Federal Evidence Review

A recent blog post noted that some circuits have found that Certificates of Nonexistence of Record were testimonial hearsay, barred by the Sixth Amendment. See Certificates Of Nonexistence Of Record And The Confrontation Clause – An Additional Development This development will not only have an impact on litigation involving the absence of a government records, but it is clear that it will also have an impact on jury instructions in the federal courts, as illustrated below

As the courts increasingly question the use of CNRs, it is likely that model jury instructions, such as the following will also be called into question:

Third Circuit Instruction 6.26.5861
POSSESSION OF AN UNREGISTERED FIREARM
(26 U.S.C. § 5861)

Count (No.) of the indictment charges (name of defendant) with possession of an unregistered firearm, namely (describe the firearm; e.g., a shotgun having a barrel of less than 18 inches in length), which is a violation of federal law.
In order to find (name) guilty of the offense charged in the indictment, you must find that the government proved each of the following four elements beyond a reasonable doubt.
First: That (name) knowingly possessed a firearm;

Second: That this firearm was a (describe the firearm; e.g., a shotgun having a barrel of less than 18 inches in length);

Third: That (name) knew of the characteristics of the firearm, (that is, that it was (describe the firearm; e.g., a shotgun having a barrel of less than 18 inches in length));

Fourth: That this firearm was (could readily have been put) in operating condition; and

Fifth: That this firearm was not registered to the defendant in the National Firearms Registration and Transfer Record. It does not matter whether (name) knew that the firearm was not registered or had to be registered.

The evidence in this case contains a certificate showing that after diligent search of the National Firearms Registration and Transfer Record, no record was found that the firearm which the government claims was involved in this case was registered to (name). From such evidence you may, but do not need to, find that the government has sustained its burden of proving beyond a reasonable doubt the non-registration of the firearm.

Ninth Circuit Jury Instruction 8.47

8.47 Firearms—Evidence of No License

Exhibit is a certificate of the custodian of the records of the Department of Treasury of the United States of the licenses issued to firearms [dealers] [importers] [manufacturers] [collectors]. A certificate is a written statement of facts signed by a public official.

The certificate states that the custodian made a diligent search of those records and found no record that the defendant was licensed as [a dealer] [an importer] [a manufacturer] [a collector] within the dates set forth in the indictment. From this certificate you may, but need not, decide that the defendant was not licensed to [deal] [import] [manufacture] [collect] firearms.

8.50 Firearms—Evidence of No Authorization

Exhibit is a certificate of the custodian of records of the Department of Treasury of the United States of those unlicensed persons specifically authorized to transport weapons [from one state to another] [from a foreign nation to the United States]. A certificate is a written statement of facts signed by a public official. The certificate states that the custodian made a diligent search of those records and found no record that the defendant had been specifically authorized by the Secretary of the Treasury to transport a weapon in [interstate] [foreign] commerce. From this certificate you may, but need not, decide that the defendant was not authorized to transport a weapon in [interstate] [foreign] commerce.

9.33 Firearms—Evidence of No Registration

Exhibit is a certificate of the custodian of the National Firearms Register and Transfer Record. A certificate is a written statement of facts signed by a public official.

The certificate states that the custodian made a diligent search of the record and found no record of any firearm being registered to the defendant. From this certificate you may, but need not, decide that the firearm described in [Count of] the indictment was not registered to the defendant.