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Going Negative: How an Overlooked Hearsay Exception Can Prove a Positive

By Dawn C. Van Tassel

As trial attorneys, we understandably tend to focus on the positive evidence we have amassed in discovery, e.g., the key documents and the fantastic admissions. While we stack up the mountains of paper in preparation for trial, it is easy to overlook a powerful and persuasive weapon—namely, the evidence that isn’t in the record.

The absence of a record, commonly referred to as “negative evidence,” is just as admissible as any regularly kept business or public record, provided the proper foundation is laid. And it can be just as persuasive to a finder of fact as any smoking gun email.

Federal Rules of Evidence 803(7) and 803(10) establish exceptions to the hearsay rule that enable an advocate to present negative evidence. Rule 803(7) permits a party to offer evidence “that a matter is not included in the memoranda reports, records or data compilations, in any form” of any regularly conducted activity that would normally be admissible under Rule 803(6). Rule 803(10) provides a similar exception for absences of entries in a public record.1 In enacting the two exceptions, the Rules Committee recognized that there would be overlap between the two, which it considered “harmless duplication.”2

The reasoning behind the hearsay exceptions for regularly kept business records and public records should apply with equal force to the absence of such records. “The exception to the hearsay rule for both business and public records [is] grounded on the high probability of their accuracy. Such records are maintained regularly and systematically by persons having a duty to make accurate records and are relied upon in the course of daily operations.”3 If we trust businesses and governmental entities to keep reliable records, it necessarily follows that the lack of a record should be just as reliable.4

Negative evidence is not only reliably admissible, but it can also be powerfully persuasive. An extreme example can be found in the case of Hunt v. Liberty Lobby.5 E. Howard Hunt, who was convicted of federal crimes arising from the Watergate break-in, sued a newspaper publisher for libel. The allegedly libelous article stated that Hunt was involved in a conspiracy to kill President John F. Kennedy. This exposé was based in part upon an alleged internal memorandum discovered at the CIA. To prove the falsity of the article, Hunt submitted affidavits from CIA officials that stated they were the custodians of particular records and that after diligent search of the appropriate files, they were unable to locate any evidence of a CIA memorandum incriminating Hunt. On appeal, the Eleventh Circuit ruled that the affidavits were properly admitted under Rule 803(10).

While most pieces of negative evidence do not rise to the level of proving that one did not conspire to assassinate a sitting president, the absence of a record can nonetheless be very helpful in any number of situations.

In another example, United States v. Gentry, a criminal defendant falsely reported to his coworkers, and eventually the sheriff, that he bit into a pin when he ate M&M candy bought from a vending machine. This false report of food tampering garnered the defendant a sentence of 12 months’ of imprisonment. On appeal, the defendant complained that the court should not have admitted testimony from an employee of the manufacturer that there were no other reports of pins in M&M candy. The Seventh Circuit affirmed the trial court’s admission of this evidence in accordance with Rule 803(7).6 While the Gentry case arose in a criminal context, one could easily see its application in a civil suit for product liability as well.

Laying a Proper Foundation
Although the wording under each rule varies slightly, in getting negative evidence admitted, the proponent’s goal is the same—to demonstrate that a diligent search was made in a reliable compilation of data and no evidence of a particular record or event was found. The reliability of the record keeper and the diligence of the search made for the records are threshold issues for the court to decide.7 Once deemed admissible, however, the weight of the negative evidence is determinable by the jury.8

Proving Diligence
Rule 803(10) requires proof that a “diligent search” was conducted of the public record. There is no magic language required to meet this burden, however, and if a witness testifies in a manner that is consistent with a diligent search, it is not necessary that he or she use the words “diligent search” to lay the proper foundation.9 However, it is appropriate for a court to exclude evidence if there is no testimony or evidence about how the search was made or where the circumstances otherwise indicate a lack of trustworthiness.10

While Rule 803(7) does not use the words “diligent search,” it is nonetheless advisable for a party seeking to admit negative evidence of business records to establish that a thorough search of the business record was made so the court can assess the trustworthiness of the records themselves.

Proving Reliability
The second important element in laying a foundation for negative evidence is to prove that the data at issue are reliably kept. This requirement can be fulfilled through the testimony of a witness knowledgeable about the records.11 A custodian of records, as that term is commonly understood, need not be the person to testify, however. In fact, no one need testify in person at all, and the evidence can come in via affidavit.12 A certification that complies with Rule 902 suffices in lieu of live testimony.13

While a  custodian of records may be an ideal witness, when it comes to searching public records, at least, the courts appear to presume some measure of reliability, thereby permitting the witness who performed the search, whether the records custodian or not, to testify. For instance, in an action to recover military benefits that hinged on the marital status of the defendant, the Fifth Circuit affirmed the trial court’s admission of testimony by an FBI agent that “he had searched the public records in Mobile County, Alabama, and found no record that appellant and Anderson had been divorced.”14 The court rejected the argument that the absence of public records could be proven only by the custodian. While the rules “provide that the certificate of an official record is admissible to prove the lack of a particular record,” these rules do not exclude other evidence to the same effect.15

Given that searches of records will increasingly be made in computer databases, any number of individuals could supplant the traditional notion of a custodian of records since “[t]raditional notions of physical ‘custody’ in hearsay rules makes little sense when applied to computer data.”16

Rebutting Negative Evidence
If reliability and diligence are key, then it stands to reason that the opponent of negative evidence should use unreliability and lack of a diligent search to keep the proffered evidence out.

Not only can a litigant attack a source of documentation as unreliable in general, but some thought also must be given to whether the records are reliable in a particular instance with respect to the negative evidence sought to be introduced. In a recent First Circuit ruling, the trial court admitted Certificates of Nonexistence of Record from the National Firearms Registration and Transfer Record (NFRTR) over defendant’s objection that the database had been unreliable in the past.17 Defendant’s only evidence of unreliability was an unpublished, undated article by a private attorney that was not made part of the record. The trial court held that the defendant failed to prove that the database was currently unreliable as to him, which was affirmed on appeal.18 What’s the lesson? Not only should litigants look for general indicia of unreliability but also any additional factors that would make the data unreliable in a particular instance.

An opponent of negative evidence may also contest what constitutes a regularly kept record in the particular database or record compilation. For instance, in Brodersen v. Sioux Valley Memorial Hospital,19 a medical malpractice action, plaintiff sought to prove that the physician did not refer him to another doctor. Plaintiff argued that because the medical record did not reflect a referral, no referral was provided. The physician testified that it was not his practice to record referrals in the file. Plaintiff argued that doctors should record such information and generally do so. The court held that the “absence of entry” rule does not hinge on industry standards for record keeping. Rather, to avail himself of the rule, the plaintiff must prove that this physician in particular regularly recorded referrals as a part of his business.20

Making the Most of What Isn’t There

With a little foresight, a party can gain a tactical advantage through the use of negative evidence. So long as the records searched are reliably kept and a diligent search is performed, the proponent can literally make a persuasive point out of nothing at all.
Michael D. Wade and Sharon Walburn are with Garan Lucow Miller, P.C. in Grand Rapids, Michigan.

This article appears in the forthcoming Spring 2009 issue of Verdict, from the Trial Practice Committee.


End Notes

  1. 31 ALR 3rd 872.
  2. See U.S. v Collins, 226 F.3d 457 (6th Cir. 2000).
  3. Pacific Improvement Co. v Weidenfeld, 227 F.224 (2nd Cir. 1921).
  4. U.S. v Collins, 226 F.3d 457 (6th Cir. 2000) (providing on excellent discussion of the pros and cons).
  5. State v Dolezyny, 176 VT 203, 844 A.2d 773 (2004) (excellent discussion and background on juror questioning of witnesses).
  6. State v Fisher, 99 Ohio St. 3d 127, 789 NE2d 222 (2003).

  • July 8, 2009 – I would point out that the Texas Court of Criminal Appeals has forbidden the practice of allowing jurors to submit questions to witnesses in criminal trials. But, I know a Dallas state judge who for years allowed his jurors to submit questions. He obviously thought it beneficial, but he said that even the most skeptical lawyer who was subjected to the procedure ended up loving it. I wonder if there are lawyers who have experienced the same who have a different opinion?
  • July 9, 2009 – There is a body of research on jury questions. empirical research has revealed significanr increases in juror comprehension and satisfaction with the process. Shari Diamond of the Northwestern Law School has extensive research on this topic.


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