What is the Official Records Hearsay Exception (EC § 1280)?
In almost every criminal case, official records are sought to be introduced by the prosecution or the DMV (in a DUI admin per se hearing). When the records are being introduced for the truth of the matters stated therein, they are hearsay and must meet certain foundational requirements to be admissible as an exception to the hearsay rule of general inadmissibility of hearsay.
Indeed, Evidence Code § 1200(b) states “[e]xcept as provided by law, hearsay is inadmissible.” One of the laws that provides such an exception is Evidence Code §§ 1280-1284, the official records exception to the hearsay rule.
A writing, or a portion thereof, is admissible under the official records exception to the hearsay rule is made by a public employee in compliance with the following conditions:
- Act, condition of event. The public employee’s writing must be to record an act, condition or event and the record must be offered to substantiate the occurrence of the act, condition or event. Ev. Code § 1280. For example, the record cannot be considered an official record subject to the hearsay exception if it was produced in response to a prosecutor’s request for the documents. The writing must be characterized as a public or official record and be maintained as part of the regular functions of a departmental or governmental office by statute or by the nature of the duties of the office. See Pruett v. Burr (1953) 118 Cal.App.2d 188.
Scope of public employee’s duty. The document must be made or complied by and within the duty of the public employee. Evidence Code § 1280(a); People v. Ramos (1997) 15 Cal.4th 1133; see also Shea v. Department of Motor Vehicles (1998) 62 Cal.App.4th 1057 (holding that a forensic alcohol report prepared by an unsupervised trainee did not fall within the official records exception to the hearsay rule). It should be noted that there is a rebuttable presumption that an official duty has been regularly performed (Evid. Code § 664), but this presumption applies only when the public employee has an official duty to act. Furman v. Department of Motor Vehicles (2002) 100 Cal. App.4th 416. If the suspect can show that the public employee failed to properly record the events, then the 664 presumption does not apply and the official records exception would also not apply. People v. Martinez (2000) 22 Cal.4th 106; Murphey v. Shiomoto (2017) 13 Cal.App.5th 1052.
- Timeliness of the entry of the act, condition or event. The writing must be made at or near the time of the act, condition or event. Evidence Code § 1280(b); see Glatman v. Valverde (2006) 146 Cal.App.4th 700 (“memory is subject to erosion with every day that passes).
- Trustworthiness. The sources of the information for the entries in the writing and the method and time of preparation of the writing must indicate the trustworthiness of the writing. Evidence Code § 1280(c).
The official records exception to the hearsay rule, it should be noted, is similar to the business records exception, which requires the custodian of records or another qualified witness to testify as to the identity of the record and its mode of preparation in the regular course of business “at or near the time of the act, condition or event” for trustworthiness (Evidence Code § 1271).
In contrast, the official records hearsay exception does not require witness testimony as to these issues, provided the foundation for the writing is established by judicial notice or the independent evidence that the record was prepared in a manner to assure its trustworthiness. Evidence Code § 1280, Law Revision Commission Comments; Bhatt v. State Dept. of Health Services (2005) 133 Cal.App.4th 923.
Lastly, it is worth mentioning that it is not required that the report of a public employee be sworn to be admissible. For example, a police report satisfies this element when it is based on the individual officer’s personal observations. See Coe, supra; Burge v. Department of Motor Vehicles (1992) 5 Cal.App.4th 384 (trustworthiness requirement of EC section 1280 satisfied only if source of information is based on author’s firsthand observation or personal knowledge); Donley v. Davi (2009) 180 Cal.App.4th 447.
For more information about evidentiary issues, please click on the following articles: