Conn. Code Evid. § 10-1

History

(Amended May 20, 2015, to take effect Aug. 1, 2015; amended Dec. 14, 2017, to take effect Feb. 1, 2018.) COMMENTARY Section 10-1 adopts Connecticut’s best evidence rule. The rule embraces two interrelated concepts. First, the proponent must produce the original of a writing, as defined in Section 1-2 (c), recording or photograph when attempting to prove the contents thereof, unless production is excused. E.g., Shelnitz v. Greenberg, 200 Conn. 58, 78, 509 A.2d 1023 (1986). Sec- ond, to prove the contents of the proffer, the original must be admitted in evidence. Thus, for example, the contents of a document cannot be proved by the testimony of a witness referring to the document while testifying. The cases generally have restricted the best evidence rule to writings or documents. See Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 11, 513 A.2d 1218 (1986). In extending the rule to recordings and photographs, Section 10- 1 recognizes the growing reliance on modern technologies for the recording and storage of information. Section 10-1 applies only when the proponent seeks to prove contents. E.g., Hotchkiss v. Hotchkiss, 143 Conn. 443, 447, 123 A.2d 174 (1956) (proving terms of contract); cf. Dyer v. Smith, 12 Conn. 384, 391 (1837) (proving fact about writing, such as its existence or delivery, is not proving contents). The fact that a written record or recording of a transaction or event is made does not mean that the transaction or event must be proved by production of the written record or recording. When the transaction or event itself rather than the contents of the written record or recording is sought to be proved, the best evidence rule has no application. E.g., State v. Moynahan, 164 Conn. 560, 583, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973); State v. Tomanelli, 153 Conn. 365, 374, 216 A.2d 625 (1966). What constitutes an ‘‘original’’ will be clear in most situations. ‘‘Duplicate originals,’’ such as a contract executed in duplicate, that are intended by the contracting parties to have the same effect as the original, qualify as originals under the rule. Cf. Lorch v. Page, 97 Conn. 66, 69, 115 A. 681 (1921); Colburn’s Appeal, 74 Conn. 463, 467, 51 A. 139 (1902). The definition of ‘‘original’’ explicitly includes printouts or other forms of electronically stored information that are read- able. The proponent must show only that the printed or read- able version is an accurate (i.e., unaltered and unmodified) depiction of the electronically stored information. See Lorraine v. Markel American Ins. Co., 241 F .R.D. 534, 577–78 (D. Md. 2007) (under Federal Rules of Evidence, ‘‘the ‘original’ of information stored in computer is readable display of the information on the computer screen, the hard drive or other source where it is stored, as well as any printout or output that may be read, so long as it accurately reflects the data’’). Although a printout or other physical manifestation of computer data is considered the original for purposes of the best evi- dence rule, the underlying data are significant for assessing admissibility under exceptions to the hearsay rule. See Ninth RMA Partners, L.P. v. Krass, 57 Conn. App. 1, 10–11, 746 A.2d 826 (business entry exception to hearsay rule), cert. denied, 253 Conn. 918, 755 A.2d 215 (2000); Federal Deposit Ins. Corp. v. Carabetta, 55 Conn. App. 384, 398–99, 739 A.2d 311 (same), cert. denied, 251 Conn. 928, 742 A.2d 362 (1999). The second sentence in Section 10-1 is modeled on rule 1001 of the Federal Rules of Evidence and on parallel provi- sions of rules from numerous states around the country.