Chapter 3 - §21. Exception—Official record

• Jurisdiction: United States

§21. Exception—Official record

An official record is admissible as an exception to the hearsay rule. Evid. C. §1280.

§21.1. Overview. The official-records exception to the hearsay rule allows the introduction of a "statement of a public official" if the official "was under a duty" to make the statement and if the statement was "based on facts within the official's personal knowledge." 1 Witkin, California Evidence (5th ed.), Hearsay §245. The rationale for this exception is that, with respect to these records, the "regular practice of the public office and the official duty" make such documents trustworthy. Id. Unlike the business-records exception in Evid. C. §1271, the official-records exception does not require a custodian of records or other qualified witness to testify about the identity of the record or its mode of preparation. See Evid. C. §1280; 7 Cal. Law Revision Comm'n Rep. (1965) p. 1244 (no witness need testify "if the court takes judicial notice or if sufficient independent evidence shows that the record or report was prepared in such a manner as to assure its trustworthiness"). "This exception to the hearsay rule is based on the presumption that public officers perform their official duties." Jazayeri v. Mao (2d Dist.2009) 174 Cal.App.4th 301, 317.

§21.2. Requirements for exception. For a writing to be admissible as an official record under Evid. C. §1280, the following criteria must be met:

1. Writing is record of act, condition, or event. The writing must have been made as a record of an act, condition, or event and offered to prove that occurrence. Evid. C. §1280; see, e.g., Kilroy v. State (3d Dist.2004) 119 Cal.App.4th 140, 146-47 (appellate opinion as official record can be offered only to prove that opinion was delivered and that court made certain orders, judgments, and findings). As with the business-records exception, conclusions or opinions are generally inadmissible under Evid. C. §1280 when appearing in an official record. See, e.g., People v. Dunlap (5th Dist.1993) 18 Cal.App.4th 1468, 1479 (California Law Enforcement Telecommunications System (CLETS) printout was trustworthy because none of the information in report reflected conclusions or opinions of reporting employees). See "Conclusions & opinions," ch. 3-B, §20.2.1(2).

2. Writing made in scope of public employee's duty. The writing must be made by a public employee and within the scope of the employee's official duty. Evid. C. §1280(a); see, e.g., Hernandez v. Gutierrez (4th Dist.2003) 114 Cal.App.4th 168, 175 (because regulations did not require certified breath test operator to observe subject before administering breath test, police officer was acting within scope of his duty); Shea v. DMV (4th Dist.1998) 62 Cal. App.4th 1057, 1061 (because regulations require trainees to be supervised when performing forensic analysis, trainee was acting outside scope of his official duty when unsupervised and reporting test results). The term "public employee" means an officer, agent, or employee of a public entity. Evid. C. §195; see, e.g., Bhatt v. State Dept. of Health Servs. (2d Dist.2005) 133 Cal.App.4th 923, 929-30 (report prepared by agent of public entity qualified as official record).

Practice Tip Whenever there is a question about a public employee's scope of duty, consult the statutes and regulations that govern the public employee's employment along with any internal policies of the public entity for which he is employed.

3. Writing was timely prepared.

(1) Generally. The writing must be made "at or near the time of the act, condition or event." Evid. C. §1280(b). The timeliness criterion does not require that the record be evaluated against "arbitrary or artificial time limits, measured by hours or days or even weeks," but will depend on the nature of the information recorded, the "immutable reliability" of the sources from which the information was drawn, and similar factors. People v. Martinez (2000) 22 Cal.4th 106, 128; Coe v. City of San Diego (4th Dist.2016) 3 Cal.App.5th 772, 787. Rather, practical considerations are important, including the nature of the information recorded and the reliability of the sources from which the information was drawn. Martinez, 22 Cal.4th at 128. Whether an entry has been made within a sufficient time after a transaction has occurred to render it within the official-records exception depends on whether the time span between the transaction and the entry was so great as to suggest a danger of inaccuracy due to lapse of memory. Id.; Miyamoto v. DMV (6th Dist.2009) 176 Cal.App.4th 1210, 1219; see Glatman v. Valverde (4th Dist.2006) 146 Cal.App.4th 700, 705 (memory is subject to erosion with every day that passes, whether working days or nonworking days).

(2) Data transfers. Data transfers, which involve the transfer of information from one form of recorded storage to another (e.g., from handwritten notes to public record), will generally not raise a timeliness concern as long as the manner in which the information was first recorded was timely. See Martinez, 22 Cal.4th at 128. This is true because the transfer of timely recorded information to another form of storage does not depend on the memory of a person. Id.; e.g., Miyamoto, 176 Cal.App.4th at 1221 (written report of blood alcohol level prepared three days after blood was tested was timely made; test results in written report came from data that was recorded in electronic database at...