EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, March 9, 2011

Excused Absence: First Circuit Finds Lack Of Notes About Calls Inadmissible Under Rule 803(7)

Federal Rule of Evidence 803(7) provides an exception to the rule against hearsay for

Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

As the text of this Rule and the recent opinion of the First Circuit in McInnis v. Maine, 2011 WL 769075 (1st Cir. 2011), make clear, a party cannot merely point to the absence of an entry about some matter to establish admissibility under Rule 803(7). Instead, the party must point to the absence of an entry about a matter which was of a kind of which a record was regularly made and preserved.

In McInnis,

James McInnis was convicted of both federal and state offenses, and sentenced to a period of probation on the state charge, set to begin at the conclusion of the term of his state incarceration. On January 5, 2007, during what McInnis's probation officer believed to be the probation period, he authorized McInnis's warrantless arrest for violating probation and a warrantless search for drugs suspected to be in his possession. Actually, the probation period had expired before the search and arrest, apparently because the original sentence had been reduced unbeknownst to the state probation department.

McInnis (and other plaintiffs) thereafter brought actions under 42 U.S.C. § 1983 and state tort law against the State of Maine, York County and a series of state and county officers and their superiors, who made the warrantless search and arrest. The magistrate judge granted summary judgment to the defendants based upon

In 2006, after McInnis was released from his earlier custody on completion of his sentence, he spoke by phone with a state probation officer, Lew Randall, who told McInnis to report to him in accordance with the probation terms. McInnis responded (correctly as it turns out) that he was not on probation at that point and said that he would have his lawyer explain his status to Randall. This was not done, though for his part Randall took no immediate action against McInnis until he got a call from the defendant Kenneth Hatch, a Lincoln County deputy sheriff, who is McInnis's half-brother (and is said to have been the victim of McInnis's state criminal offense).

Hatch said that he had spoken with an informant who had previously given information that had never been subject to question and who was known to be acquainted with McInnis. According to the informant, McInnis and his son had “ripped off” someone of twenty-five pounds of marijuana, which was then in McInnis's possession at the dwelling of the plaintiff Dee McInnis. Randall confirmed (as he believed) that McInnis was on probation. Hatch had his supervisor's approval to pass the information along to other law enforcement officials as was customary, Randall being the first he called. Hatch also called defendant William Deetjen, an officer of the Maine Drug Enforcement Administration. Deetjen contacted Randall, who gave him authority both to arrest McInnis for violating probation and to search for the drugs, in each instance without a warrant, which the standard probation conditions made unnecessary. Deetjen himself knew that a federal judge had recently revoked an order authorizing McInnis's supervised release because he had lied to a federal probation officer, failed to report to him, and possessed marijuana.

When Deetjen and several other defendant state officers went to the McInnis house, McInnis claimed that he was not on probation. Deetjen called Randall, who repeated that he was. The officers then arrested him for violating probation and searched the premises for the stolen marijuana, though finding only some marijuana seeds and drug paraphernalia drug paraphernalia.

McInnis thereafter appealed, claiming, inter alia, that he contested Deetjen's claim that he conversed with Randall twice, noting that Randall made notes of his telephone conversations but had no such notes concerning his alleged conversations with Deetjen. As the First Circuit noted, however, "[t]he magistrate held these responses insufficient to raise a fact dispute because McInnis failed to support the claimed qualification with a citation to the record, as required by the District of Maine's Local Rule 56(c)."  The First Circuit also noted, however, that "McInnis now suggests that the citation requirement is inapt by force of Federal Rule of Evidence 803(7), which he treats as entitling him to rely on the very absence of a record as a basis for disputing a fact claim."

The First Circuit found that McInnis waived this issue by not raising it before but went on to find that "even on its own terms it goes nowhere, since McInnis provides no grounds for applying the Rule even if he were offering the phone notes in evidence. Rule 803(7) conditions admissibility on a foundational showing that records were kept in such a way that the occurrence claimed 'was of a kind of which a...record...was regularly made and preserved.' McInnis attempts no such showing."



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