Establishing The Non-Existence Of Public Records Under FRE 803(10)

Ninth Circuit considers the application of FRE 803(10) to establish the non-existence of a special use permit to operate a snowmobile on forest service land; the testimony of the officer was sufficient to meet the requirements of the rule, in United States v. Parker, _ F.3d _ (9th Cir. July 31, 2014) (No. 13-30157)

Under FRE 803(10), evidence concerning the non-existence of a public record may be admitted. Specifically, FRE 803(10)(A) allows a trial court to introduce “[t]estimony—or a certification under Rule 902—that a diligent search failed to disclose a public record or statement” where “the testimony or certification is admitted to prove that the record or statement does not exist” or that “a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.” The Ninth Circuit recently considered the application of the rule.

Trial Court Proceedings: Admitting Agent’s Testimony About The Non-Existence Of Public Records

In the case, defendant Parker was a commercial snowmobile operator who was charged with conducting a “work activity or service” on United States Forest Service land without a special use authorization. The Forest Service requires a special use permit for commercial snowmobile activities. On one occasion, Forest Service Officer Steve Roberson reminded the defendant that he “had no special use authorization,” he was violating Forest Service regulations, and “should turn his equipment around.” Defendant Parker refused the instruction. On a second occasion, Officer Roberson saw defendant Parker leading other snowmobilers onto national forest property without a special use permit. At his trial, Officer Roberson testified that the defendant lacked a special use permit. After his bench trial convictions, the defendant challenged the testimony of the officer to establish the lack of a permit.

Ninth Circuit Review: Considering The Requirements Of FRE 803(10)

The Ninth Circuit affirmed the admission of the testimony confirming there were no special use permits under FRE 803(10). As the Ninth Circuit concisely explained,

Roberson testified that the Forest Service maintained a register of people who have special use permits; that he had knowledge of how the register was maintained; that he had access to the register as part of his duties; that as part of his duties he knew where people could obtain special use permits; that he used the register to keep track of people who have special use permits and of activities taking place on National Forest land; and that he reviewed those records as part of his duties. Roberson further testified that he had checked the Forest Service register to see whether Parker had a special use permit, and that he knew “of [his] own personal knowledge” that neither Parker nor his company had a special use permit.

The foundation established by Roberson was extensive. Not only did he detail substantial knowledge of the permit system and his regular use of the system, he described how the register was maintained and how he undertook his search. Roberson’s testimony was properly admitted to prove that his “diligent search failed to disclose a public record” of the permit under Rule 803(10).

Parker, _ F.3d at _.

The Ninth Circuit contrasted the business record hearsay exception, under FRE 803(6)(D), which can use “the testimony of the custodian or another qualified witness” to admit the records, with FRE 803(10) which does not require a custodian witness. As the circuit noted on this point, “Rule 803(10) simply requires ‘testimony’ that a diligent search did not turn up a public record.” Parker, _ F.3d at _ (citing United States v. McDonald, 905 F.2d 871, 875 (5th Cir. 1990) (holding that “[t]he government need not have produced the custodian of the records” to establish the absence of a record under Rule 803(10)); see also United States v. Diaz-Lopez, 625 F.3d 1198, 1200 (9th Cir. 2010) (noting that an agent testified about his experience and personal use of the database and his knowledge of its maintenance; holding that “[f]or purposes of establishing foundation, it [i]s sufficient that the agent testified that he was familiar with both the process of searching the records and the government’s recordkeeping practices with regard to the database”)).


The Parker case provides a recent example of the application of FRE 803(10). The testimony of a public official can be used to the type of records regularly maintained by the agency, what search was conducted, and determination that the particular record was not found.

On December 1, 2013, an amendment was adopted for FRE 803(10). The amendment was drafted to conform with the “notice and demand” process approved by the Supreme Court in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 25441 (2009) (noting that “notice and demand” statutes may satisfy Confrontation Clause concerns). For more on the amendment, see FRE 803(10) Legislative History Page.


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