MBE Rules · Evidence
Absence of Records
FRE 803(7), (10)
The rule
Evidence that a matter is absent from business records or public records is admissible to prove the matter's nonoccurrence if such records were regularly kept.
In plain English
If a business or public record is usually maintained and a specific matter is missing from those records, that absence can be used as evidence to show that the matter did not happen. This rule relies on the reliability of regularly kept records to infer nonoccurrence.
Worked example
A company regularly keeps detailed records of all employee terminations. During a lawsuit, the plaintiff claims they were terminated, but there is no record of their termination in the company's files. The absence of the termination record is admissible evidence to support the claim that the plaintiff was not terminated.
Memory hook
No record, no occurrence!
The trap
Exams may present scenarios where students overlook the requirement that records must be regularly kept, leading to confusion about the admissibility of absence evidence. Students might also misinterpret the significance of the absence without considering the context of record-keeping.
How examiners test it
Questions often involve a fact pattern where the absence of a record is pivotal to proving or disproving an event, requiring candidates to analyze the reliability and regularity of the records in question.
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