Conn. R. Evid. 9-1
Conn. Code. Evid. 9-1
COMMENTARY
(a) Requirement of authentication.
Before an item of evidence may be admitted, there must be a preliminary showing of its genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings, sound recordings, electronically stored information, real evidence such as a weapon used in the commission of a crime, demonstrative evidence such as a photograph depicting an accident scene, and the like. E.g., State v. Bruno, 236 Conn. 514, 551, 673 A.2d 1117 (1996) (real evidence); Shulman v. Shulman, 150 Conn. 651, 657, 193 A.2d 525 (1963) (documentary evidence); State v. Lorain, 141 Conn. 694, 700-701, 109 A.2d 504 (1954) (sound recordings); Hurlburt v. Bussemey, 101 Conn. 406, 414, 126 A. 273 (1924) (demonstrative evidence). The category of evidence known as electronically stored information can take various forms. It includes, by way of example only, e-mails, Internet website postings, text messages and "chat room'' content, computer-stored records, data, metadata and computer generated or enhanced animations and simulations. As with any other form of evidence, a party may use any appropriate method, or combination of methods, described in this Commentary, or any other proof to demonstrate that the proffer is what the proponent claims it to be, to authenticate any particular item of electronically stored information. Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 545-46 (D. Md. 2007).
The proponent need only advance "evidence sufficient to support a finding'' that the proffered evidence is what it is claimed to be. Once this prima facie showing is made, the evidence may be admitted and the ultimate determination of authenticity rests with the fact finder. See, e.g., State v. Bruno, supra, 236 Conn. 551-53; Neil v. Miller, 2 Root (Conn.) 117, 118 (1794); see also Shulman v. Shulman, supra, 150 Conn. 657. Consequently, compliance with Section 9-1(a) does not automatically guarantee that the fact finder will accept the proffered evidence as genuine. The opposing party may still offer evidence to discredit the proponent's prima facie showing. Shulman v. Shulman, supra, 659-60.
Evidence may be authenticated in a variety of ways. They include, but are not limited to, the following:
(1) A witness with personal knowledge may testify that the offered evidence is what its proponent claims it to be. See, e.g., State v. Conroy, 194 Conn. 623, 625-26, 484 A.2d 448 (1984) (establishing chain of custody); Pepe v. Aceto, 119 Conn. 282, 287-88, 175 A. 775 (1934) (authenticating documents); Booker v. Stern, 19 Conn. App. 322, 333, 563 A.2d 305 (1989) (authenticating photographs); Lorraine v. Markel American Ins. Co., supra, 241 F.R.D. 544-45 (electronically stored information);
(2) A person with sufficient familiarity with the handwriting of another person may give an opinion concerning the genuineness of that other person's purported writing or signature. E.g., Lyon v. Lyman, 9 Conn. 55, 59 (1831);
(3) A contested item of evidence may be authenticated by comparing it with a preauthenticated specimen See, e.g., State v. Ralls, 167 Conn. 408, 417, 356 A.2d 147 (1974) (fingerprints, experts), overruled on other grounds by State v. Rutan, 194 Conn. 438, 441, 479 A.2d 1209 (1984); Tyler v. Todd, 36 Conn. 218, 222 (1869) (handwriting, experts or triers of fact); Lorraine v. Markel American Ins. Co., supra, 241 F.R.D. 546 (electronically stored information);
(4) The distinctive characteristics of an object, writing or other communication, when considered in conjunction with the surrounding circumstances, may provide sufficient circumstantial evidence of authenticity. See International Brotherhood of Electrical Workers Local 35 v. Commission on Civil Rights, 140 Conn. 537, 547, 102 A.2d 366 (1953) (telephone conversations); 2 C. McCormick, Evidence (7th Ed. 2013) § 224, pp. 94-96 ("reply letter'' doctrine, under which letter B is authenticated merely by reference to its content and circumstances suggesting it was in reply to earlier letter A and sent by addressee of letter A); C. Tait & E. Prescott, Tait's Handbook of Connecticut Evidence (5th Ed. 2014) § 9.7, pp. 694-95 (same); Lorraine v. Markel American Ins. Co., supra, 241 F.R.D. 546-48 (electronically stored information); see also State v. Jackson, 150 Conn. App. 323, 332-35, 90 A.3d 1031 (unsigned letter), cert. denied, 312 Conn. 919, 94 A.3d 641 (2014); State v. John L., 85 Conn. App. 291, 302, 856 A.2d 1032 (computer-stored letters), cert. denied, 272 Conn. 903, 863 A.2d 695 (2004).
(5) Any person having sufficient familiarity with another person's voice, whether acquired from hearing the person's voice firsthand or through mechanical or electronic means, can identify that person's voice or authenticate a conversation in which the person participated. See State v. Jonas, 169 Conn. 566, 576-77, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S. Ct. 1132, 47 L. Ed. 2d 331 (1976); State v. Marsala, 43 Conn. App. 527, 531, 684 A.2d 1199 (1996), cert. denied, 239 Conn. 957, 688 A.2d 329 (1997);
(6) Evidence describing a process or a system used to produce a result and showing that the process or system produces an accurate result. This method of authentication, modeled on rule 901(b) (9) of the Federal Rules of Evidence, was used in State v. Swinton, 268 Conn. 781, 811-13, 847 A.2d 921 (2004), to establish the standard used to determine the admissibility of computer simulations or animations. The particular requirements applied in Swinton were "fairly stringent''; id., 818; because that case involved relatively sophisticated computer enhancements using specialized software. In other cases when a proponent seeks to use this method to authenticate electronically stored information, the nature of the evidence establishing the accuracy of the system or process may be less demanding. See U-Haul International, Inc. v. Lubermens Mutual Casualty Co., 576 F.3d 1040, 1045 (9th Cir. 2009) (authentication of computer generated summaries of payments of insurance claims by manager familiar with process of how summaries were made held to be adequate); see also State v. Melendez, 291 Conn. 693, 709-710, 970 A.2d 64 (2009) (admission of unmodified footage of drug transaction on DVD not subject to heightened Swinton standard); cf. State v. Shah, 134 Conn. App. 581, 39 A.3d 1165 (2012) (chat room transcripts not computer generated evidence and therefore not subject to heightened Swinton standard).
(7) Outgoing telephone calls may be authenticated by proof that: (1) the caller properly placed the telephone call; and (2) the answering party identified himself or herself as the person to whom the conversation is to be linked. Hartford National Bank & Trust Co. v. DiFazio, 6 Conn. App. 576, 585, 506 A.2d 1069, cert. denied, 200 Conn. 805, 510 A.2d 192 (1986);
(8) Stipulations or admissions prior to or during trial provide two other means of authentication. See Stanton v. Grigley, 177 Conn. 558, 559, 418 A.2d 923 (1979); see also Practice Book §§ 13-22 through 13-24 (in requests for admission); Practice Book § 14-13(4) (at pretrial session);
(9) Sections 9-2 and 9-3 (authentication of ancient documents and public records, respectively), provide additional methods of authentication.
(b) Self-authentication.
Both case law and statutes identify certain kinds of writings or documents as self-authenticating. A self-authenticating document's genuineness is taken as sufficiently established without resort to extrinsic evidence, such as a witness' foundational testimony.State v. Howell, 98 Conn. App. 369, 379-80, 908 A.2d 1145 (2006). Subsection (b) continues the principle of selfauthentication, but leaves the particular instances under which selfauthentication is permitted to the dictates of common law and the General Statutes.
Self-authentication in no way precludes the opponent from coming forward with evidence contesting authenticity; see Atlantic Industrial Bank v. Centonze, 130 Conn. 18, 19, 31 A.2d 392 (1943); Griswold v. Pitcairn, 2 Conn. 85, 91 (1816); as the fact finder ultimately decides whether a writing or document is authentic. In addition, self-authenticating evidence remains vulnerable to exclusion or admissibility for limited purposes under other provisions of the Code or the General Statutes.
Common-law examples of self-authenticating writings or documents include:
(1) writings or documents carrying the impression of certain official seals. E.g., Atlantic Industrial Bank v. Centonze, supra, 130 Conn. 19-20; Barber v. International Co. of Mexico, 73 Conn. 587, 602, 603, 48 A. 758 (1901); Griswold v. Pitcairn, supra, 2 Conn. 90-91; and
(2) marriage certificates signed by the person officiating the ceremony. E.g., Northrop v. Knowles, 52 Conn. 522, 525-26, 2 A. 395 (1885).
Familiar statutory examples of self-authenticating writings or documents include:
(1) acknowledgments made or taken in accordance with the Uniform Acknowledgment Act, General Statutes §§ 1-28 through 1-41; see General Statutes § 1-36; and the Uniform Recognition of Acknowledgments Act, General Statutes §§ 1-57 through 1-65; see General Statutes § 1-58;
(2) copies of records or documents required by law to be filed with the secretary of state and certified in accordance with General Statutes § 3-98;
(3) birth certificates certified in accordance with General Statutes § 7-55;
(4) certain third-party documents authorized or required by an existing contract and subject to the Uniform Commercial Code; General Statutes § 42a-1-307; see also General Statutes § 42a-8-114(2) (signatures on certain negotiable instruments);
(5) marriage certificates issued pursuant to General Statutes § 46b-34; see General Statutes § 46b-35; and
(6) copies of certificates filed by a corporation with the secretary of the state in accordance with law and certified in accordance with General Statutes § 52-167.
It should be noted that the foregoing examples do not constitute an exhaustive list of self-authenticating writings or documents. Certified copies of many public records for example are self-authenticating pursuant to statute. See, e.g., General Statutes § 1-14. Of course,writings or documents that do not qualify under subsection (b) may be authenticated under the principles announced in subsection (a) or elsewhere in Article IX of the Code.