§ 33.13 Absence of Public Records: FRE 803(10)

• Jurisdiction: United States

§ 33.13 Absence of Public Records: FRE 803(10)

Sometimes the absence of a public record is a critical issue—e.g., failure to file an income tax return, or failure to register a firearm. Rule 803(10) addresses this issue and is comparable to Rule 803(7), which governs the absence of a business record. The two exceptions, however, are not identical. Admissibility under Rule 803(10) requires a showing "that a diligent search failed to disclose" a record.¹⁷⁰

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Notes:

^[170] Subdivision (B) was added in 2013 in response to a Supreme Court confrontation case. In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the Court ruled that "a testimonial certificate could be admitted if the accused is given advance notice and does not timely demand the presence of the official who prepared the certificate. The amendment incorporates, with minor variations, a 'notice-and-demand' procedure that...