Rules 803(7) and 803(10): Absence of Records

Let’s start with a brainteaser:

If there are no North Carolina criminal appellate cases citing to Rules of Evidence 803(7) or 803(10), does that prove that the rules are never used?

If you know your rules of evidence, then you get it. (You’re probably not that amused… but you get it.) If you need a quick refresher on these two rules, or an explanation of why it would be surprising that there are virtually no criminal appellate cases mentioning either of them, read on.

Summary of the Rules

For a recap of Rules 803(6) (“business records”) and 803(8) (“public records”), see Professor Smith’s previous blog posts here and here.

Rule 803(7) states that when records of a regularly conducted activity have been admitted under Rule 803(6), but the records contain no entries regarding a matter “of a kind” that one would expect to find in the records, that absence may be used “to prove the nonoccurence or nonexistence of the matter.” G.S. 8C-1, Rule 803(7). For example, in a larceny by employee case, the absence of a sales receipt for an item of merchandise could be used to prove that the employee did not ring up the sale before taking the item out of the store.

Rule 803(10) applies the same principle to public records admitted under Rule 803(8). See G.S. 8C-1, Rule 803(10), Official Commentary (“The principle of proving nonoccurrence of an event by evidence of the absence of a record which would regularly be made of its occurrence, developed in Exception (7) with respect to regularly conducted activities, is here extended to public records of the kind mentioned in Exceptions (8) and (9).”). For example, in a case charging failure to file or pay state taxes, the absence of any tax records containing filings under the defendant’s name for the last six years could be used to prove that he never filed or paid those taxes.

“You Can’t Prove a Negative”

You’ve probably heard this bit of folk wisdom before. It has a nice ring to it, and it makes a certain amount of intuitive sense if you don’t think about it too hard. Unfortunately, it just isn’t true. I’m not qualified to go all the way down the epistemological rabbit hole of explaining it, but if you’re philosophically curious you might enjoy reading Professor Steven Hales’ thoughtful explanation of why the logic behind that expression is flawed.

Criminal attorneys can turn to a much easier explanation: they know it isn’t true because they do it all the time. In addition to the two examples above regarding sales receipts or tax records, prosecutors are routinely called upon to prove that a defendant was not acting in self-defense, or the defendant did not have a valid driver’s license, or a pawn shop owner did not verify that the person selling him an item was the lawful owner. Defense attorneys might similarly want to prove the that the defendant did not have a weapon during the robbery, or the victim did not have a sufficient opportunity to see the assailant’s face during the assault.

But what, exactly, is happening in those situations? How is it logically possible to prove a “negative fact?” Or to paraphrase Professor Hales, how does one prove that a unicorn does not exist? He would do it by pointing out that no credible witness has ever seen or photographed a unicorn, there is no fossil record to show that they once roamed the plains, their existence would be contrary to the known principles of biology and evolution, and so on. Therefore, we can safely conclude (at least beyond a reasonable doubt) that there are no unicorns.

In other words, rather than searching in vain for evidence of absence, we’re proving the matter indirectly by showing the absence of evidence. In cases involving records, Rules of Evidence 803(7) and 803(10) are two of the best tools that attorneys have at their disposal to do that. If the matter had occurred as alleged, there would be evidence of it somewhere in these records; but there isn’t any, and therefore we can conclude that the matter never happened.

Sounds pretty useful, right?

So Where Are the Cases?

I admit I may have simply failed to uncover them, but my search for any North Carolina criminal appellate cases citing to either Rule 803(7) or Rule 803(10) returned exactly zero results.

In one embezzlement case, State v. Frierson, 153 N.C. App. 242 (2002), the court never directly mentioned Rule 803(7) but it did appear to be relying on the reasoning of that rule to hold that bank account statements were properly admitted as business records “for the purpose of showing the absence of some of the purported deposits, and to show the true status of the company’s deposits.” Otherwise, as far as I can tell, both rules appear to be wholly absent from the North Carolina criminal case law.

To some extent, the absence of any criminal decisions discussing Rule 803(10) might be explained by the portion of Rule 803(8)(B) that generally bars the state from offering public records of “matters observed by police officers and other law enforcement personnel” in criminal cases. If the state can’t use the records, then it is not surprising that the state isn’t arguing facts and inferences based on an absence in those records, either. On the other hand, Rule 803(8)(B) has been interpreted to allow the state to use public records regarding “routine or ministerial” matters, even if they were observed and documented by a law enforcement agency. See, e.g., State v. Forte, 360 N.C. 427 (2006) (SBI reports regarding chain of custody and DNA analysis were not excluded from evidence by Rule 803(8)(B): reports contained routine non-adversarial matters, and their use in court was only one potential purpose among many); State v. McLean, 205 N.C. App. 247 (2010) (not plain error under Rule 803(8)(B) to allow defendant’s arrest photo and booking information into evidence as a public record). In light of that flexibility in the rule, one would expect a criminal case regarding what was not contained in a public record to have come up at some point on appeal, but as far as I can tell it never has.

Returning to the question at the start of this post — given that a certain portion of all criminal cases are inevitably appealed, and given that a dispute about the admissibility of evidence at trial is a very common issue on appeal, isn’t the use of Rule 803(7) or 803(10) the kind of matter we would expect to find discussed in at least a couple of appellate cases? And if there is no such record, then pursuant to the logic of the rules themselves, must we conclude that they are never being used?

I’m asking that question tongue-in-cheek, of course. I can recall using both rules occasionally in practice, and I’m sure many other readers have as well. But considering the wide variety of circumstances where the rules could be helpful, I am curious to hear any thoughts in the comments about why they seem to be so rarely cited in the case law.