Conn. Code Evid. § 9-3A

History

(Adopted March 29, 2022, to take effect June 13, 2022.) COMMENTARY (a) Authentication of business entries by certification. This provision offers a procedure by which parties can authenti- cate certain business records other than through the testimony of a foundation witness. The procedure is intended to help the parties determine in advance of the evidentiary proceeding whether there is a real dispute as to authenticity, and to increase the efficiency of the authentication process when there is not. The certification process, which has been adopted in some form in many other jurisdictions, will increase effi- ciency and reduce logistical burdens by limiting the need for a party to produce a witness at the evidentiary proceeding for the purpose of authenticating a business record. A proponent seeking to authenticate a business record under this section must present a certification containing information that would be sufficient to establish authenticity were that information provided by a witness at the evidentiary proceeding. If the certification provides information that would be insufficient to authenticate the record if the certifying person testified, then a sufficient showing of authenticity has not been made under this section. Even without the certification procedure, parties often will stipulate to the authenticity of business records; use of that practice remains unaffected by this provision. More broadly, the certification process is provided as an alternative to other means of authentication, and nothing herein is intended to prevent a party from authenticating a business record through witness testimony, or through a combination of certification and witness testimony. (b) Certification admissible. The court makes the prelimi- nary determination of whether the proponent has made a suffi- cient showing of authenticity, but the fact finder ultimately determines whether the evidence is what its proponent claims it to be. See Section 1-3 (b), commentary. Consequently, when a record is authenticated by means of certification, the certifica- tion itself must be admissible for consideration by the fact finder as part of its determination. (c) Notice and opportunity to contest. The certification procedure is intended to increase the efficiency of the authenti- cation process with respect to business records, but the proce- dure must not be used to curtail or impair a party’s ability to test or contest the authenticity of such record. Section 9-3A (c) ensures that a party will have the opportunity to ascertain whether grounds exist to contest the accuracy or validity of a certification. Determining the precise timing and disclosure proceedings that are necessary to offer a fair opportunity to contest authentication will require balancing the efficiency sought to be achieved by the certification process with the rights of all parties to raise and litigate the issue when a good faith doubt may exist regarding the authenticity of a record. Sec.9-4. Subscribing Witness’ Testimony If a document is required by law to be attested to by witnesses to its execution, at least one sub- scribing witness must be called to authenticate the document. If no attesting witness is available, the document then may be authenticated in the same manner as any other document. Documents that are authenticated under Section 9-2 need not be authenticated by an attesting witness. COMMENTARY Certain documents, such as wills and deeds, are required by law to be attested to by witnesses. See General Statutes § 45a-251 (wills); General Statutes § 47-5 (deeds). At common law, the proponent, in order to authenticate such a document, must have called at least one of the attesting witnesses or satisfactorily have explained the absence of all of the attesting witnesses. Thereafter, the proponent could authenticate the document through the testimony of nonattesting witnesses. See, e.g., Loewenberg v. Wallace, 147 Conn. 689, 696, 166 A.2d 150 (1960); Kelsey v. Hanmer, 18 Conn. 311, 317–18 (1847). The rule requiring attesting witnesses to be produced or accounted for applies only when proving the fact of valid execu- tion, i.e., genuineness, not when proving other things such as the document’s delivery or contents. 4 J. Wigmore, Evidence (4th Ed. 1972) § 1293, pp. 709–10. Section 9-4 exempts ancient documents from the general rule on the theory that the genuineness of a document more than thirty years old is established simply by showing proper custody and suspicionless appearance; see Section 9-2; with- out more. See, e.g., Borden v. Westport, 112 Conn. 152, 161, 151 A. 512 (1930); Jarboe v. Home Bank & Trust Co., 91 Conn. 265, 269, 99 A. 563 (1917). Dicta in two Connecticut cases suggest that it is unneces- sary to call subscribing witnesses or explain their absence when the document at issue is only collaterally involved in the case. Great Hill Lake, Inc. v. Caswell, 126 Conn. 364, 369, 11 A.2d 396 (1940); see Pepe v. Aceto, 119 Conn. 282, 287–88, 175 A. 775 (1934). Another case suggests the same exemption for certified copies of recorded deeds. See Loewe- nberg v. Wallace, supra, 147 Conn. 696. Although these exemptions, unlike the one for ancient documents, were not included in the text of the rule, they are intended to survive adoption of Section 9-4.