EvidenceProf Blog

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

Thursday, October 3, 2013

Absence of Malice?: Federal Circuit Finds Lack of Records of Military Rapes Inadmissible to Prove Their Nonoccurrence

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

Evidence that a matter is not included in a record described in paragraph (6) [the business records exception] if:

(A) the evidence is admitted to prove that the matter did not occur or exist;

(B) a record was regularly kept for a matter of that kind; and

(C) neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.

So, would this rule allow for the admission of evidence that there were no service records of two veterans being sexually assaulted? That was the question addressed by the Court of Appeals for the Federal Circuit in its recent opinion in AZ v. Shinskei, 2013 WL 5420978 (Fed. Cir. 2013).

In Shinskei

Veterans AZ and AY filed claims with the Department of Veterans Affairs (“VA”) seeking disability compensation for post-traumatic stress disorder (“PTSD”) alleged to have resulted from sexual assaults that occurred during service. The veterans' service records d[id] not reflect any reports of the alleged sexual assaults. The VA Regional Office (“RO”), Board of Veterans' Claims (“Board”), and the Court of Appeals for Veterans Claims (“Veterans Court”) rejected the claims in part on the ground that the veterans' service records did not include reports of the alleged assaults, and because the veterans stated that the assaults were never reported to military authorities.

The veterans thereafter appealed, claiming, inter alia, "that the Board and Veterans Court erred by treating the absence of reports of the alleged sexual assaults as pertinent evidence that the assaults did not occur." 

In response, the Federal Circuit found that "courts have refused to admit evidence of the absence of a record to show that an event did not occur, where it was not reasonable to expect the event to have been recorded." Applying this principle, the court concluded that

the absence of a report of an unreported sexual assault is too ambiguous to have probative value. Because the alleged assaults were not reported to military authorities, no reasonable person could expect records documenting the assaults to exist, or infer that the absence of such records tends to prove the assaults did not occur. Thus, the absence of records “provides neither positive nor negative support for service connection,”...and is “not pertinent evidence, one way or the other,” to that determination, see id.
In sum, basic evidentiary principles preclude treating the absence of a record of an unreported sexual assault as evidence of the nonoccurrence of the assault. Therefore, we agree with the appellants that where an alleged sexual assault, like most in-service sexual assaults, is not reported, the absence of service records documenting the alleged assault is not pertinent evidence that the assault did not occur.



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I must admit that I've never understood the purpose of FRE 803(7) (absence of business record) and FRE 803(10) (absence of public record). Why do we need hearsay exceptions for this kind of evidence? Recall that hearsay is an out-of-court statement that "a party offers in evidence to prove the truth of the matter asserted in the statement."

Imagine that I claim to have deposited money at my bank on Date X, and the bank offers its deposit register from that date, which lacks any record of a deposit by me. What hearsay objection can I make? What is the out-of-court "statement" at issue? What has been "asserted" that the bank claims is true? Surely the teller didn't intend to communicate "no deposit by Ben today" by failing to record a deposit.

Similarly, if the police blotter doesn't mention a bank robbery on Date Y, we might assume that no robbery occurred, or at least that no one called the cops, or perhaps that the cops forgot to write it down. I doubt we'd conclude that an officer "asserted" something like "no robbery today" by omitting the report. The same logic applies to a lack of records of reported rapes.

I think "absence of records" evidence is better examined under Rules 401, 402, and 403 than under Rules 801 and 803.

Posted by: Ben Trachtenberg | Oct 7, 2013 8:44:58 AM

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