15 Chap. L. Rev. 725 (No PDF)
Chapman Law Review
DIGEST: PEOPLE V. SKILES
Rebecca J. Kipper
Copyright (c) 2012 Chapman Law Review; Rebecca J. Kipper
Danny Skiles was convicted of one count of residential burglary. Because he had previously been convicted of manslaughter in Alabama, the court held a trial to determine whether he would be sentenced as a second-strike offender under California’s Three Strikes law. Under the Three Strikes law, a prior out-of-state felony conviction is a strike in California if it qualifies as a serious felony conviction. One method of showing that a conviction is a serious felony conviction is to establish that the defendant “personally inflicted great bodily injury on a person other than an accomplice.” During trial, the prosecutor presented, and the trial court admitted, two packets of documents relating to the Alabama conviction. People’s exhibit No. 16 consisted of certified copies of the minute order, plea agreement, and grand jury documents. People’s exhibit No. 17 contained certified copies of the booking documents. These documents showed that Skiles was charged with, and pled guilty to, manslaughter. However, the court noted that none of the records included a factual description of the manslaughter charge, which was necessary in order to establish that it was a serious felony conviction under California law. The prosecutor had a clerk of the court in Alabama fax a certified copy of the first page of the indictment. This page, introduced as People’s exhibit No. 18, was a faxed copy of a certified copy that was stamped and signed by a court clerk stating that the copy “is a true and correct copy of the original on file in this office.” The indictment page contained a factual description of the manslaughter charge. The defense objected to the admission of this document “on ‘foundational grounds’ because it was a ‘photocopy.”’ The trial court overruled the objection. At sentencing, the court held that there was enough evidence to show that Skiles “had personally inflicted great bodily injury on a person other than an accomplice” and that, therefore, his prior manslaughter conviction qualified as a strike in California. He was sentenced to a prison term of nine years.
Skiles appealed his sentence arguing that the prosecution had not property authenticated the faxed copy of the certified copy of the indictment page (exhibit No. 18), which rendered it inadmissible. Therefore, the trial court had insufficient evidence to find that he committed a serious felony in Alabama. The Court of Appeal affirmed the trial court and held that under section 1521 of the California Evidence Code, the Secondary Evidence Rule, a copy of a certified copy of an official document is admissible “unless there is a genuine dispute concerning its terms and justice requires exclusion of the copy, or admission of the copy would be unfair.” The Court of Appeal found that there was no such dispute as to the authenticity of the document. However, it went on to examine exhibit No. 18 for authenticity, and determined that the faxed copy of the “indictment page was an authentic representation of the actual charges in the Alabama case” because it was consistent with the certified court records in exhibit No. 16, which were unquestionably authentic. Therefore, the court held that the indictment page was properly admitted under the Secondary Evidence Rule. The defendant appealed to the Supreme Court of California.
The court examined the various statutes that govern the admissibility of copies of official documents in order to determine whether the faxed copy of the certified copy of the indictment page was properly admitted into evidence. First, section 452.5 of the California Evidence Code provides that an official record of a conviction is admissible to prove the commission of the underlying offense, the conviction itself, or any other “act, condition, or event recorded by the record” if it is certified in accordance with section 1530. Section 1530 states that a copy of an official writing “is prima facie evidence of the existence and content of such writing,” if the copy purports to be authorized by the public entity with custody of the document, the document is kept within the United States, and “the copy is attested or certified as a correct copy of the writing . . . by a public employee . . . having the legal custody of the writing.” The Defendant argued that a faxed copy of a certified copy of an official document is never admissible because it cannot be certified under section 1530. Under defendant’s theory, a faxed copy does not bear an original attestation as required by section 1530, but rather bears a copied attestation. Unlike the original certification that is attached to the certified copy that is faxed, which defendant concedes would meet the requirements of section 1530 in this case, the copied certification on a faxed copy no longer conveys the required message that the court clerk “had seen and was vouching for the authenticity of the faxed copy.” The court agreed with this analysis and held that “[b]ecause the public official did not examine and compare the faxed copy with the original, with a certificate of its correctness, we agree that the faxed copy did not meet the requirements of section 1530.”
However, the court found the defendant’s argument that faxed copies of certified documents are inadmissible per se to be unpersuasive because it presumes, wrongly, that section 1530’s certification scheme prohibits the authentication of documents by other methods. The court explained that section 1530 “only establishes a presumption of authenticity.” If a copy of a court record is properly certified under section 1530, then that copy is presumed authentic, and “standing alone may be sufficient to prove a prior felony conviction” unless the other party can overcome that presumption with contrary evidence. Moreover, the court inferred from section 1530 that a noncertified copy, like the faxed copy at issue here, cannot stand alone and is not reliable enough, on its own, to be self-authenticating. But, certification is not an indispensible condition in the admissibility of official documents. There is nothing in section 1530 that bars the authentication by means other than certification. Therefore, while it is true that faxed copies of certified copies cannot be properly certified under section 1530, and thus are not admissible under section 452.5, nothing prevents them from being authenticated and deemed admissible by another method.
The Attorney General argued that the faxed copy at issue here was admissible under the Secondary Evidence Rule. The Secondary Evidence Rule states that “[t]he content of a writing may be proved by otherwise admissible secondary evidence.” However, in order to be “otherwise admissible,” the secondary evidence must itself be authenticated. Thus, for the faxed copy of the indictment page to be admissible as secondary evidence of the content of the original document, it must be authenticated. Under section 1400, a writing can be authenticated by either the “introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or . . . the establishment of such facts by any other means provided by law.” The proponent of the evidence is not limited to the authentication methods enumerated in the Evidence Code. The court pointed out that documents had even been “authenticated by circumstantial evidence and by [their] contents.” The court analyzed the evidence that was introduced at trial to determine whether, under section 1400, it was sufficient enough to sustain a finding that the faxed copy of the indictment page was authentic (for example that the indictment page in exhibit No. 18 was the first page of the indictment in exhibit No. 16 and a true representation of the charges). The court found that “[t]he indictment page in exhibit No. 18 is similar to, and consistent with, the indictment page in exhibit No. 16, which is of unquestioned authenticity.” In addition, both indictment pages concern the same charges listed in the grand jury’s true bill (also a document of unquestioned authenticity). The court concluded, “the contents of the documents in exhibit Nos. 16 and 18 support a determination that the document in exhibit No. 18 was an accurate representation of a court document in the same Alabama case and an authentic representation of counts 1 and 2 of the indictment.” Thus, “the prosecution introduced other ‘evidence sufficient to sustain a finding [of authenticity].”’
However, under section 1521, even if secondary evidence is deemed authentic, it must still be excluded if the court determines either “‘[a] genuine dispute exists concerning material terms of the writing and justice requires the exclusion”’ or “‘[a]dmission of the secondary evidence would be unfair.”’ Although the court agreed with the Court of Appeal that there was no dispute or unfairness that would require the evidence be excluded in this case, it disagreed with the way in which the Court of Appeal construed this section of the statute. The court explained that the lower court’s “broad proclamation” that uncertified copies are admissible “unless there is a genuine dispute concerning its terms . . . or admission of the copy would be unfair” wrongly shifts the burden of authentication away from the proponent of the evidence. But, since the Court of Appeal “correctly determined exhibit No. 18’s authenticity and admissibility by comparing it with the certified documents in exhibit No. 16,” the error was harmless. Since the faxed copy was properly authenticated under section 1400, it was admissible under the Secondary Evidence Rule.
The court also dismissed Defendant’s contention that California should adopt a bright-line rule declaring that noncertified copies of certified copies are per se inadmissible. The court also rejected Defendant’s claim that the admission of the faxed copy violated his constitutional right to confront and cross-examine the clerk making the certification. The defendant objected to the evidence only on “foundational grounds” and thus waived his constitutional claim by failing to assert it at the trial.
The court affirmed the Court of Appeal. The court held that a noncertified copy of a certified copy of an official document may be admissible as secondary evidence under section 1521, the Secondary Evidence Rule. However, because a noncertified copy is not presumed authentic under section 1530, the proponent of the copy has the burden of presenting additional evidence of its authenticity. Because the prosecution provided sufficient evidence at trial to sustain an independent finding that the faxed copy of defendant’s indictment was an authentic document from the Alabama court, the trial court properly admitted the document under the Secondary Evidence Rule.
The court’s holding clarifies that a faxed copy of an official writing cannot be admitted under the Secondary Evidence Rule unless it is independently authenticated under section 1400. In the absence of some other admissible evidence of its authenticity, a noncertified, faxed copy of a certified document is not reliable enough to constitute prima facie evidence of the content of the underlying document. In addition, the holding sets out a bright-line rule that the proponent of a noncertified copy of an official record has the burden of proving its authenticity. The opponent of such evidence does not waive the issue of authenticity by failing to raise it. On the other hand, the proponent of an uncertified copy of a certified document is not limited in the method by which the writing is authenticated. Any evidence that is sufficient to show that the document is authentic can be introduced, including circumstantial evidence and the contents of the writing itself.