§ 33.11 Absence Of Business Records: FRE 803(7)

• Jurisdiction: United States

§ 33.11 Absence Of Business Records: FRE 803(7)

In some situations, it is the absence of a business record that is important. For example, in a prosecution for theft of a rental car, it would be necessary to show that the car had not been rented to a legitimate customer at the time of the theft. Testimony that a search of the company's computer showed no record of a rental during the time the car was stolen would be admissible.¹³⁴ Rule 803(7) recognizes a hearsay exception for absence of a business record.¹³⁵

The rule must be read in conjunction with Rule 803(6).¹³⁶ The drafters observed: "Failure of a record to mention a matter which would ordinarily be mentioned is satisfactory evidence of its nonexistence. While probably not hearsay as defined in Rule 801, decisions may be found which classify the evidence not only as hearsay but also as not within any exception. In order to set the question at rest in favor of admissibility, it is specifically treated here."¹³⁷

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Notes:

^[134] See United States v. De Georgia, 420 F.2d 889, 893 (9th Cir. 1969) (Hertz rent-a-car; "[T]his same circumstance offers a like assurance that if a business record designed to note every transaction of a particular kind contains no notation of such a transaction between specified dates, no such transaction occurred between those dates. Moreover, . . . that assurance is not likely to be enhanced by the only other means of proving such a negative; that is by bringing into court all of the documents involving similar transactions during the period in question to prove that there was no record of the transactions alleged not to have occurred, and calling as witnesses all company personnel who had the duty of entering into transactions of that kind during the critical period and inquiring whether the witnesses remembered any additional transactions for which no record had been produced.").

^[135] A comparable...