Evidence Code §§ 1521 and 1523: The Secondary Evidence Rule

Under Evidence Code § 1521 you can prove what a text message said with a screenshot, printout or export rather than the phone itself, unless the court finds a genuine dispute about the message's material terms that justice requires resolving with better evidence, or finds that admitting the copy would be unfair. Section 1523 adds that you generally cannot prove a message's content by having a witness describe it from memory.

The statutes

(a) The content of a writing may be proved by otherwise admissible secondary evidence. The court shall exclude secondary evidence of the content of writing if the court determines either of the following:
(1) A genuine dispute exists concerning material terms of the writing and justice requires the exclusion.
(2) Admission of the secondary evidence would be unfair.
(b) Nothing in this section makes admissible oral testimony to prove the content of a writing if the testimony is inadmissible under Section 1523 (oral testimony of the content of a writing).
(c) Nothing in this section excuses compliance with Section 1401 (authentication).
(d) This section shall be known as the "Secondary Evidence Rule."

Cal. Evid. Code § 1521.

(a) Except as otherwise provided by statute, oral testimony is not admissible to prove the content of a writing.
(b) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the proponent does not have possession or control of a copy of the writing and the original is lost or has been destroyed without fraudulent intent on the part of the proponent of the evidence.
(c) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the proponent does not have possession or control of the original or a copy of the writing and either of the following conditions is satisfied: (1) Neither the writing nor a copy of the writing was reasonably procurable by the proponent by use of the court's process or by other available means. (2) The writing is not closely related to the controlling issues and it would be inexpedient to require its production.
(d) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the writing consists of numerous accounts or other writings that cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole.

Cal. Evid. Code § 1523.

What they mean for text messages

California replaced the old "best evidence rule" with the secondary evidence rule (enacted 1998, effective January 1, 1999), and for message evidence the effect is generous: nobody expects you to hand the phone to the clerk. A copy is fine. The two exclusions in § 1521(a) are where screenshots get into trouble. If the other side credibly disputes what the messages said or whether they were complete, that is a "genuine dispute concerning material terms," and the court can demand better evidence than an image of a screen. And a cropped screenshot that omits context can be "unfair" within the meaning of (a)(2).

(Section 1522, not quoted here, adds a further ground for excluding secondary evidence in criminal actions.) Subdivision (c) of § 1521 is the line most often overlooked: the secondary evidence rule does not excuse authentication. A screenshot still has to be shown to be a fair copy of what was on the phone under §§ 1400–1401.

Section 1523 matters when messages have been deleted or the phone is gone. A witness generally cannot testify from memory to what a text said, unless the original is lost or destroyed without fraud on the proponent's part (b), or could not be obtained (c). Preservation is the answer: collect early, from the device, with a hash, so the copy is available and the dispute never reaches § 1523. See Text message forensics and Navigating the challenges of deleted messages.

Related sections

§ 1400–1401 authentication · § 1552–1553 printouts · § 250 writing · Hub

Frequently asked questions

Do I have to bring the phone to court?

No. Under § 1521 a copy, printout or export of the messages is admissible secondary evidence, subject to authentication and the two exclusions in § 1521(a).

When can a court refuse a screenshot under § 1521?

When there is a genuine dispute about the material terms of the messages and justice requires exclusion, or when admitting the screenshot would be unfair, for example because it omits context.

Can a witness just testify to what a text said?

Generally not (§ 1523(a)). Oral testimony about content is allowed only if the original is lost or destroyed without the proponent's fraud, could not be obtained, or the writings are too voluminous to examine and only the general result is sought.