Chapter 2 - §2. Writings

• Jurisdiction: United States

§2. Writings

The second most common form of evidence admitted in a criminal proceeding is a writing. A writing is generally defined as any form of tangible expression and is specifically defined as "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." Evid. C. §250.

Federal Comparison The FREs provide a short but broad definition of "writing" as opposed to the comprehensive definition in Evid. C. §250. Under FRE 1001(a), a writing "consists of letters, words, numbers, or their equivalent set down in any form."

§2.1. Foundational requirements. To introduce a writing into evidence, the proponent must first authenticate it. Evid. C. §1401(a); People v. Cruz (4th Dist.2020) 46 Cal.App.5th 715, 729. If the content of the writing is also in issue, the original writing or an otherwise admissible secondary evidence of the writing must be produced as well (referred to as the "secondary evidence rule").

1. Authentication. A writing must be authenticated before it is received into evidence or before secondary evidence of its content is received. Evid. C. §1401. Authentication of a writing means (1) the introduction of evidence sufficient to sustain a finding that the writing is what the proponent claims it to be or (2) the establishment of such facts by any other means provided by law (e.g., stipulation, pleading). Evid. C. §1400; People v. Flinner (2020) 10 Cal.5th 686, 727; see Cruz, 46 Cal.App.5th at 729; 7 Cal. Law Revision Comm'n Rep. (1965) pp. 1263-64.

Federal Comparison Authentication of writings under the FREs is very similar to authentication under California law. To authenticate under the FREs, "the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." FRE 901(a).

(1) Methods of authentication. The Evidence Code provides a number of methods for authenticating a writing. But these methods are not exclusive, and an attorney can use other methods provided by law. Evid. C. §§1400, 1410.

(a) Authentication by testimony.

[1] Testimony of subscribing witness. A writing can be authenticated by the testimony of the subscribing witness. See Evid. C. §1411. Generally, this testimony is necessary only when mandated by statute. Id.; Cruz, 46 Cal.App.5th at 729. Other evidence can be used to authenticate a writing if the subscribing witness refutes its authenticity or does not recall its execution. Evid. C. §1412.

[2] Testimony of independent witness. A writing can be authenticated by an independent witness, such as anyone who saw the writing made or executed. Evid. C. §1413. Ambiguities or dissimilarities between an authenticating witness's recollection of a writing and the writing itself is a fact that goes to the weight of the evidence and does not necessarily preclude its admissibility. Hart v. Keenan Props., Inc. (2020) 9 Cal.5th 442, 452.

(b) Authentication by handwriting identification. A writing can be authenticated by identification of the maker's handwriting. Evid. C. §1415. This can be accomplished in the following ways:

[1] Lay testimony. A lay witness can state her opinion about whether a writing is in another person's handwriting if the court finds that the witness has personal knowledge of that person's handwriting. Evid. C. §1416. See "Lay opinion," ch. 2, §10. For purposes of Evid. C. §1416, handwriting includes both cursive and printed writing that is done by hand. See People v. Lucas (2014) 60 Cal.4th 153, 267, disapproved on other grounds, People v. Romero (2015) 62 Cal.4th 1. A lay witness can acquire personal knowledge of another's handwriting in the following ways: (1) by having seen the supposed writer write, (2) by having seen a writing purporting to be in the handwriting of the supposed writer and on which the supposed writer has acted or been charged, (3) by having received letters in the mail purporting to be from the supposed writer in response to letters duly addressed and mailed by him to the supposed writer, or (4) by any other means of obtaining personal knowledge of the handwriting of the supposed writer. Evid. C. §1416; see, e.g., Lucas, 60 Cal.4th at 265-66 (D's coworker had sufficient personal knowledge when he testified that he saw various documents written by D and was able to identify some in court).

Note Whether a lay witness has personal knowledge of handwriting is a preliminary fact determination made by the court under Evid. C. §405. See Lucas, 60 Cal.4th at 268. See "Fact determinations under Evid. C. §405," ch. 7, §3.3. Until the court is sufficiently satisfied on this issue, lay opinion will not be permitted.

[2] Trier of fact. A writer's handwriting can be authenticated by the trier of fact comparing the handwriting to a handwriting exemplar that (1) the court finds was admitted or treated as genuine by the party against whom the evidence is offered or (2) is otherwise proved to be genuine to the court's satisfaction. Evid. C. §1417. If the writing is more than 30 years old, the comparison can be made to a writing purporting to be genuine, and generally respected as such, by persons having an interest in knowing whether it is genuine. Evid. C. §1419.

(c) Authentication by expert comparison. A writing can be authenticated by an expert witness who compares the writing to another writing that (1) the court finds was admitted or treated as genuine by the party against whom the evidence is offered or (2) is otherwise proved to be genuine to the court's satisfaction. Evid. C. §1418. If the writing is more than 30 years old, the comparison can be made to a writing purporting to be genuine, and generally respected as such, by persons having an interest in knowing whether it is genuine. Evid. C. §1419. In conducting the comparison, it is not necessary that the original writing be used; a photographic copy of the original can be sufficient. See Lucas, 60 Cal.4th at 231-32.

Note The Law Revision Commission makes special note of the subtle language distinction between Evid. C. §§1416 to 1417 and Evid. C. §1418. Unlike Evid. C. §§1416 to 1417, which permit a lay witness or the trier of fact to compare and authenticate a writer's "handwriting," Evid. C. §1418 permits an expert to authenticate a "writing" by comparing it to another "writing,"' The Commission states that this distinction permits an expert to compare any form of writing, not just handwriting (e.g., typewritten specimens). 7 Cal. Law Revision Comm'n Rep. (1965) p. 1270. Despite this apparent distinction, some courts have permitted the trier of fact to compare and authenticate more than just handwriting. E.g., People v. Fonville (5th Dist.1973) 35 Cal.App.3d 693, 709 (permitting trier of fact to authenticate audio recording by comparing it to another admitted recording). This practice may be supported by Evid. C. §1410, which states that "[n]othing in this article shall be construed to limit the means by which a writing may be authenticated or proved."

(d) Authentication by evidence of reply. A writing can be authenticated by evidence that the writing was received in response to a communication sent to the person who is claimed to be its author. Evid. C. §1420; see Flinner, 10 Cal.5th at 733.

(e) Authentication by writing's contents. A writing can 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 to be its author. Evid. C. §1421.

(f) Authentication by stipulation. A writing can be authenticated by stipulation. 7 Cal. Law Revision Comm'n Rep. (1965) p. 1264.

(g) Authentication by admission. A writing can be authenticated by evidence that (1) the party against whom it is offered admitted to its authenticity or (2) the writing has been acted on as authentic by the party against whom it is offered. Evid. C. §1414.

(h) Authentication by presumption. The Evidence Code lists several presumptions that can be used to authenticate certain types of documents. When a presumption applies, the trier of fact must find that the writing is authentic unless the requisite contrary showing is made. 7 Cal. Law Revision Comm'n Rep. (1965) p. 1264; see Evid. C. §604. The writings that are presumed authentic are the following:

[1] Acknowledged writings. A certificate of the acknowledgment of a writing (other than a will) is prima facie evidence of the facts contained in the writing and the genuineness of the signature of the purported signatory. Evid. C. §1451.

[2] Domestic seals. Official seals of certain domestic agencies (i.e., the United States, a U.S. public entity, or a U.S. department, agency, or public employee), a court of admiralty or maritime jurisdiction, or a notary public within any state are presumed genuine. Evid. C. §1452; 7 Cal. Law Revision Comm'n Rep. (1965) p. 1272; see also CCP §1931 (defining requirements for public and private seals).

[3] Foreign seals. Official seals of certain foreign agencies (i.e., a nation or public entity in a nation recognized by U.S. executive power, or a department, agency, or public officer of such a nation or entity) are presumed genuine. Evid. C. §1452(c), (d); 7 Cal. Law Revision Comm'n Rep. (1965) p. 1272.

[4] Official signatures. The signature of a U.S. public employee or public entity, or the signature of a notary public of any state, is presumed to be genuine and authorized if it is affixed in the signatory's official capacity. Evid. C. §1453. This same presumption applies to the signatures of foreign officials. See Evid. C. §1454.

[5] Ancient documents. A writing purporting to create, terminate, or affect an interest in real or personal property is presumed to be authentic if (1) it...