Sec. 9-3A. Authentication of Business Entries

(a) Authentication of business entries by

certification. The requirement of authentication

as a condition precedent to admitting into evi-

dence a business entry under Section 8-4 may

be satisfied by sworn certification of the custodian

of the record or other qualified witness attesting

to the following:

(1) The affiant is the duly authorized custodian

of the records or another qualified witness who

has and is acting with authority to make the certifi-

cation;

(2) The record was made in the regular course

of business, that it was the regular course of such

business to make such a record, and that it was

made at the time of the act described in the report,

or within a reasonable time thereafter, as required

by General Statutes § 52-180;

(3) The information contained in the record was

based on the entrant’s own observation or on

information of others whose business duty it was

to transmit it to the entrant; and

(4) To the best of the certifying person’s knowl-

edge, after reasonable inquiry, the record or copy

thereof is an accurate version of the record that

is in the possession, custody or control of the

certifying person.

(b) Certification admissible. A certification

made in compliance with subsection (a) is admis-

sible evidence of the matters set forth therein. A

party opposing admissibility of a record offered

through a proper certification under subsection

(a) bears the burden of showing that the record

is not what it purports to be.

(c) Notice and opportunity to contest. A party

intending to offer a record into evidence under

this section must provide written notice of that

intention to all adverse parties and must make the

record and certification available for inspection

sufficiently in advance of their offer into evidence

to provide an adverse party with a fair opportunity

to challenge them.

COMMENTARY

ports to be.

(c) Notice and opportunity to contest. A party

intending to offer a record into evidence under

this section must provide written notice of that

intention to all adverse parties and must make the

record and certification available for inspection

sufficiently in advance of their offer into evidence

to provide an adverse party with a fair opportunity

to challenge them.

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

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 preliminary 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

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. 9-3

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

-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.

Sec. 9-4