Proving the Content of a Writing

The process of authenticating and proving the content of a writing plays a crucial role in establishing the facts and evidence necessary for a fair and just legal proceeding. In California, Evidence Code Sections 1520-1523 provide a framework for this authentication process. Evidence Code section 1520 provides a foundational principle that allows proving the content of a writing by introducing an otherwise admissible original writing.

Evidence Code Section 1521 specifies the content of a writing may be proved by otherwise admissible secondary evidence. This is called the “Secondary Evidence Rule.”

The court must exclude secondary evidence of the content of writing if the court determines that (1) a genuine dispute exists concerning material terms of the writing and justice requires the exclusion or (2) admission of the secondary evidence would be unfair. For example, the defendant confesses to murder and signs a sworn confession. It is litigated during a pretrial motion that the confession was coerced and is therefore excluded from evidence. Despite the prosecution attempting to elicit secondary evidence of the content of the sworn confession from the police officer who conducted the interview, the court would exclude testimony because it would be unfair since the confession itself was excluded.

Generally, oral testimony is not admissible to prove the content of a writing in legal proceedings, except as provided by specific statutes. However, there are exceptions outlined as follows:

Oral testimony of the content of a writing is allowed even if there is no copy of the writing in the proponent’s possession, and the original has been lost or destroyed without fraudulent intent. For example, in an arson case, the prosecution wants to introduce the defendant’s homeowner’s insurance documents to establish a motive. If the homeowner’s insurance paperwork was destroyed in the fire and the insurance company does not have a copy of the paperwork, the prosecution may still permit the insurance adjuster to testify about the content of the defendant’s insurance policy.

Oral testimony of the content of a writing is permissible even when the proponent doesn’t have the original or a copy of the writing in their possession if (1) the writing or a copy of the writing was not reasonably obtainable by the proponent through the court's process or other available means or (2) the writing is not directly relevant to the key issues of the case, and it would be impractical to demand its production.

Oral testimony of the content of a writing is allowed when the writing consists of multiple accounts or other documents that would be excessively time-consuming to examine in court, and the evidence sought is only the general result of the entire collection. For example, in a complex financial fraud case, the prosecution wishes to introduce evidence of numerous bank transactions, each documented in separate bank statements. It would be extremely time-consuming and inefficient to present and examine each individual statement in court. In this scenario, oral testimony may be permitted to provide a general summary of the transactions, thus allowing the court to understand the overall financial picture without the need for examining each separate document. This exception ensures that justice is served while maintaining efficiency in the legal process.

If you have been charged a crime, it is necessary that you discuss your case immediately with a knowledgeable and aggressive criminal defense attorney as soon as possible. As a former Deputy District Attorney with over 14 years of prosecutorial experience, Los Angeles criminal defense attorney Michael Kraut has extensive knowledge of the authentication process and establishing the contents of a writing, which could be critical for your case.

For more information about the criminal justice process, and to schedule your free consultation, contact Michael Kraut at the Kraut Law Group located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.