Sunday, March 29, 2009

Preference for originals?

California has a unique exception to the "Best Evidence Rule." California Evidence Code Section 1521 states:

1521. (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."

Here's the reference to 1401:

1400. 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.

1401. (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. 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.

The problem here lies in the fact that the success or failure of a challenge based on these areas of the evidence code depends entirely upon the judge. Also, finding evidence of success or failure in challenging based on these is really tough as these challenges don't often make the headlines or swing entire cases.

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