708.8Absence of Records [Rule 803(7)]
- If a business record that qualifies under Rule 803(6) does not include a matter, and that matter is of a type that the record would regularly include, the absence can be used to prove that the matter did not occur.
The Basic Rule
Rule 803(7) – Absence of Entry in Records Kept in Accordance with the Provisions of [Rule 803(6)]
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.
Admissibility and Scope
The preceding entry discussed Rule 803(6), which creates a hearsay exception for records of the regularly conducted activities of an organization (i.e., “business records”) upon laying a proper foundation to show that the records were made and kept in the regular course of business, by a person with knowledge of the matter, at or near the time of the occurrence. See G.S. 8C-803(6).
Rule 803(7) states that when records have been introduced in accordance with Rule 803(6), the fact that a matter is not included in those records may be used “to prove the nonoccurrence or nonexistence of the matter,” as long as:
- The matter is of a type that the records would regularly include; and
- The source or circumstances of the records do not indicate a lack of trustworthiness.
G.S. 8C-803(7). In other words, the “failure of a record to mention a matter which would ordinarily be mentioned is satisfactory evidence of its nonexistence.” G.S. 8C-803(7), Official Commentary. See State v. Frierson, 153 N.C. App. 242 (2002) (in an embezzlement case where defendant was alleged to have stolen employer’s bank deposits and turned in forged deposit slips, court did not cite to Rule 803(7) but nevertheless held that the bank account statements were properly admitted as business records “for the purpose of showing the absence of some of the purported deposits, and to show the true status of the company's deposits”); see also In re McDonald, 72 N.C. App. 234 (1984) (not citing to Rule 803(7), but noting that “according to the business records exception to the hearsay rule […] when relevant, testimony as to what business records do not show is admissible.”).
Federal cases applying the substantially similar rule found in Federal Rule of Evidence 803(7) have likewise held that it can be used to establish, as substantive evidence, that if a matter is not documented in the records that would ordinarily reflect it, the absence of that record constitutes evidence that the matter did not occur. See, e.g., In re Apex Express Corp., 190 F.3d 624 (4th Cir. 1999) (holding that “the absence of business records can be used as evidence to prove the non-existence of such a record”); Colin v. Marconi Commerce Systems Employees’ Retirement Plan, 335 F.Supp.2d 590 (D. Md. 2004) (the fact that “Defendants cannot locate any such requests, despite their regular business practice of maintaining copies of participant and beneficiary correspondence, can be considered evidence that no such request was made”).
For more information about what qualifies as a type of record that the organization would regularly keep, or when the circumstances surrounding those records might indicate a lack of trustworthiness, see the previous discussion of these issues in the related Evidence entry on Business Records [Rule 803(6)].
When is this used?
Rule 803(7) can be useful for “proving the negative” in certain types of criminal trials. For example, the absence of a record could help prove that a shoplifiting suspect did not pay for the item found in his possession, an embezzler did not deposit his employer’s money at the bank, or a pawn shop owner did not verify the identity of a person selling stolen property. For further discussion, see Jonathan Holbrook, “Rule 803(7) and 803(10): Absence of Records,” N.C. Criminal Law Blog, May 14, 2019.