboratory containing results of blood-alcohol tests prepared for law enforcement. Burge.
• Response to request under the Freedom of Information Act. Christian Research Institute v. Alnor, 148 Cal. App. 4th 71 (2007).
• Certified commitment records under PC Section 969b. See People v. Delgado, 43 Cal. 4th 1059 (2008).
• Arrest report containing personal observations of police officer. Donley v. Davi, 180 Cal. App. 4th 447 (2009).
• Documents of foreign court. See AO Alfa-Bank v. Yakovlev, 21 Cal. App. 5th 189 (2018) (service documents in Russian court file).
Proving the Absence of a Public Record
Evidence of the absence of a writing in a public office can be admissible if: (a) the record at issue is a type regularly made and preserved by a public office and (b) a public employee who is the official custodian of records prepares a writing, consisting of an attestation or certification, reciting that a diligent search and failure to find such a record in that office took place. EC Section 1284. In addition, the writing attesting to the absence of a record must be authenticated. See EC Sections 1401, 1453, 1530(a)(2). "The exception is justified by the likelihood that such a statement made by the custodian of the records is accurate and by the necessity for providing a simple and inexpensive method of proving the absence of a public record." EC Section 1284, Law Revision Commission Comments.
Constitutional Considerations
Official records do not ordinarily implicate the Sixth Amendment confrontation clause because such writings are not created for the testimonial purpose of proving a past fact for future use at a criminal prosecution, but instead are generated for the administration and internal operation of the public office. See Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). However, in a criminal case, official records can violate the confrontation clause where the records contain testimonial statements. Crawford v. Washington, 541 U.S. 36 (2004); see also Melendez-Diaz (certificate of analysis of a controlled substance prepared specifically for use at criminal trial was testimonial).
Federal Rules
Federal Rules of Evidence Rule 803(8) provides a hearsay exception for a "record or statement of a public office" of "a matter observed while under a legal duty to report." Unlike EC Section 1280, the federal rule excludes from the exception in criminal cases matters "observed by law-enforcement personnel." FRE 803(8)(A)(ii). The rule also provides that "in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation" are admissible. FRE 803(8)(A)(iii). The federal rule places the burden on the opponent of the record to demonstrate that "the source of information or other circumstances indicate a lack of trustworthiness." FRE 803(8)(B).
FRE 803(10), titled "Absence of a Pubic Record," provides for a hearsay exception where a diligent search failed to disclose the public record and testimony or certification is admitted to prove "(i) the record or statement does not exist; or (ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind." In a criminal case, the prosecutor must give fourteen days' written notice of his or her intention to use the certification and the defendant has seven days from receipt of the notice to object, unless a different time period is established by the court for the notice or objection. FRE 803(10)(B).