Rule 803(7). Absence of a Record of a Regularly Conducted Activity (Not Adopted).
(7) Absence of a Record of a Regularly Conducted Activity (Not Adopted)
Pennsylvania has not adopted F.R.E. 803(7) which provides:
Evidence that a matter is not included in a record described in [F.R.E. 803(6)] 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) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.
Principles of logic and internal consistency have led Pennsylvania to reject this rule. The absence of an entry in a record is not hearsay, as defined in Pa.R.E. 801(c). Hence, it appears irrational to except it to the hearsay rule.
On analysis, absence of an entry in a business record is circumstantial evidenceit tends to prove something by implication, not assertion. Its admissibility is governed by principles of relevance, not hearsay. See Pa.R.E. 401, et seq.
Pennsylvania law is in accord with the object of F.R.E. 803(7), i.e., to allow evidence of the absence of a record of an act, event, or condition to be introduced to prove the nonoccurrence or nonexistence thereof, if the matter was one which would ordinarily be recorded. See Klein v. F.W. Woolworth Co., 163 A. 532 (Pa. 1932) (absence of persons name in personnel records admissible to prove that he was not an employee). See also Stack v. Wapner, 368 A.2d 292 (Pa. Super. 1976).
The provisions of this Rule 803(7) adopted January 17, 2013, effective in sixty days, 43 Pa.B. 620; amended November 9, 2016, effective January 1, 2017, 46 Pa.B. 7436. Immediately preceding text appears at serial page (365906).
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