Conn. R. Evid. 9-4
If a document is required by law to be attested to by witnesses to its execution, at least one subscribing witness must be called to authenticate the document. If no attesting witness is available, the document then may be authenticated in the same manner as any other document. Documents that are authenticated under Section 9-2 need not be authenticated by an attesting witness.
Conn. Code. Evid. 9-4
COMMENTARY
Certain documents, such as wills and deeds, are required by law to be attested to by witnesses. See General Statutes § 45a-251 (wills); § 47-5 (deeds). At common law, the proponent, in order to authenticate such a document, must have called at least one of the attesting witnesses or satisfactorily have explained the absence of all of the attesting witnesses.
Thereafter, the proponent could authenticate the document through the testimony of nonattesting witnesses. See e.g., Loewenberg v. Wallace, 147 Conn. 689, 696, 166 A.2d 150 (1960); Kelsey v. Hanmer, 18 Conn. 311, 317-18 (1847).
The rule requiring attesting witnesses to be produced or accounted for applies only when proving the fact of valid execution, i.e., genuineness, not when proving other things such as the document's delivery or contents. 4 J. Wigmore, Evidence (4th Ed. 1972) § 1293, pp. 709-10.
Section 9-4 exempts ancient documents from the general rule on the theory that the genuineness of a document more than thirty years old is established simply by showing proper custody and suspicionless appearance; see Section 9-2; without more. See, e.g., Borden v. Westport, 112 Conn. 152, 161, 151 A. 512 (1930); Jarboe v. Home Bank & Trust Co., 91 Conn. 265, 269, 99 A. 563 (1917).
Dicta in two Connecticut cases suggest that it is unnecessary to call subscribing witnesses or explain their absence when the document at issue is only collaterally involved in the case. Great Hill Lake, Inc. v. Caswell, 126 Conn. 364, 369, 11 A.2d 396 (1940); see Pepe v. Aceto, 119 Conn. 282, 287-88, 175 A. 775 (1934). Another case suggests the same exemption for certified copies of recorded deeds. See Loewenberg v. Wallace, supra, 147 Conn. 696. Although these exemptions, unlike the one for ancient documents, were not included in the text of the rule, they are intended to survive adoption of Section 9-4.