2 California Evidence (4th), Documentary Evidence

2 California Evidence (4th), Documentary Evidence

I. GENERAL PRINCIPLES

A. [§1] Nature and Kinds of Writings.

B. [§2] Applicable Rules of Evidence.

II. AUTHENTICATION

A. Requirement of Authentication.

1. [§3] Nature and Purpose.

2. [§4] Writing Not Genuine.

3. [§5] For Admission of Secondary Evidence.

4. [§6] For Admission of Altered Writing.

B. Methods of Authentication.

1. [§7] In General.

2. Testimony.

(a) [§8] Subscribing Witness.

(b) [§9] Other Witness to Execution or Making.

(d) [§11] Nonexpert Familiar With Handwriting.

(e) Witness to Tape Recording.

(1) [§12] In General.

(2) [§13] Effect of Partially Unintelligible Tape.

3. Circumstantial Evidence.

(a) Comparison With Exemplar.

(1) [§14] Nature of Proof.

(2) [§15] Foundation: Requisites of Exemplar.

(3) [§16] Exemplars Requested by Opposing Party.

(b) [§17] Evidence That Writing Was Reply.

(1) [§18] Letter or Other Writing.

(2) [§19] Tape Recording.

(d) [§20] Graffiti in Vandalism Prosecution.

4. [§21] Admission by Adverse Party.

C. Presumptions of Authenticity.

1. [§22] Private Writings.

2. Public Writings.

(a) [§23] Seal of Entity or Official.

(b) [§24] Signature of Domestic Public Employee or Notary.

(d) [§26] Federal Rules of Evidence.

III. SECONDARY EVIDENCE

A. Former Best Evidence Rule.

1. [§27] Nature of Rule.

2. Exceptions to Rule.

(a) [§28] Original Lost or Destroyed.

(b) [§29] Original Under Control of Opponent.

B. Current Secondary Evidence Rule.

1. [§31] Nature of Rule.

2. Writings Within Rule.

(a) [§32] Written, Typewritten, or Mechanical Reproductions.

(b) [§33] Recordings.

(d) [§35] Distinction: Inscribed Chattels.

3. Exceptions to Rule.

(a) [§36] General Exceptions.

(b) Exception in Criminal Actions.

(1) [§37] Nature of Exception.

(2) [§38] When Inapplicable.

(1) [§39] Nature of Exception.

(2) [§40] When Inapplicable.

C. Official and Recorded Writings.

1. Writing in Official Custody.

(a) [§41] In General.

(b) [§42] In United States.

2. [§44] Official Record of Recorded Writing.

D. Photographic Copies and Printed Representations of Writings.

1. [§45] Nature of Uniform Act in Evidence Code.

2. [§46] Photographic Copies as Business Records.

3. [§47] Photographic Copies Where Original Lost or Destroyed.

4. [§48] Computer Information and Programs.

5. [§49] Video or Digital Images.

E. Business Records.

1. [§50] Nature of Statute.

2. Procedure.

(a) [§51] Delivery of Copy and Affidavit.

(b) [§52] Alternative: Inspection or Copying and Affidavit.

(d) [§54] Personal Attendance and Official Records.

(e) [§55] Fees and Costs.

F. [§56] Statutory Restoration Procedure.

IV. OFFICIAL WRITINGS AFFECTING PROPERTY

A. [§57] Nature and Scope of Provisions.

B. [§58] Lost Official Record Affecting Property.

V. PAROL EVIDENCE RULE

A. Nature of Rule.

1. [§59] General Principles.

2. Statements of Rule.

(a) [§60] Restatement and U.C.C.

(b) [§61] California Statute.

3. [§62] Rule of Substantive Law.

4. [§63] Statute of Frauds Distinguished.

5. [§64] Objection in Lower Court.

B. Integration Rule Excluding Extrinsic Evidence.

1. What Constitutes Integration.

(a) [§65] Writing Intended as Final Expression.

(b) [§66] Integration Includes Implied Term.

2. Determination of Intent.

(a) [§68] In General.

(b) [§69] Admissibility of Parol Evidence.

3. Merger Clause.

(a) [§70] General Rule: Parol Evidence Inadmissible.

(b) [§71] Exceptions.

4. What Are Not Integrations.

(a) [§72] Noncontractual Writings.

(b) [§73] Incomplete Contractual Writings.

C. When Extrinsic Evidence Is Admissible.

1. Evidence To Interpret Integration.

(a) Nature and Scope of Interpretation.

(1) [§74] General Principles.

(2) [§75] Evidence of Intention Excluded.

(b) Evidence To Explain Ambiguity.

(1) [§76] Former Rule: Latent-Patent Distinction.

(2) [§77] Current Rule: No Distinction.

(3) [§78] Wills.

(1) [§79] Former Rule Excluding Parol Evidence.

(2) [§80] Repudiation of Former Rule.

(3) Illustrations of Current Approach.

(aa) [§81] Parol Evidence To Explain Settlement Agreement.

(bb) [§82] Parol Evidence To Explain Other Contract.

(cc) [§83] Parol Evidence To Explain Deed.

(dd) [§84] Parol Evidence To Explain Will.

(d) [§85] Evidence of Dealing, Usage, or Performance.

2. Evidence of Collateral Agreement.

(a) Consistent Collateral Agreement.

(1) [§86] Nature of Exception.

(2) [§87] Illustrations.

(b) Collateral Agreement Contrary to Implied Term.

(1) [§88] Nature of Exception.

(2) [§89] Illustrations.

(1) [§90] Nature of Distinction.

(2) [§91] Illustrations.

(d) [§92] Distinction: Oral Condition Inconsistent With Admissions.

3. Evidence of Different Consideration.

(a) [§93] Different Executed Consideration.

(b) [§94] Distinction: Different Executory Promises.

4. Evidence That Writing Is Invalid or Ineffective.

(a) [§95] Theory and Scope of Exception.

(b) [§96] Mistake.

(1) [§97] In General.

(2) [§98] False Promise.

(d) [§99] Lack or Failure of Consideration.

(e) [§100] Illegality.

(f) [§101] Alteration.

(g) Writing Not Intended To Be Effective.

(1) Sham Instrument.

(aa) [§102] Parol Evidence Admissible.

(bb) [§103] Distinctions.

(2) Conditional Writing.

(aa) [§104] External Condition Precedent Admissible.

(bb) [§105] Condition Precedent to Term or Condition Subsequent Excluded.

5. Evidence of Discharge or Modification of Contract.

(a) [§106] Mutual Rescission or Novation.

(b) [§107] Oral Modification.

6. Miscellaneous Exceptions to Rule.

(a) [§108] Absolute Deed as Mortgage.

(b) [§109] Absolute Transfer as Limited Transfer.

D. Contract Between Party and Stranger.

1. [§111] Rule Under Former Statute.

2. [§112] Deletion of Statutory Language.