Wednesday, August 6, 2014
When a party seeks to introduce a private business record (e.g., a memorandum from XYZ Corp.) under Federal Rule of Evidence 803(6), that party must establish foundational facts through, inter alia, the testimony of the custodian or another qualified witness. When a party seeks to prove the absence of a public record (e.g., the absence of an alleged HUD report) under Federal Rule of Evidence 803(10), that party must establish "that a diligent search failed to disclose a public record or statement...." The Rule, however, is silent as to who must conduct that search. So, who must conduct such a search? Let's take a look at the recent opinion of the Ninth Circuit in United States v. Parker, 2014 WL 3747132 (9th Cir. 2014).
In Parker, Shawn Parker, a commercial snowmobile operator, was convicted on two counts of conducting a "work activity or service" on United States Forest Service land without a special use authorization and one count of interfering with a Forest Service officer engaged in the performance of his official duties. At trial, Forest Service Officer Steve 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.
After he was convicted, Parker appealed, claiming, inter alia, that the State failed to lay a proper foundation under Federal Rule of Evidence 803(10) for admission of Roberson's testimony. Rule 803(10) provides an exception to the rule against hearsay for
Testimony — or a certification under Rule 902 — that a diligent search failed to disclose a public record or statement if:
(A) the testimony or certification is admitted to prove that
(i) the record or statement does not exist; or
(ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and
(B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice — unless the court sets a different time for the notice or the objection.
As you can see from the text of Rule 803(10), there is no indication of who must conduct the "diligent search." That said, the Ninth Circuit noted that We have held 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." Applying this standard, the court concluded that
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).