9–i
CHAPTER 9
Documentary Evidence
Michelle L. Querijero, Esq.
Shipman & Goodwin LLP, Hartford
§ 9.1 Introduction .......................................................................... 9–1
§ 9.2 Foundation Requirements ................................................... 9–3
§ 9.2.1 Identification and Authentication .......................... 9–3
§ 9.2.2 Relevance and No Undue Prejudice ...................... 9–4
§ 9.2.3 Hearsay Exception ................................................ 9–5
§ 9.2.4 Best Evidence Rule ............................................... 9–5
§ 9.3 Sample Examination ............................................................ 9–5
§ 9.4 Best Evidence Rule ............................................................... 9–8
§ 9.5 Foundation Requirements ................................................. 9–11
§ 9.6 Sample Examination .......................................................... 9–12
§ 9.7 Business Records ................................................................ 9–14
§ 9.7.1 Admissibility ....................................................... 9–15
§ 9.7.2 Hearsay ................................................................ 9–16
§ 9.7.3 Opinion ................................................................ 9–17
§ 9.8 Foundation .......................................................................... 9–17
§ 9.9 Sample Examination .......................................................... 9–18
§ 9.10 Medical Bills and Records ................................................. 9–21
§ 9.10.1 State Court Admissibility .................................... 9–21
§ 9.10.2 Federal Court Admissibility ................................ 9–22
§ 9.11 Foundation .......................................................................... 9–22
A PRACTICAL GUIDE TO EVIDENCE IN CONNECTICUT
9–ii
§ 9.12 Sample Examination ........................................................... 9–23
§ 9.13 Public Records ..................................................................... 9–24
§ 9.14 Foundation ........................................................................... 9–25
§ 9.15 Sample Examination ........................................................... 9–27
§ 9.16 Electronic Evidence ............................................................ 9–27
§ 9.16.1 Computer-Generated Evidence ............................ 9–27
§ 9.16.2 Electronic Messages ............................................. 9–30
§ 9.16.3 Web Pages ............................................................ 9–32
§ 9.17 Foundation ........................................................................... 9–33
§ 9.18 Sample Examination ........................................................... 9–34
9–1
CHAPTER 9
Documentary Evidence
Michelle L. Querijero, Esq.
Shipman & Goodwin LLP, Hartford
Scope Note
This chapter addresses the introduction of documentary evi-
dence. It begins with an overview of the subject and then re-
views the treatment of common types of documentary material.
Each of these topics is addressed through an introduction to the
basic principles and applicable law, an outline of the elements
required for an adequate foundation, and a sample examination.
§ 9.1 INTRODUCTION
Documentary evidence consists of any information that can be introduced at trial
in the form of documents. While it is often thought of as information written
down on paper, such as letters, a contract or a will, documentary evidence more
broadly encompasses information recorded on any media on which information
can be stored. Under both the Conn. Code Evid. and the Fed. R Evid., this includes
information stored on computers and other media, such as e-mails, Web pages,
and other data.
Documentary evidence may be offered as direct or circumstantial proof of a fact
that is material to a case. For example, invoices from medical providers may be
offered to prove economic damages in a personal injury case, the fact that a par-
ty was warned not to destroy evidence material to a claim may be proved with an
e-mail in a spoliation case, and a contract provision and notes from its negotia-
tion may prove that an individual is not a member of a shareholder class that was
scheduled to receive distributions.
While live witness testimony may be interesting to a jury, documentary evidence
can be particularly compelling. Documentary evidence is not subject to an im-
perfect memory, exaggeration, or vague recollections. What you see is what you
get, and documentary evidence can establish a claim for damages or a party’s
statements regarding a material issue with a precision that witness testimony
§ 9.1 A PRACTICAL GUIDE TO EVIDENCE IN CONNECTICUT
9–2
lacks. Likewise, when used to impeach a witness who has the poor judgment to
lie on the stand, documentary evidence can be very dramatic.
Documentary evidence can, however, present challenges at trial. Despite how
important the evidence is to the case, its significance may not be immediately ob-
vious to a trier of fact hearing it for the first time. Failure to make that significance
clear could have a negative impact on your case, as a judge or juror may realize
its import too late in the game to evaluate and connect other critical evidence.
For that reason it is important to emphasize and highlight the portions of a doc-
ument that are critical to your case. Once it has been admitted into evidence, you
should have the witness read the key parts to the jury. It may also be helpful to
blow up excerpts of the document in a demonstrative chart or capture them on an
easel pad that you fill in as the evidence is presented. You should have the wit-
ness explain the content and any terms of art that the jury may not be familiar
with. You also should be sure that the witness makes the relevance and probative
value of the document clear to the jury. Waiting until the jury deliberates could
diminish the impact of the evidence on your case.
Finally, both the state and the federal courts have imposed duties on attorneys
filing documents with the court or introducing them into evidence. Such docu-
ments must have all personal identifying information redacted. Conn. Rules of
Pract. § 4-7; Conn. R. on E-Filing; Conn. Local R. 5. Personal identifying in-
formation that must be redacted in state court includes an individual’s
• date of birth;
• mother’s maiden name;
• motor vehicle operator’s license number;
• Social Security number;
• other government issued identification number except for juris, li-
cense, permit or other business-related identification numbers that
are otherwise made available to the public directly by any govern-
ment agency or entity;
• health insurance identification number; or
• any financial account number, security code, or personal identifi-
cation number.
DOCUMENTARY EVIDENCE § 9.1
9–3
In Federal court, an attorney filing documents must
• change the names of minor children to initials,
• limit financial account numbers and Social Security numbers to
the last four digits,
• limit dates of birth to the year, and
• limit a home address to the city and state.
§ 9.2 FOUNDATION REQUIREMENTS
Documentary evidence must be properly authenticated and a foundation laid
before it can be admitted at trial. While there are classes of documents with special
requirements, laying a foundation generally requires the following steps described
in detail below:
• identification and authentication,
• relevance and no undue prejudice,
• hearsay exception, and
• the best evidence rule.
It should be noted that, at trial, you should make every effort to confer with op-
posing counsel in advance to work out any foundation issues and agree whether
copies may be used at trial. At the final pretrial conference, counsel customarily
agree on whether exhibits can be marked as full exhibits or for identification
only. The latter are then taken up via motions in limine before evidence begins
or during trial.
§ 9.2.1 Identification and Authentication
Before any evidence, including documentary evidence, may be admitted, the
proponent must make a preliminary showing, directly or indirectly, that the prof-
fered evidence is genuine, i.e., that it is what it is claimed to be. Fed. R. Evid.
901; Conn. Code Evid., § 9-1. This is called authentication.
The authentication requirement is not particularly stringent. To authenticate a
document, the party seeking to admit it must provide evidence sufficient to sup-
port a finding that the proffered evidence is what it is claimed to be, i.e., a prima
§ 9.2 A PRACTICAL GUIDE TO EVIDENCE IN CONNECTICUT
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facie showing. Once that prima facie showing is made, the evidence may be ad-
mitted and submitted to the trier of fact, which ultimately determines its
authenticity. State v. Garcia, 299 Conn. 39, 57–58 (2010); Conn. Code Evid., cmt.
to § 9-1.
Evidence may be authenticated directly in a number of ways. For example, when
a party admits to a document’s existence and/or execution in the pleadings, re-
sponses to interrogatories, deposition testimony, stipulation or testimony at trial,
that admission will be sufficient to authenticate the document. Colin C. Tait &
Hon. Eliot D. Prescott, Tait’s Handbook of Connecticut Evidence, § 9.2 (4th ed.,
2008) [hereinafter Tait’s Handbook]. Likewise, a witness with personal knowledge
of the circumstances showing that the document is what it claims to be may offer
testimony to authenticate a document. Conn. Code Evid., cmt. to § 9.1; Fed. R.
Evid. 901(b)(1). Or a person familiar with another person’s handwriting or voice
may authenticate a handwritten document or a recording.
A document also may be authenticated indirectly by circumstantial evidence that
supports its authenticity. For example, writings that use a distinct mode of
speech or that reference details that no one but a specific individual would know
would be authenticated as having been authored by that individual. See, e.g.,
State v. John L., 85 Conn. App. 291, 302–202 (2004) (correspondence found on
a computer hard drive that used a distinctive mode of expression and referenced
specific details were considered authenticated and attributed to the author).
Likewise, a person who takes action in response to an e-mail could have the e-
mail authenticated as genuine and that he or she received it. See, e.g., Internat’l
Brotherhood of Elec. Workers Local 35 v. Comm’n on Civil Rights, 140 Conn
537, 547 (1974) (telephone conversations were authenticated through evidence
of occurrence, subject matter, and conduct of parties).
Certain documents are self-authenticating—no prima facie showing of authen-
ticity is required to be admissible. These include documents executed under seal,
certified copies of public records, signed commercial paper, and ancient docu-
ments. See Fed. R. Evid. 902; Conn. Code Evid., cmt. to § 9-1; § 9-2. See also
Tait’s Handbook, § 9-12, for an extensive discussion on documents that are self-
authenticating. For a discussion of the many ways by which a document may be
authenticated, please see the Conn. Code Evid., cmt. to § 9-1 and the examples
contained in Fed. R. Evid. 901.
§ 9.2.2 Relevance and No Undue Prejudice
As with all evidence, documentary evidence must be relevant to be admissible.
Likewise, documentary evidence may be excluded if its probative value is out-
weighed by the danger of unfair prejudice or surprise, confusion of the issues, or
DOCUMENTARY EVIDENCE § 9.2
9–5
potential to mislead the jury; if it is cumulative; or if it is otherwise excludable
by virtue of the federal or state constitutions or statutes. Conn. Code Evid.,
§§ 4-2–4-3; Fed. R. Evid. 402–403.
§ 9.2.3 Hearsay Exception
If the contents of a document are offered for their truth, they must be brought
within the exceptions to the hearsay rule contained in Conn. Code Evid., § 8.0,
or Fed. R. Evid., Art. VIII. This can be complicated because the document may
contain hearsay on more than one level. So, for example, a business record may
be admissible under the business record exception to the hearsay rule because it
was made in the regular course of business at or near the time of the event being
recorded by a person under a duty to record such a document. But a conversation
contained in a business record may not be admissible unless it also falls within a
hearsay exception, such as being a party admission or a statement against inter-
ests. When seeking to admit documents for their truth, you must analyze all
statements recorded in the document and ensure that both they and the document
fall within a hearsay exception.
§ 9.2.4 Best Evidence Rule
Documentary evidence introduced for the truth of its contents also must comport
with the best evidence rule, which will be discussed in detail in 0 of this chapter.
Briefly, this means that the original document must be admitted into evidence
unless the document falls within a particular exception or is otherwise excused.
Fed. R. Evid. 1002–1004; Conn. Code Evid., § 10.1.
§ 9.3 SAMPLE EXAMINATION
In defense of an action for breach of an agreement not to provide information
concerning a former employee other than his or her dates of employment and job
title in response to inquiries by prospective employers, your client, XYZ, Inc.,
relies in part upon a written release signed by the former employee and given to
ABC, Inc., a prospective employer. This sample examination demonstrates the
introduction of that release.
ATTORNEY: Please identify yourself, stating your occupation and place of
employment.
WITNESS: My name is John Brown, and I am the personnel director of
ABC, Inc.
§ 9.3 A PRACTICAL GUIDE TO EVIDENCE IN CONNECTICUT
9–6
ATTORNEY: How long have you held that position?
WITNESS: Since December nineteen ninety-nine.
ATTORNEY: Are you acquainted with the plaintiff, Thomas Smith?
WITNESS: Yes.
ATTORNEY: When did you first meet Mr. Smith?
WITNESS: I first met Mr. Smith in early April two thousand five, when he
applied for a job as a security officer with ABC, Inc.
ATTORNEY: Please describe the manner in which applications for employ-
ment are processed by ABC’s personnel department.
WITNESS: Each applicant for a position with ABC must come in person to
ABC’s place of business in Hartford, where he or she must
complete and sign an application form and then be interviewed
by one of the five members of the personnel department. Fol-
lowing the interview, each applicant’s form is reviewed, and his
or her references and prior employers are contacted for addi-
tional information by the responsible personnel officer, who
then makes a recommendation to me. I make the final decision
based upon that recommendation and upon my own review of
the application, interview notes, and references.
ATTORNEY: At the time of the initial interview, does ABC, Inc., require the
applicant to sign any documents other than the application form?
WITNESS: Yes, one other document.
ATTORNEY: Please describe that document.
WITNESS: It is a document in which the applicant authorizes ABC, Inc.,
to contact the people listed on his or her application form as
references and former employers to obtain information con-
cerning the applicant, and it also authorizes the references and
former employers to provide such information to ABC, Inc.
ATTORNEY: Who was the personnel officer who interviewed Thomas Smith?
WITNESS: I was.
DOCUMENTARY EVIDENCE § 9.3
9–7
ATTORNEY: Mr. Brown, I hand you a document that has been marked De-
fendant’s Exhibit 1 for identification. Do you recognize it?
WITNESS: Yes.
ATTORNEY: What is it?
WITNESS: This is the authorization form that Mr. Smith signed during his
interview with me on April seventh, two thousand five.
ATTORNEY: Did you see Mr. Smith sign this document?
WITNESS: Yes, I did.
ATTORNEY: What happened to the document after Thomas Smith signed it?
WITNESS: I took it from Mr. Smith and placed it with Mr. Smith’s appli-
cation form in his personnel folder.
ATTORNEY: Did you have any occasion to remove the document from Mr.
Smith’s personnel folder after April seventh, two thousand five?
WITNESS: Yes, twice.
ATTORNEY: When did you remove the document from Mr. Smith’s folder?
WITNESS: The first time was on April seventh, two thousand five, imme-
diately after the interview, when I had photocopies of the doc-
uments made to give to the people named on Mr. Smith’s ap-
plication form as references and former employers. The second
time was today, when I gave it to you.
ATTORNEY: Does the document appear to you to be in the same condition
as it was on April seventh, two thousand five?
WITNESS: Yes.
ATTORNEY: I move that the authorization form signed by Thomas Smith be
admitted in evidence as Defendant’s Exhibit One.
OPPOSING
COUNSEL:
No objection.
JUDGE: It may be admitted.
§ 9.3 A PRACTICAL GUIDE TO EVIDENCE IN CONNECTICUT
9–8
The attorney will then have the witness read the authorization form to the jury or
will do so himself or herself. Thereafter, the witness may be asked to testify re-
garding his communications with XYZ, Inc., one of the employers identified on
Mr. Smith’s application form.
§ 9.4 BEST EVIDENCE RULE
The so-called best evidence rule is often misunderstood, probably because of the
lofty and expansive nature of its name. Despite its name, the rule has nothing to
do with the objective quality of a piece of evidence. It simply means that, when
you are trying to prove a material fact by offering the contents of a document (in
this case, a writing, a photograph, or a recording), you must produce the original
document unless there is some good reason not to, such as a code provision, a
statute, or otherwise. Fed. R. Evid. 1002; Conn. Code Evid., § 10-1.
The purpose behind the rule is to ensure that the trier of fact has the actual lan-
guage contained in a document to the trier of fact whenever that language (the
content of the document) is at issue. When the content of the document is at is-
sue, neither a witness’s description nor a copy that may have been altered are
considered as reliable as the original document. “Originals” include the first
copy of a document, as well as duplicate “originals,” such as a contract executed
in duplicate, both of which are considered “originals.”
As a corollary to the requirement to produce the original document, the rule also
prohibits a witness from testifying from memory as to the language contained in
a document. This can be stated “the document speaks for itself,” and, therefore,
the witness’s recollection is not the best evidence. Production of the original
document, rather than allowing testimony on the document’s contents, helps
reduce the risk of inaccurate recollection of the document’s language and guards
against fraud or selective copying. See Tait’s Handbook, § 10.1.
Applying the rule can be tricky. Just because a writing exists does not always
mean that you must produce it or that witness testimony is prohibited. You must
focus on whether you are trying to prove what the specific language contained in
a document means or whether you are trying to prove a fact about a document.
For example, when the language of a document is at issue—a contract provision,
a defamatory statement, or the contents of a will—the rule clearly applies, and
you must produce the original document. Witness testimony about the language
of the document would also be prohibited. Michael R. Fontham, Trial Technique
& Evidence, 407 (2d ed., 2002).
Other times, you may be using a writing to prove specific facts—that a contract
was written, a deed was delivered, or a conversation took place—that could also
DOCUMENTARY EVIDENCE § 9.4
9–9
be proved by a witness who observed those events taking place. The witness’s
testimony in that case would not be prohibited just because a writing memorial-
ized those facts. State v. Moynahan, 164 Conn. 560, 583 (1973) (“[w]here one
testifies to what he has seen or heard, such testimony is primary evidence regard-
less of whether such facts are reduced to writing”); see also Conn. Code Evid.,
cmt. to § 10-1. So, it is important to understand the purpose behind introducing a
writing to determine whether the best evidence rule applies.
In both state and federal courts, the rule is considered one of preference, rather
than exclusion. Conn. Code Evid., cmt. to § 10-3. This means that, if there is a
good reason that you cannot produce an original document, you may produce
“secondary” evidence (copies) instead. There are a number of practices and ex-
ceptions that have been considered good reasons justifying the use of copies.
First, under both the Connecticut code and the federal rules of evidence, copies
of a writing, a recording, or a photograph are admissible to the same extent as
the original unless there is either a genuine question about the authenticity of the
copy or there is some reason that it would be unfair to admit the copy over the
original. Conn. Code Evid., § 10-2; Fed. R. Evid. 1003. “[W]here the terms of a
document are not in actual dispute, it is inconvenient and pedantic to insist on
the production of the instrument itself.” Farr v. Zoning Bd. of Appeals of the
Town of Manchester, 139 Conn. 577, 582 (1953). Consequently, copies may be
admitted into evidence as long as there is no dispute about the contents of the
document. As a matter of practice, though, counsel should confer before trial to
agree on any documents that may be admitted through copies.
Additionally, copies of certain documents may be deemed admissible by statute.
For example, Conn. Gen. Stat. § 52-180 provides that copies of business records
may be admissible as evidence, provided that they are properly authenticated.
See the discussion in § 9.7 of this chapter.
The Conn. Code Evid. also provides a set of exceptions to the best evidence rule
that closely mirrors the exceptions under the Fed. R Evid. Conn. Code Evid.,
§ 10-3; Fed. R. Evid. 1004. Under these exceptions, secondary evidence may be
offered to prove the contents of a document rather than requiring originals. These
exceptions are the following:
• The originals have been lost or destroyed. Secondary evidence
may be admissible to prove the contents of a document if the par-
ty can demonstrate that the original has been lost or destroyed.
Woicicky v. Anderson, 95 Conn. 534 (1920). Accord Conn. Bank
& Trust Co. v. Wilcox, 201 Conn. 570, 573 (1986) (proponent
must demonstrate that document once existed and that it is cur-
rently unavailable). This can be done by establishing a diligent but
§ 9.4 A PRACTICAL GUIDE TO EVIDENCE IN CONNECTICUT
9–10
unsuccessful search for the document, see State v. Castelli, 92
Conn. 58, 69-70 (1917), or by producing a witness with personal
knowledge of the destruction of the document. Richter v. Drenck-
hahn, 147 Conn. 496, 501 (1960). If, however, a party has de-
stroyed or otherwise concealed original documents for the pur-
pose of evading the requirement to produce them, he or she is
precluded from using secondary evidence at trial. Thus, a party
wishing to use copies under this exception must show that there
was no bad-faith purpose behind the loss or destruction of the doc-
uments. See Mahoney v. Hartford Inv. Corp., 82 Conn. 280 (1909).
• The originals are not obtainable. When a document is in the hands
of another party outside the jurisdiction of the court and there is
no way to obtain jurisdiction for the purpose of a subpoena duces
tecum or other process, a party may prove the contents of the
document through secondary evidence. Shepard v. Giddings, 22
Conn. 282 (1853). Under these circumstances, a party is not re-
quired to provide notice to his opponent to produce the document.
• The originals are in the possession of the opponent. A party oppo-
nent who refuses to provide originals for use at trial cannot be al-
lowed to thwart the judicial process. To fall within this exception,
a party must show that he or she has given reasonable notice to
the opponent to produce the document (informally or via a subpoe-
na duces tecum). If the opponent fails to produce the document,
the party may use secondary evidence without further foundation.
Richter v. Drenckhahn, 147 Conn. at 501.
• The document concerns a collateral matter. If the document re-
lates to something other than the main issues in the case, the orig-
inal need not be produced. For example, an appellant in a zoning
case need not produce a deed proving that he is a property owner
and may appeal. Misisco v. La Maita, 150 Conn. 680, 685 (1963).
See the discussion in Tait’s Handbook, p. 652.
Finally, although the best evidence rule requires an original document to be pro-
duced when proving its contents, both the Conn. Code Evid. and the Fed. Rules
Evid. permit a party to introduce summaries of voluminous documents that can-
not be conveniently examined in court but are, themselves, admissible. Conn.
Code Evid., § 10-5; Fed. R. Evid. 1006. The party wishing to introduce summar-
ies must make the original documents (or copies) available to his opponent at a
reasonable time and place, and the summaries must fairly represent the underly-
ing documents. See Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1,
DOCUMENTARY EVIDENCE § 9.4
9–11
12–13 (1986); McCann v. Gould, 71 Conn. 629, 632 (1899); see also discussion
at Fagiola v. Nat’l Gypsum Co. AC & S., Inc., 906 F.2d 53, 57–59 (2d Cir. 1990).
§ 9.5 FOUNDATION REQUIREMENTS
Laying a proper foundation for the introduction of a document begins with a
threshold determination of whether the best evidence rule applies. When deter-
mining whether the rule is applicable, remember to consider whether you are
trying to prove something within the specific language of the document itself
(e.g., the allegedly defamatory statement at issue in the case) or whether you are
trying to prove a fact related to a document (e.g., that your client learned of the
statement when he or she read it published in the newspaper). Additionally, con-
sider whether a copy of a document is admissible by statute or via an exception.
As a matter of practice, you should review exhibits with opposing counsel in
advance of trial to agree on any documents that may be produced via copy rather
than in the original.
If you have determined that the best evidence rule applies and no other statute or
exception permits you to use secondary evidence, you must lay the proper foun-
dation for the admissibility of the documents. If you have the original document,
you identify and authenticate it in the same manner as you would any other similar
document.
If you do not have the original document, however, you must be prepared to ex-
plain to the court why you fall within one of the statutes or exceptions described
above and why you should be permitted to use secondary evidence under these
circumstances.
• If the original document has been lost or destroyed, you must
show that the document once existed but that a diligent search has
failed to locate it. You also can use the testimony of a witness who
personally witnessed its destruction. In either case, you must
show that your client did not purposefully lose or destroy the doc-
uments to avoid having to produce them. For example, if your cli-
ent scanned documents into a backup system and then destroyed
the originals pursuant to a document control policy, testimony that
this was done in good faith and not to avoid production should
enable you to use the backup copies.
• If the original document is located outside the jurisdiction, you
must show why you could not use alternate methods to obtain the
documents pursuant to a commission and deposition in the other
§ 9.5 A PRACTICAL GUIDE TO EVIDENCE IN CONNECTICUT
9–12
jurisdiction. If you have tried and failed to do so, you should be
able to use secondary evidence.
• If the original document is in the hand of your opponent, you
must demonstrate that your opponent has custody of the original
document and that you gave reasonable notice to your opponent to
produce the document at trial. This notice may be given by the
pleadings, if they show that the document will be required at trial,
or via ordinary discovery requests or subpoena duces tecum. If the
document remains unavailable at trial, you may use secondary ev-
idence.
• If the situation concerns a collateral matter, the best evidence rule
does not apply, and you do not need to produce the original.
Finally, if the documents are too voluminous to be examined conveniently in
court and you wish to use summaries, you must show that the underlying docu-
ments on which the summaries are based are admissible, that you have provided
your opponent with the opportunity to examine and/or copy the underlying doc-
uments, and that the summaries fairly represent the contents of the underlying
documents.
§ 9.6 SAMPLE EXAMINATION
In the course of an action for breach of warranty, one of the principal issues
raised at trial is the timeliness of the notice that the buyer gave to the seller of
defective merchandise. You represent the buyer, ABC Corporation, and are at-
tempting to prove timely notice through its controller, John Smith. The timeli-
ness of notice was not raised by the pleadings; it became an issue only shortly
before trial, when the defendant asserted in its answers to interrogatories that
ABC’s notice was untimely.
ATTORNEY: Directing your attention to the summer of two thousand five,
Mr. Smith, did you have any occasion to communicate with
XYZ Company?
WITNESS: Yes.
ATTORNEY: When did you first have any occasion to communicate with
XYZ?
WITNESS: On July sixteenth, two thousand five.
DOCUMENTARY EVIDENCE § 9.6
9–13
ATTORNEY: What was the nature of that communication?
WITNESS: I wrote a letter to Bill Jones of XYZ.
ATTORNEY: I show you a document that has been marked Plaintiff’s Exhibit
C for identification. Can you identify this document?
WITNESS: This is ABC’s file copy of the letter that I sent to Mr. Jones on
July sixteenth, two thousand five.
ATTORNEY: Your Honor, I offer this letter into evidence as Plaintiff’s Ex-
hibit One.
OPPOSING
COUNSEL:
Objection. Best evidence.
JUDGE (to
attorney):
Is the original letter available?
ATTORNEY: I don’t know, Your Honor. If it is, it would be in the hands of
XYZ, to whom it was sent by my client.
JUDGE: Did you serve XYZ with a notice to produce the original at
trial?
ATTORNEY: No, Your Honor.
JUDGE: In that event, counsel, I will sustain the objection. The letter
will be excluded and Mr. Smith will not be permitted to testify
to its contents.
In such a situation, there may be alternative means to get the July 16, 2005, letter
(or its contents) into evidence:
If the case will take an additional day or more to present, you might immediately
serve a notice to produce and then attempt to introduce the original (or ABC’s
copy if XYZ fails to produce the original) through some other witness or Mr.
Smith called on rebuttal.
You might subpoena Mr. Jones and attempt to get him to admit having received
the original letter and admit that ABC’s file copy correctly sets forth the substance
of ABC’s notice.
§ 9.6 A PRACTICAL GUIDE TO EVIDENCE IN CONNECTICUT
9–14
If you are certain that XYZ will call Mr. Jones as a witness and you are not con-
cerned about the possibility of a directed verdict, you might wait until your
cross-examination of him to have the letter admitted in evidence.
§ 9.7 BUSINESS RECORDS
While the first part of this chapter dealt with issues common to documentary
evidence generally, the remainder of the chapter deals with specific types of evi-
dence and their introduction. This section deals with business records.
Business records are a very common form of documentary evidence introduced
at trial. In general, these are documents generated or received by a person or a
corporation in the course of conducting commercial activities. They are admissi-
ble under the Conn. Code of Evid., § 8-4, which mirrors Conn. Gen. Stat. § 52-
180, and under the Fed. Rules Evid. 803(6) as an exception to the hearsay rule.
The business record exception to the hearsay rule was created to recognize the
inherent trustworthiness of records created and maintained in the course of doing
business. Calcano v. Calcano, 257 Conn. 230, 241 (2001); Potamkin Cadillac
Corp. v. B.R.I. Coverage Corp., 38 F.3d 627, 632 (2d Cir. 1994). Records on
which businesses rely to conduct their affairs are presumed to be reliable. State
v. Kirsch, 263 Conn. 390, 400 (2003); State v. Hayes, 127 Conn. 543 (1941).
Consequently, business records are not viewed with concern for their accuracy.
What constitutes a “business” for the purpose of the business record exception
has been broadly construed, and such records are not limited to those maintained
by commercial businesses. In Connecticut, “business” is defined “to include
business, profession, occupation and calling of every kind.” Conn. Gen. Stat.
§ 52-180(d); Conn. Code Evid., § 8-4. Consequently, in addition to private busi-
ness records, courts have held that
• bank records, State v. Lawler, 30 Conn. App. 827, 832 (1993);
• medical records, Gil v. Gil, 94 Conn. App. 306, 321 (2006);
• police records, Paquette v. Hadley, 45 Conn. App. 577, 581 (1997);
and
• reports of various professionals, see State v. William C., 267 Conn.
686, 701 (2004) (reports of social workers admissible as business
records),
DOCUMENTARY EVIDENCE § 9.7
9–15
all fall within the business record exception to the hearsay rule. Although the
courts have not had occasion to decide, Tait’s Handbook observes that the defini-
tion of “business” would seem to exclude records of activities that are not con-
ducted for commercial or public purposes, such as private memoranda compiled
for personal reasons or as part of a hobby. Tait’s Handbook, p. 544.
Under Conn. Gen. Stat. § 52-180, photocopies of business records may be ad-
mitted in state court to the same extent as original documents. The federal code
also permits photocopies of business records to be admitted. 28 U.S.C. § 1732.
Thus, a party wishing to offer business records into evidence does not need to
worry about the best evidence rule.
§ 9.7.1 Admissibility
To be admissible under the business record exception, the party seeking to admit
the evidence must establish three conditions in accordance with Conn. Gen. Stat.
§ 52-180 (or Fed. R. Evid. 803(6)):
• that the record was made in the regular course of business,
• that it was the regular course of such business to make such a rec-
ord, and
• that the record was made at the time of the act described in the
record or within a reasonable time thereafter.
Conn. Light & Power Co. v. Gilmore, 289 Conn. 88, 116 (2008). Evidence sup-
porting these conditions should be interpreted liberally, but each condition must
be met. See, e.g., Hartford Div., Emhart Indus., Inc. v. Amalgamated Local Un-
ion 376, U.A.W., 190 Conn. 371, 389 (1983) (failure to recall exact time report
was made did not render it inadmissible).
This foundational requirement often requires live witness testimony for admis-
sion. However, the Fed. Rules Evid. 902(11) expressly allows business records
to be admissible if accompanied by a certification by the appropriate custodian
of records if it certifies the above requirements. Under the rule, a party wishing
to admit the record must give notice to the other party and an opportunity to re-
view both the certification and the underlying record. This is often done by dis-
closing the document in discovery and identifying it on your proposed list of
exhibits. However, you may also send a letter notifying opposing council of your
intent to use the document.
The fact that the record may be admitted under the business record exception
does not mean that the record is generally admissible or even that everything
§ 9.7 A PRACTICAL GUIDE TO EVIDENCE IN CONNECTICUT
9–16
contained in the record must be admitted. River Dock & Pile, Inc. v. O & G In-
dus., Inc., 219 Conn. 787, 794 (1991). For example, the information in the rec-
ord still must be relevant, and its probative value must outweigh any undue prej-
udice. River Dock & Pile, Inc. v. O & G Indus., Inc., 219 Conn. Additionally,
“the information contained in the report must be based on the entrant’s own ob-
servation or on information of others whose business duty it was to transmit it to
the entrant. . . . If the information does not have such a basis, it adds another
level of hearsay to the report which necessitates a separate exception to the hear-
say rule in order to justify its admission.” River Dock & Pile, Inc. v. O & G Indus.,
Inc., 219 Conn.
§ 9.7.2 Hearsay
If an otherwise admissible business record contains out-of-court statements,
those statements must be brought within a hearsay exception for them to be ad-
mitted for their truth. Such exceptions include whether the statement is a party
admission or whether the statement was made by an individual under a duty to
report to the business for which he is making the record.
The case of State v. George J., 280 Conn. 551, 594 (2006) provides a good ex-
ample of the levels of hearsay within an otherwise qualified business record that
must be evaluated to be admissible. In that case, a child sexual abuse victim re-
ported the names of witnesses who could corroborate the defendant’s sexual
abuse of the victim to an unnamed “staff member.” The staff member worked at
an institution for troubled youths and was under a business duty to report state-
ments by the youths. The staff member recorded the information in a report re-
garding the victim, which satisfied the three conditions to admit a business record.
The trial court nevertheless excluded the victim’s statement identifying those
corroborating witnesses because the victim was under no duty to make state-
ments to the staff member. State v. George J., 280 Conn. So, even though the
record was admissible as a business record, and even though the staff member
had a duty to report information on the record, the fact that the reported infor-
mation came from another individual not required to report rendered it hearsay
and, thus excludible under the hearsay rule.
In contrast, the court in State v. William C., 267 Conn. 701, held that a social
worker’s report of an investigation into child abuse allegations was deemed ad-
missible. The key difference there was that the social worker was under a duty to
investigate and report the findings of that investigation. Moreover, the report
contained nothing other than the social worker’s personal obligations. Presuma-
bly, if there had been statements of third-parties, the court would have held that
DOCUMENTARY EVIDENCE § 9.7
9–17
those statements were inadmissible if they did not fall into another hearsay ex-
ception.
§ 9.7.3 Opinion
Another issue that may arise within a business record is an opinion memorial-
ized in the record. Such opinions are admissible only if the speaker would be
qualified to give the opinion in oral testimony. State v. Wright, 76 Conn. App. 91
(2003). Thus, an opinion in an accident report concerning what caused a lid on a
dumpster to fall was excluded from evidence because the individual making the
statement never saw the lid fall and was not qualified as a lay witness to opine on
why it fell. Pickel v. Automated Waste Disposal, Inc., 65 Conn. App. 176 (2001).
§ 9.8 FOUNDATION
When seeking to admit business records, you must lay the appropriate founda-
tion for the business record to be admitted. This means that you must establish that
• the document was made in the regular course of business;
• it was the regular course of business to make such a record; and
• the record was made when the act, transaction, or event occurred
or shortly thereafter.
These foundational requirements may be established by witness testimony. It is
not necessary for the witness to have prepared the documents him- or herself or
even to have been employed at the business when they were prepared. State v.
Polanco, 69 Conn. App. 169, 184 (2002). All that is required is that the witness
have sufficient knowledge to testify that it was the regular business practice to
create the record in the course of business within a reasonable time after the oc-
currence of the event in question. Calcano v. Calcano, 257 Conn. 230.
In federal court, a copy certified by the custodian of records may be admitted
without live testimony. The certification must attest that the document was made
at or near that time of the transaction by a person with firsthand knowledge of
the events recorded, that it was kept in the regular course of business, and that it
was the regular practice of the business to make that type of document. See
Fed. R. Evid. 902 (11); 28 U.S.C. § 1746.
Once the document has met the threshold requirements of admissibility as a
business record, it is still subject to other evidentiary requirements. State v. Berger,
§ 9.8 A PRACTICAL GUIDE TO EVIDENCE IN CONNECTICUT
9–18
249 Conn. 218 (1999). Thus, you must follow the general foundation require-
ments as set forth in § 9.2 of this chapter. In addition to being identified and au-
thenticated, the document must
• be shown to be relevant to an issue in the case,
• have its probative value not outweighed by prejudice, and
• be examined to see if it contains any statements that can be con-
sidered hearsay.
If the record contains any statements by a third party, remember to determine
whether those statements fall within an appropriate hearsay exception. Consider
whether the statement was made by an individual with a duty to report state-
ments and whether the individual recording the statement was under a duty to
record such statements. For opinion-based statements, also consider whether the
individual making the statement was qualified to provide opinion testimony
§ 9.9 SAMPLE EXAMINATION
In the course of the trial of a commercial dispute, you might wish to introduce the
results of tests performed on products that were sold and delivered by your client
to its adversary. This exercise demonstrates the introduction of the test results.
ATTORNEY: Please identify yourself, stating your occupation and place of
employment.
WITNESS: My name is John Brown, and I am the director of quality control
for ABC, Inc.
ATTORNEY: How long have you held that position?
WITNESS: Since December two thousand.
ATTORNEY: Did you bring with you certain records at my request?
WITNESS: I did.
ATTORNEY: What are those records?
WITNESS: They are the quality control forms that record our testing of
widgets during the month of April two thousand five.
DOCUMENTARY EVIDENCE § 9.9
9–19
ATTORNEY: Do you have personal knowledge of the manner in which widgets
are tested?
WITNESS: Yes. I am the person responsible for all such testing.
ATTORNEY: Please describe the manner in which widgets were tested by ABC,
Inc., in April two thousand five.
WITNESS: After the widgets have been manufactured and assembled, they
are brought by conveyor belt to the quality control department.
One employee in our department notes on a quality control form
the model number and serial number of each widget and then
places both the widget and the quality control form on one of
the shelves that are labeled “widgets.” Other employees then test
the widgets by visually inspecting them for cosmetic or observ-
able defects and by plugging them into an electrical outlet and
running them for 24 hours. At the end of the period, the em-
ployees note on the quality control form whether the widget has
passed or failed the visual inspection and the performance test
and also note the date of the inspection. All widgets that have
passed the inspection are then sent to the packaging and ship-
ping department, and all widgets that have failed are returned to
the production department for repair or destruction.
ATTORNEY: Are the quality control forms used in the regular course of
ABC’s business?
WITNESS: Yes.
ATTORNEY: Is it the regular course of the business of your department to fill
out these quality control forms?
WITNESS: Yes. We are required to complete one form for every widget that
we inspect.
ATTORNEY: Are the quality control forms filled out in good faith?
WITNESS: Yes.
ATTORNEY: What happens to the forms once the inspection has been com-
pleted?
WITNESS: The quality control form is made up of two identical copies, a
white copy and a blue copy. Once a widget has been inspected,
§ 9.9 A PRACTICAL GUIDE TO EVIDENCE IN CONNECTICUT
9–20
the white copy is removed and placed in a file drawer in my
office.
ATTORNEY: What happens to the blue copy of the quality control form?
WITNESS: It goes with the inspected widget either to the packing and ship-
ping department or back to the production department. When a
widget is shipped to a customer, an employee in the packing and
shipping department enters the date of shipment and the name
and address of the customer on the blue copy and sends it back
to our department, where it is stapled to the white copy for the
same widget.
ATTORNEY: Is it the regular course of the business of the packing and ship-
ping department to make these notations and to return the blue
copies to your department?
WITNESS: Yes. That department is required to complete a form for every
widget it ships and to return the form to us.
ATTORNEY: Is it the regular course of the business of the quality control de-
partment to keep these records?
WITNESS: Yes. I keep all of the quality control forms in files organized by
month. After three years, I send them to our storage warehouse.
ATTORNEY: Would you look at the quality control forms for April two thou-
sand five and pull out any that relate to widgets shipped to XYZ,
Inc.?
WITNESS: All right. I’ve pulled them out.
ATTORNEY: Would you tell us how many forms you have pulled?
WITNESS: There are twenty-five.
ATTORNEY: Your Honor, I offer these twenty-five quality control forms into
evidence as Plaintiff’s Exhibits One-A through One-Y.
OPPOSING
COUNSEL:
Objection. Hearsay.
JUDGE: Objection overruled. The documents may be admitted as busi-
ness records within the scope of General Statutes Section fifty-
two dash one hundred eighty.
DOCUMENTARY EVIDENCE § 9.9
9–21
The attorney will then have the witness explain to the jury that the exhibits show
that all twenty-five widgets were tested during the period of April 10–12, 2005;
that all of them passed both the visual and the performance tests; and that all of
them were shipped to XYZ, Inc. on April 15, 2005.
§ 9.10 MEDICAL BILLS AND RECORDS
Medical bills and records are frequently needed at trial to prove damages for
personal injuries or wrongful death. They may also be needed in family actions
to assist the court in making custodial determinations and may be needed in oth-
er civil actions. To be admissible as business records, a live witness would be
necessary to provide the foundation testimony discussed in the prior section.
This could have the effect of disrupting medical care across a large number of
medical offices and hospitals and could increase expenses significantly. Fortu-
nately, in both state and federal court, there is another way.
§ 9.10.1 State Court Admissibility
General Statutes § 52-174(b) allows signed medical records and bills of treating
medical providers to be admitted into evidence without a live witness in all civil
actions pending on or commenced after October 1, 2001. This applies to both
resident and nonresident treating medical providers, even if they are beyond
subpoena power. Hospital records are also admissible under Conn. Gen. Stat.
§ 4-104 as long as they as not otherwise inadmissible and were made in the
regular course of business by an entity that made such records in the regular
course of business.
Under § 52-174(b), signed medical records and bills are admissible as business
records and it “shall be presumed” that the signature is of the medical practition-
er and that the medical record and bill were made in the ordinary course of busi-
ness. An opposing party may still challenge the admission of the records as gen-
uine by calling the treating medical provider as a witness. The burden is on the
objecting party to do so.
Once admitted, the medical bill or record is treated as a business record. Thus,
portions of the record that are not related to medical “business,” i.e., the patient’s
medical treatment, or that are otherwise inadmissible hearsay should be exclud-
ed from evidence. For example, in Kelly v. Sheehan, 158 Conn. 281, 285 (1969),
the Connecticut Supreme Court excluded portions of a hospital record that iden-
tified the driver who struck the patient, concluding that such information was not
related to the patient’s medical treatment. See also Aspiazu v. Orgera, 205 Conn.
623, 628 (1987) (reaching similar result with respect to physician’s report and
§ 9.10 A PRACTICAL GUIDE TO EVIDENCE IN CONNECTICUT
9–22
stating “[o]nce the report is ruled admissible under the statute, any information
that is not relevant to medical treatment is subject to redaction by the trial court.”).
§ 9.10.2 Federal Court Admissibility
Medical records and bills are also admissible as business records in federal
court. Fed. R. Evid. 803(6); Pace v. Nat’l R.R. Passenger Corp., 291 F. Supp. 2d
93, 102 (D. Conn. 2003). Such records are admissible without witness testimony
if the custodian of records or another qualified person certifies that the copies are
true and accurate copies of the original and that they are business records that
were made in the regular course of business by a person with firsthand
knowledge of the information recorded. Fed. R. Evid. 902. Under the rules, the
party seeking to admit such records must give his opponent reasonable written
notice of the intent to offer the record and must make the record and certification
available for inspection to the opponent. Fed. R. Evid. 902. In practice, this
should be done no later than the final pretrial conference to mark exhibits as full
or for identification only. Counsel may also wish to send a letter during the dis-
covery process with the certification to notify opposing counsel that the record
may be used as evidence at trial.
As in state court, the record is admitted as a business record. Thus, any state-
ments not relating to medical treatment must be brought within an exception to
the hearsay rule or they will be excluded.
§ 9.11 FOUNDATION
Medical bills and records are subject to relevancy and other evidentiary rules.
Assuming that you can establish relevancy, medical bills and records of a treat-
ing provider may be admitted in state court without any foundational witness
testimony as long as they are signed. Conn. Gen. Stat. § 52-174(b). Any infor-
mation in the record related to medical treatment is also admissible under this
section. Information not related to medical treatment must be brought within an
appropriate hearsay exception or it will be excluded.
In federal court, you may introduce medical records that are accompanied by a
certification by the custodian of records that the records are a true and accurate
copy of the original and were made in the regular course of business. To intro-
duce such records, you must give notice to your opponent that you intend to in-
troduce the records and provide the opponent with the opportunity to examine
both the certification and the records to be introduced.
DOCUMENTARY EVIDENCE § 9.11
9–23
When seeking to admit medical records, you should review the records to ensure
that any statements fall within an exception to the hearsay rule. Likewise, state-
ments expressing opinions must meet the requirements for opinion testimony. Any
statement that does not fall within a hearsay exception is likely to be excluded.
§ 9.12 SAMPLE EXAMINATION
The plaintiff is testifying in federal court on direct examination in a motor vehicle
accident jury trial.
PLAINTIFF’S
ATTO RNEY:
Your Honor, at this time I would like to offer in evidence as
Exhibits Nine, Ten, Eleven, and Twelve certified copies of bills
and medical reports of plaintiff’s medical treatment by Dr. Mi-
chael Jones and Dr. Nathaniel Smith. I have given to defend-
ant’s counsel written notice of certified copies. These bills and
reports have previously been marked as Exhibits Nine, Ten,
Eleven, and Twelve for identification.
JUDGE (to
defendant’s
attorney):
Any objections?
DEFENSE
ATTO RNEY:
May I be heard at the sidebar?
JUDGE: Yes.
At sidebar:
DEFENSE
ATTO RNEY:
Your Honor, I filed a motion in limine in relation to these rec-
ords. As you know, you told me that you would rule on the
motion at this time.
JUDGE: What is the specific basis for your motion in limine?
DEFENSE
ATTO RNEY:
Your Honor, I object to the introduction in evidence of one
particular quote by the plaintiff in a report. It is contained on
page three of the report of Dr. Jones, Exhibit Ten for identifica-
tion. The plaintiff is quoted as saying, “I was in an automobile
accident. A man in a big Cadillac speeded right through a red
light and rammed my car.” I ask that the sentence “A man in a
big Cadillac speeded right through a red light and rammed my
car” be excised from the report before it is entered as an exhibit
§ 9.12 A PRACTICAL GUIDE TO EVIDENCE IN CONNECTICUT
9–24
since it has a direct bearing on liability and is not essential in
any way to the plaintiff’s treatment and medical history.
JUDGE (to
plaintiff’s
attorney):
Would you like to be heard?
PLAINTIFF’S
ATTO RNEY:
Well, Your Honor, I believe that this sentence helps explain the
reason for the plaintiff’s serious injuries and that it should not
be deleted from Dr. Smith’s report.
JUDGE (to
plaintiff’s at-
torney):
I disagree. It only bears on the liability issue. The defendant’s
motion in limine is allowed.
I’ll admit the bills and medical reports as they now appear, but
do not show them to the jury for now and do not read that sen-
tence to the jury. During the next break, defendant’s counsel
should get together with the clerk and make sure that the sen-
tence is excised to her satisfaction. Let’s get on with the case
for now.
Sidebar conference ends.
JUDGE: The bills and medical reports of Dr. Jones and Dr. Smith may
be marked as trial exhibits.
Court reporter marks exhibits.
PLAINTIFF’S
ATTO RNEY:
Your Honor, at this time I would like to read to the jury por-
tions of Exhibits Ten and Twelve, the medical reports of Dr.
Jones and Dr. Smith, respectively.
JUDGE: You may read them.
Plaintiff’s attorney reads portions of the reports to the jury.
§ 9.13 PUBLIC RECORDS
Public records are documents that are maintained by government officials in the
course of the exercise of their official duties. These may include birth and marriage
records, tax records, land records, corporate certificates filed with the secretary of
state, and a host of other official documents.
DOCUMENTARY EVIDENCE § 9.13
9–25
As in the case of medical records, both federal and state courts classify public
records as self-authenticating. In other words, they are admissible without foun-
dation testimony from a live witness, provided that they are accompanied by a
certification from the appropriate custodian of the record.
Public records are subject to concerns over embedded hearsay statements in the
same way that medical records are. Portions of a public record may be excluded
from evidence if it can be shown that the information contained in the public
record came from someone who did not have the duty to report such infor-
mation. For example, the court in Baughman v. Collins, 56 Conn. App. 34, 38
(1999) excluded a police report that contained statements from three witnesses to
an accident. The court held that, because the three witnesses had no duty to report
their observations, their statements were inadmissible. Baughman v. Collins, 56
Conn. App. In contrast, the court noted, if the report had contained information
solely from three other investigating officers, it would have been admissible be-
cause those officers were under a duty to report.
Additionally, public records may be challenged if they do not bear sufficient
indicia of trustworthiness. In excluding a state investigator’s preliminary investi-
gative report, the District Court identified several factors to consider: “(1) the
timeliness of the investigation; (2) the special skill or experience of the official;
(3) whether a hearing was held and the level at which conducted; [and] (4) [any]
motive of the investigator inconsistent with accuracy.” Barlow v. Connecticut,
319 F. Supp. 2d 250, 258 (D. Conn. 2004) aff'd sub nom. Barlow v. Dep’t of Pub.
Health, Connecticut, 148 F. App’x 31 (2d Cir. 2005). In that case, the investiga-
tor’s report had been based on multiple hearsay statements and had not been
finalized. These negative factors were sufficient to overcome the presumption of
reliability afforded to public records.
§ 9.14 FOUNDATION
In state court, public records are self-authenticating under the Conn. Code Evid.,
§ 9-3, which provides:
The requirement of authentication as a condition
precedent to admitting into evidence a record, report,
statement or data compilation, in any form, is satis-
fied by evidence that (A) the record, report, statement
or data compilation authorized by law to be recorded
or filed in a public office has been recorded or filed in
that public office, or (B) the record, report, statement
or data compilation, purporting to be a public record,
§ 9.14 A PRACTICAL GUIDE TO EVIDENCE IN CONNECTICUT
9–26
report, statement or data compilation, is from the pub-
lic office where items of this nature are maintained.
Similarly, in federal court, public records are self-authenticating under Fed. R.
Evid. 902(1) and (2), which provide that the following documents do not need
live testimony to be admissible:
(1) Domestic Public Documents That Are Sealed and
Signed. A document that bears:
(A) a seal purporting to be that of the United States;
any state, district, commonwealth, territory, or insular
possession of the United States; the former Panama
Canal Zone; the Trust Territory of the Pacific Islands;
a political subdivision of any of these entities; or a
department, agency, or officer of any entity named
above; and
(B) a signature purporting to be an execution or attes-
tation.
(2) Domestic Public Documents That Are Not Sealed
but Are Signed and Certified. A document that bears
no seal if:
(A) it bears the signature of an officer or employee of
an entity named in Rule 902(1)(A); and
(B) another public officer who has a seal and official
duties within that same entity certifies under seal--or
its equivalent--that the signer has the official capacity
and that the signature is genuine.
Rule 902(3) contains a similar provision for foreign public documents, while
Rule 902(5) permits the use of certified copies of public documents bearing the
appropriate seal or signature.
To admit a public record into evidence, be sure to obtain a certification from the
appropriate public official that the documents are true and accurate copies of a
public record and have the documents signed or sealed by the appropriate public
official or stamp.
As stated previously, the document is admitted only to the extent that any busi-
ness record would be admitted. Thus, you should carefully examine the docu-
ment to determine if any portion of it was based on a hearsay statement or other
DOCUMENTARY EVIDENCE § 9.14
9–27
information from a person not under a duty to report. Additionally, be prepared
for a challenge if the record lacks indicia of trustworthiness, such as containing
statements not within the official duties of the public office, not being recorded
timely, or not being finalized.
§ 9.15 SAMPLE EXAMINATION
In this example, in the course of shareholder derivative suit, counsel wishes to
introduce several documents that ABC, Inc., has filed with the secretary of state.
The following exchange can take place either at sidebar or in open court.
ATTORNEY: Your Honor, I wish to offer in evidence certified copies of the
articles of organization of ABC, Inc., and of three certificates
of change of directors or officers. Each of these documents has
been certified by the secretary of state as a true and accurate
copy of the documents that were filed by ABC, Inc., and each
of the original documents was required by statute to be filed
with the secretary.
OPPOSING
COUNSEL:
No objection.
JUDGE: The documents may be admitted.
§ 9.16 ELECTRONIC EVIDENCE
Electronic evidence is increasingly common in modern litigation. It may include
computer-generated evidence, electronic mail, Web pages, and/or metadata. Both
the Connecticut and the federal rules of evidence have provided guidance to liti-
gants with respect to discovery of such evidence. See Fed. R. Civ. P. 16(b), 26,
and 34; Conn. R. of Pract., §§ 13-9, 13-14. It now is routine to provide and re-
ceive potentially vast quantities of electronic information during the course of
litigation. This chapter discusses issues surrounding several forms of electronic
evidence.
§ 9.16.1 Computer-Generated Evidence
Computer-generated evidence—evidence created from computer data rather
than evidence that merely presents other evidence through copies or otherwise
(see State v. Melendez, 291 Conn. 693, (2009))—is admissible under the busi-
ness record exception to the hearsay rule in federal court and pursuant to Conn.
§ 9.16 A PRACTICAL GUIDE TO EVIDENCE IN CONNECTICUT
9–28
Gen. Stat. § 52-180 in state court. Over the years, however, both state and feder-
al courts have expressed concern that computer-generated records may not pos-
sess sufficient indicia of reliability to be admissible. “Business records that are
generated by computers present structural questions of reliability that transcend
the reliability of the underlying information that is entered into the computer.
Computer machinery may make errors because of malfunctioning of the ‘hard-
ware’ . . . [or] defects in the ‘software.’” Am. Oil Co. v. Valenti, 179 Conn. 349,
358–59 (1979).
[R]eliability problems may arise through or in: (1)
the underlying information itself; (2) entering the in-
formation into the computer; (3) the computer hard-
ware; (4) the computer software (the programs or in-
structions that tell the computer what to do); (5) the
execution of the instructions, which transforms the
information in some way—for example, by calculat-
ing numbers, sorting names, or storing information
and retrieving it later; (6) the output (the information
as produced by the computer in *a useful form, such
as a printout of tax return information, a transcript of
a recorded conversation, or an animated graphics
simulation); (7) the security system that is used to
control access to the computer; and (8) user errors,
which may arise at any stage.
State v. Swinton, 268 Conn. 781, 813 (2004).
Thus, a party seeking to admit computer-generated information in state court
must demonstrate the basic reliability of the computer system and process in-
volved in creating the evidence. State v. Swinton, 268 Conn.; F.D.I.C. v. Carabet-
ta, 55 Conn. App. 369, 376 (1999). This requires “testimony by a person with
some degree of computer expertise, who has sufficient knowledge to be exam-
ined and cross-examined about the functioning of the computer.” American Oil
Co. v. Valenti, 179 Conn. at 359.
The qualification of the foundation witness depends on the type of computer-
generated record that is being presented. Notably, the foundation witness does
not need to be a computer programmer or the person who entered the data into
the system. American Oil Co. v. Valenti, 179 Conn. at 377. Instead, the witness
must be familiar with the method used to create the evidence and the technology
supporting it and must be able to be cross-examined by opposing counsel on
those methods. State v. Swinton, 268 Conn. at 813. To lay an adequate foundation,
a witness must establish that
DOCUMENTARY EVIDENCE § 9.16
9–29
(1) the computer equipment is accepted in the field as
standard and competent and was in good working or-
der, (2) qualified computer operators were employed,
(3) proper procedures were followed in connection
with the input and output of information, (4) a relia-
ble software program was utilized, (5) the equipment
was programmed and operated correctly, and (6) the
exhibit is properly identified as the output in question.
State v. Swinton, 268 Conn. at 811-12.
Applying this standard, the Connecticut Supreme Court upheld the admission of
digitally enhanced images of bite marks on a murder victim that revealed detail
not visible to the naked eye, as well as bite mark images with superimposed im-
ages of the defendant’s teeth. State v. Swinton, 268 Conn. at 814. The foundation
witness provided testimony on the program and process used to create the imag-
es, the qualifications of the persons involved, the means by which the images
were output, and the data upon which they relied, all of which was sufficient to
establish the reliability of the images. See also State v. Polanco, 69 Conn. App.
169, 184 (2002) (computer-generated maps admissible with testimony from
technician who verified process and accuracy of program); Duplissie v. Devino,
96 Conn. App. 673, 697 (2006) (job cost details for a construction project ad-
missible with testimony from construction professional familiar with process
and data); and F.D.I.C. v. Carabetta, 55 Conn. App. at 376 (summary of mort-
gage-related information for series of foreclosures admissible with testimony
from bank manager who prepared information). Additionally, a business’s day-
to-day reliance on computerized records may be sufficient to establish the relia-
bility of such records. State v. Swinton, 268 Conn. at 807 (2004).
In federal court, computer-generated information is subject only to the founda-
tion requirements of noncomputerized business records in Fed. R. Evid. 803(6);
see Potamkin Cadillac Corp. v. B.R.I. Coverage Corp., 38 F.3d 627, 632 (2d Cir.
1994). Nevertheless, federal courts have excluded computer-generated infor-
mation when it has determined that the computer-related method of preparation
was untrustworthy or unreliable. Potamkin Cadillac Corp. v. B.R.I. Coverage
Corp., 38 F.3d. For example, in Potamkin, the court upheld the exclusion of an
accounting history prepared from a computer system because it had been com-
piled from data that contained numerous uncorrected errors. Potamkin Cadillac
Corp. v. B.R.I. Coverage Corp., 38 F.3d. In contrast, the court in Health Alliance
Network, Inc. v. Cont’l Cas. Co., 245 F.R.D. 121, 130 (S.D.N.Y. 2007), aff’d,
294 F. App’x 680 (2d Cir. 2008), admitted a computerized list extracted from a
database used in the ordinary course of business when a witness testified to relia-
ble methods of collecting and maintaining the database.
§ 9.16 A PRACTICAL GUIDE TO EVIDENCE IN CONNECTICUT
9–30
Significantly, trustworthiness considerations in both state and federal court are
sufficient to render any business record, not just computer-generated ones, in-
admissible. The issue when dealing with computer-generated records, however,
is that opposing counsel may be able to attack the reliability of the underlying
data because the collection and maintenance of computer data may be unfamiliar
to the court.
§ 9.16.2 Electronic Messages
Electronic mail, social networking messages, and cell phone texts (“e-
messages”) are increasingly common forms of private writing that pose various
authentication issues. The need for authentication arises because electronic
communications may be generated by someone other than the named sender.
People often leave their e-mail or social networking accounts or cell phones
logged in and accessible to others who may send e-messages through that ac-
count or device. At other times, passwords or Web sites may be compromised by
hackers. Consequently, proving only that an e-message came from a particular
account, without more, is inadequate to lay the foundation that the e-message
was sent from a particular individual. State v. Eleck, 130 Conn. App. 632, 639,
(2011).
In 2011, the Connecticut Appellate Court extensively analyzed methods of au-
thentication for e-messages from around the country and held that an e-message
that had been shown to be from a Facebook account lacked sufficient foundation
to attribute it to a particular individual. State v. Eleck, 130 Conn. App. at 642-43.
While recognizing the impact of e-messages and, in particular, the emergence of
social media, with respect to communicating, the court concluded that “[a]n
electronic document may continue to be authenticated by traditional means such
as the direct testimony of the purported author or circumstantial evidence of
‘distinctive characteristics’ in the document that identify the author.” State v.
Eleck, 130 Conn. App. at 640; see Conn. Code Evid., cmt. to § 9-1(a). The court
held that proving that a message had been sent from a particular account was not
sufficient to establish that it had been sent by a particular individual; additional
circumstantial evidence was required to attribute the message to the individual.
State v. Eleck, 130 Conn. App. at 642.
While the court did not set forth any particular standard by which to authenticate
e-messages, it did cite to a variety of cases in which e-messages had been au-
thenticated with more-specific identifying characteristics, including the following:
• Letters on a computer hard drive were authenticated by “the mode of
expression of the writing, detailed references to the defendant’s fi-
nances and circumstantial evidence linking the defendant’s presence
DOCUMENTARY EVIDENCE § 9.16
9–31
at home with the time the letters were created on his home com-
puter.” State v. Eleck, 130 Conn. App. at 641, citing State v. John
L., 85 Conn. App. 291, 298–302, cert. denied, 272 Conn. 903
(2004).
• E-mails were authenticated not only by the defendant’s e-mail ad-
dress but also by inclusion of specific factual data known to the
defendants. State v. Eleck, 130 Conn. App. at 643, citing United
States v. Siddiqui, 235 F.3d 1318, 1322–23 (11th Cir. 2000).
• Chat room message attributed to the author when he showed up at
a meeting arranged in chat. United States v. Tan, 200 F.3d 627,
630–31 (9th Cir. 2000).
• E-mails were authenticated by their distinctive content, including
a discussion of various identifiable personal and professional mat-
ters. State v. Eleck, 130 Conn. App., citing United States v. Sa-
favian, 435 F. Aup.2d 36, 40 (D. D.C. 2006).
• Text messages to the victim were authenticated when sent from
the defendant’s cell phone with details known by only a few peo-
ple. State v. Eleck, 130 Conn. App., citing Dickens v. State, 175
Md. App. 231, 237–41 (2007).
Note that each of these cases employed a traditional doctrine for authentication,
such as the content doctrine, which provides that a writing can be authenticated
by showing that only the author was aware of specific details, or an action being
consistent with a message, which provides that a writing can be attributed to an
individual who takes an action consistent with the message, such as attending a
prearranged meeting. The common thread is, as with any private writing, that
each e-message contained distinctive characteristics sufficient to tie the messages
back to the original sender, beyond simply having been sent from the individual’s
account or cell phone.
In federal court, the Second Circuit upheld the admission of e-mails and a tran-
script of a chat room conversation when a participant in the e-mail string and the
chat testified that the exhibits were accurate records of the defendant’s conversa-
tion. United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007). The court first
noted that the standard for authentication is simply one of “reasonable likeli-
hood” and is “minimal.” United States v. Gagliardi, 506 F.3d. Because a witness
who had been a party to the conversation testified as to the accuracy of the e-
mails and chat transcripts, that was sufficient to authenticate the documents.
United States v. Gagliardi, 506 F.3d. See also U.S. Info. Sys., Inc. v. Int’l Broth.
of Elec. Workers Local Union No. 3, No. 00 CIV. 4763 RMB JCF, 2006 WL
§ 9.16 A PRACTICAL GUIDE TO EVIDENCE IN CONNECTICUT
9–32
2136249 (S.D.N.Y. Aug. 1, 2006) adhered to on reconsideration, 00 CIV.4763
RMB JCF, 2006 WL 2556339 (S.D.N.Y. Sept. 5, 2006) (admitting e-mail chain
produced pursuant to subpoena and containing details about various meetings);
but see Bell v. Rochester Gas & Elec. Corp., 329 F. App’x 304, 306 (2d Cir.
2009) (excluding racially offensive e-mail purportedly sent by supervisor when
no evidence that e-mail had been sent through business e-mail server).
Finally, note that e-messages offered for the truth of their contents will need to be
brought within a hearsay exception to be admissible, even if properly authenticated.
§ 9.16.3 Web Pages
Printouts of Web pages may also be admissible. They are generally authenticated
in the same manner as any other document. Some courts may accept authentica-
tion by way of an affidavit by the person who downloaded and printed the Web
page and can attest that the Web page is what it purports to be. See, e.g., Petra
Const. Co. v. Sacred Heart Univ., No. X03HHDCV096013738S, 2011 WL
2536196 (Conn. Super. Ct. May 26, 2011). As with any other documentary evi-
dence, when Web pages are offered for their truth, they must be brought within a
hearsay exception.
In the case of private companies, testimony that a printout is an accurate depic-
tion of the Web page in question is usually sufficient to authenticate the Web
page. Printouts of government Web sites, however, are self-authenticating as
official documents pursuant to Fed. R. Evid. 902(5). Schaghticoke Tribal Nation
v. Kempthorne, 587 F. Supp. 2d 389, 397 (D. Conn. 2008) aff’d, 587 F.3d 132
(2d Cir. 2009).
In an interesting case, copies of historical printouts—depicting a Web site as it
had been some time in the past—of a business’s Web site were upheld as admis-
sible by the Third Circuit in United States v. Bansal, 663 F.3d 634, 667–668 (3d
Cir. 2011). That case involved the use of an archiving service called the Internet
Archive, which runs a Web site called the Wayback Machine. United States v.
Bansal, 663 F.3d at 668. The Wayback Machine maintains a catalogue of virtual-
ly all Web sites on the Internet and has a database of Web sites spanning more
than a decade. United States v. Bansal, 663 F.3d. To authenticate the archived
printouts, a witness was called to testify as to how the Wayback Machine works
and how reliable its contents are. The witness also compared the archived shots
with authenticated images of the Web site in question and concluded that the
archived printouts were what they purported to be. On appeal, the Third Circuit
affirmed, concluding that this evidence was sufficient to support a finding that
the archived printouts were authentic. United States v. Bansal, 663 F.3d.
DOCUMENTARY EVIDENCE § 9.17
9–33
§ 9.17 FOUNDATION
Foundation requirements vary depending on the type of document being admit-
ted. Additionally, if the document is offered for its truth, you must consider
whether it can be brought within a hearsay exception. Relevance and prejudice
also apply.
In the case of computer-generated evidence, a witness with sufficient competen-
cy must establish that
• the computer equipment is accepted in the field as standard and
competent and was in good working order,
• qualified computer operators were employed,
• proper procedures were followed in connection with the input and
output of information,
• a reliable software program was utilized,
• the equipment was programmed and operated correctly, and
• the exhibit is properly identified as the output in question.
To admit the evidence for its truth, a witness must establish the requirements for
a business record:
• the evidence is a business record that was created or maintained
by a person who had personal knowledge of the events recorded
(or from information from a person with a duty to report such in-
formation) in the regular course of business;
• the information was recorded at or near the time of the event or
transaction; and
• it is the regular practice of the business to make and keep such in-
formation.
For an e-message admitted against an individual, the proponent must establish
authenticity via direct or circumstantial evidence, including
• the account from which it was sent,
• sufficient content information or details to establish that the party
was the author, and
§ 9.17 A PRACTICAL GUIDE TO EVIDENCE IN CONNECTICUT
9–34
• evidence that the recipient took action based on the contents of
the e-message
For a Web page, a witness must testify that he or she downloaded and printed the
Web page. If using an archiving service, such as the Wayback Machine, a wit-
ness must provide the appropriate foundation to support the process and method
by which the service functions and the reliability of the data produced.
§ 9.18 SAMPLE EXAMINATION
In the course of a breach of contract suit, the attorney wishes to introduce a
computer printout that sets forth the dates, amounts, payees, and purpose of all
checks issued by ABC, Inc., during 2004 in order to show that ABC, Inc., made
certain payments to XYZ, Inc. This sample dialog demonstrates the introduction
of that printout and assumes that counsel will be required to show the reliability
of the process that produced the printout.
ATTORNEY: Please identify yourself, stating your occupation and place of
employment.
WITNESS: My name is John Brown, and I am the director of manage-
ment and information services for ABC.
ATTORNEY: How long have you held that position?
WITNESS: Since January two thousand two.
ATTORNEY: What are your responsibilities as the director of management
and information services?
WITNESS: I am responsible for the collection, organization, mainte-
nance, and dissemination of all data used by ABC in the regu-
lar course of its business.
ATTORNEY: Does ABC, Inc., make use of computers in the processing of
such data?
WITNESS: Yes. Since July two thousand three, ABC has used computers
instead of storing hard copies of invoices.
ATTORNEY: Are you personally familiar with the computer hardware and
software used by ABC?
DOCUMENTARY EVIDENCE § 9.18
9–35
WITNESS: Yes. I was responsible for our acquisition of an IBM system
in June two thousand three, and I have participated in the de-
sign of all software programs currently in use by ABC.
The witness then describes, in answer to a series of questions, the IBM system
and its capabilities, as well as the particular software program used to replace
ABC’s cash disbursement journal.
ATTORNEY: Are the IBM system and the software program you have just
described used in the regular course of ABC’s business?
WITNESS: Yes.
ATTORNEY: Is it the regular course of business of ABC to scan invoices
into the system and store the data on CD-ROMs instead of in
filing cabinets in storage?
WITNESS: Yes.
ATTORNEY: Who at ABC, Inc., is responsible for entering into the com-
puter data regarding these invoices?
WITNESS: Bill Smith, ABC’s controller, and his two assistants, Marge
Davis and Tom Jones.
ATTORNEY: Are you familiar with the manner in which such data is en-
tered into the system?
WITNESS: Yes.
ATTORNEY: Please describe the way in which it is done.
WITNESS: When invoices are received at headquarters, they are paid and
then scanned into the system by my department.
ATTORNEY: How is information retrieved?
WITNESS: After the invoices are scanned, there are staff members who
code all the information such as date of invoice, date paid,
amount, vendor name, and description.
ATTORNEY: When is all this information entered into the system?
WITNESS: After the invoice is paid. My department has people scanning
and coding daily.
§ 9.18 A PRACTICAL GUIDE TO EVIDENCE IN CONNECTICUT
9–36
ATTORNEY: What happens to the original invoice?
WITNESS: A hard copy is retained until it is paid and then destroyed.
The witness then describes the system’s safeguards for correcting errors.
ATTORNEY: For how long is the data stored in the computer?
WITNESS: The data is stored on the network for six months and then
remains indefinitely on CD-ROMs.
ATTORNEY: How is information regarding the invoices retrieved from the
computer?
WITNESS: Queries can be executed on the system to retrieve the invoice
by any of the coded fields. Furthermore, any of the invoices
can be printed.
ATTORNEY: Does ABC use computer printouts of invoices in the regular
course of its business?
WITNESS: Yes.
ATTO RN EY: H ow?
WITNESS: When there are disputes with vendors, when we are negotiat-
ing relationships with vendors, and for accounting purposes.
ATTORNEY: Have you brought with you any of the invoices?
WITNESS: Yes.
ATTORNEY: Was this printout generated in the manner you have just de-
scribed?
WITNESS: Yes.
ATTORNEY: Was it generated by ABC in the regular course of its business?
WITNESS: Yes.
ATTORNEY: Is it the regular course of ABC’s business to generate
printouts of the invoices?
WITNESS: Yes.
DOCUMENTARY EVIDENCE § 9.18
9–37
ATTORNEY: Your Honor, I offer the computer printout into evidence as
Plaintiff’s Exhibit One.
OPPOSING
COUNSEL:
Objection.
JUDGE: Objection overruled. The printout may be admitted as a busi-
ness record.
The attorney will then have the witness explain to the jury the relevant infor-
mation set forth in the printout.
In the course of the same suit, the attorney for XYZ, Inc., wishes to introduce
printouts of ABC, Inc.’s, Web page, as it appeared in 2004, to prove that ABC
was selling XYZ’s products long after a license agreement had expired.
ATTORNEY: Please identify yourself, stating your occupation and place
of employment.
WITNESS: My name is Lucy Smith, and I am a manager of archive
services at the Internet Archive Company.
ATTORNEY: What are your responsibilities as manager of archive ser-
vices?
WITNESS: I supervise the computer and storage systems by which we
routinely download and preserve Web sites.
The witness describes the method by which the Internet Archive Company
downloads and preserves Web pages as they existed on certain dates.
ATTORNEY: At my request, did you search the archives and locate the
Web page registered to ABC, Inc., as it existed on Novem-
ber first, two thousand four?
WITNESS: Yes.
ATTORNEY: Did you print out that Web page?
WITNESS: Yes.
ATTORNEY: Have you brought the printout with you today?
WITNESS: Yes.
§ 9.18 A PRACTICAL GUIDE TO EVIDENCE IN CONNECTICUT
9–38
ATTORNEY: Your Honor, I offer the printout into evidence as Defend-
ant’s Exhibit Two.
OPPOSING
COUNSEL:
Objection.
JUDGE: Objection overruled. The Web page is an admission of a
party-opponent, and furthermore, the defendant has made
a sufficient showing that the printout is authentic.