Rules 803(7) and 803(10): Absence of Records

Let's start with a brainteaser: If there are no North Carolina criminal appellate cases citing to Rules of Evidence 803(7) or 803(10), does that prove that the rules are never used? If you know your rules of evidence, then you get it. (You're probably not that amused... but you get it.) If you need a quick refresher on these two rules, or an explanation of why it would be surprising that there are virtually no criminal appellate cases mentioning either of them, read on. Summary of the Rules For a recap of Rules 803(6) ("business records") and 803(8) ("public records"), see Professor Smith's previous blog posts here and here. Rule 803(7) states that when records of a regularly conducted activity have been admitted under Rule 803(6), but the records contain no entries regarding a matter "of a kind" that one would expect to find in the records, that absence may be used "to prove the nonoccurence or nonexistence of the matter." G.S. 8C-1, Rule 803(7). For example, in a larceny by employee case, the absence of a sales receipt for an item of merchandise could be used to prove that the employee did not ring up the sale before taking the item out of the store. Rule 803(10) applies the same principle to public records admitted under Rule 803(8). See G.S. 8C-1, Rule 803(10), Official Commentary (“The principle of proving nonoccurrence of an event by evidence of the absence of a record which would regularly be made of its occurrence, developed [...]