New GLF Summary Video: Hearsay and Absence of a Public Record
We dropped a new summary video about an exception to the hearsay rule known as the rule about “Absence of a Public Record.” It is found in Federal Rule of Evidence 803(10). Please recall that ‘‘Hearsay’’ refers to a statement that is not made while testifying at the current trial or hearing and is offered into evidence to prove the truth of the matter asserted in the statement. A ‘‘statement’’ is what a person said or wrote but also includes nonverbal conduct, if the person intended the conduct as an assertion. The General Rule is that Hearsay statements are not admissible in court.
One exception to this rule says that evidence of the Absence of a Public Record is not hearsay if certain criteria are met.
Specifically, testimony (or a 902 certification) that a diligent search failed to disclose a public record or statement is not hearsay if the testimony or certification is admitted to prove that the record or statement does not exist; or a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.
Also, if in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice—unless the court sets a different time for the notice or the objection.
One example, is where the question in a criminal case was whether the defendant had his bags searched upon arrival to the United States. Evidence that a Customs Inspector would have signed a related form if an inspection had occurred, and that such a form did not exist, was admissible evidence that such an inspection had not actually occurred.
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