Conn. R. Evid. 10-3

As amended through April 25, 2023

Section 10-3 - Admissibility of Other Evidence of Contents

The original of a writing, recording or photograph is not required, and other evidence of the contents of such writing, recording or photograph is admissible if:

(1)Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent destroyed or otherwise failed to produce the originals for the purpose of avoiding production of an original; or

(2)Original not obtainable. No original can be obtained by any reasonably available judicial process or procedure; or

(3)Original in possession of opponent. At a time when an original was under the control of the party against whom it is offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the proceeding, and that party does not produce the original at the proceeding; or

(4)Collateral matters. The contents relate to a collateral matter.

Conn. Code. Evid. 10-3

Amended Dec. 14, 2017, to take effect 2/1/2018.

COMMENTARY

The best evidence rule evolved as a rule of preference rather than one of exclusion. E.g., Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 12, 513 A.2d 1218 (1986). If the proponent adequately explains the failure to produce the original, "secondary'' evidence of its contents then may be admitted. Section 10-3 describes the situations under which production of the original is excused and the admission of secondary evidence is permissible.

Although the issue has yet to be directly addressed, the cases do not appear to recognize degrees of secondary evidence, such as a preference for handwritten copies over oral testimony. See Sears v. Howe, 80 Conn. 414, 416-17, 68 A. 983 (1908).Section 10-3 recognizes no degrees of secondary evidence and thus any available evidence otherwise admissible may be utilized in proving contents once production of the original is excused under Section 10-3.

(1) Originals lost or destroyed.

Subdivision (1) reflects the rule in Woicicky v. Anderson, 95 Conn. 534, 536, 111 A. 896 (1920). A proponent ordinarily proves loss or destruction by demonstrating a diligent but fruitless search for the lost item; see State v. Castelli, 92 Conn. 58, 69-70, 101 A. 476 (1917); Elwell v. Mersick, 50 Conn. 272, 275-76 (1882); see also Host America Corp. v. Ramsey, 107 Conn. App. 849, 855-56, 947 A.2d 957, cert. denied, 289 Conn. 904, 957 A.2d 870 (2008); or by producing a witness with personal knowledge of destruction. See Richter v. Drenckhahn, 147 Conn. 496, 502, 163 A.2d 109 (1960).

The proponent is not precluded from offering secondary evidence when the purpose in losing or destroying the original is not to avoid production thereof. Mahoney v. Hartford Investment Corp., 82 Conn. 280, 287, 73 A. 766 (1909); Bank of the United States v. Sill, 5 Conn. 106, 111 (1823).

(2) Original not obtainable.

Subdivision (2) covers the situation in which a person not a party to the litigation possesses the original and is beyond reasonably available judicial process or procedure. See, e.g., Shepard v. Giddings, 22 Conn. 282, 283-84 (1853); Townsend v. Atwater, 5 Day (Conn.) 298, 306 (1812).

(3) Original in possession of opponent.

Common law excuses the proponent from producing the original when an opposing party in possession of the original is put on notice and fails to produce the original at trial. See, e.g., Richter v. Drenckhahn, supra, 147 Conn. 501; City Bank of New Haven v. Thorp, 78 Conn. 211, 218, 61 A. 428 (1905). Notice need not compel the opponent to produce the original, but merely provides the option to produce the original or face the prospect of the proponent's offer of secondary evidence. Whether notice is formal or informal, it must be reasonable. See British American Ins. Co. v. Wilson, 77 Conn. 559, 564, 60 A. 293 (1905).

(4) Collateral matters.

Subdivision (4) is consistent with Connecticut law. Misisco v. LaMaita, 150 Conn. 680, 685, 192 A.2d 891 (1963); Farr v. Zoning Board of Appeals, 139 Conn. 577, 582, 95 A.2d 792 (1953).