225 Pa. Code Rule 803(10). Non-Existence of a Public Record.

Rule 803(10). Non-Existence of a Public Record.

   (10)  Non-Existence of a Public Record. Testimony—or a certification—that a diligent search failed to disclose a public record if:
     (A)   the testimony or certification is admitted to prove that
       (i)   the record does not exist; or
       (ii)   a matter did not occur or exist, if a public office regularly kept a record for a matter of that kind.
     (B)   in a criminal case:
       (i)   the attorney for the Commonwealth who intends to offer a certification files and serves written notice of that intent upon the defendant’s attorney or, if unrepresented, the defendant, at least 20 days before trial; and
       (ii)   defendant’s attorney or, if unrepresented, the defendant, does not file and serve a written demand for testimony in lieu of the certification within 10 days of service of the notice.

Comment

   Pa.R.E. 803(10)(A) differs from F.R.E. 803(10)(A) insofar as it does not include ‘‘statements.’’ This rule is consistent with Pennsylvania law. See 42 Pa.C.S. § §  5328(d) and 6103(b). See also Pa.R.E. 902(13) (authentication of certificate).
   Pa.R.E. 803(10)(B) differs from F.R.E. 803(10)(B) insofar as it is made consistent with aspects of Pa.R.Crim.P. 574. Like the federal rule, this rule is intended to provide a mechanism for a defendant to exercise the constitutional right to confront the witnesses against him or her. See Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). Nothing in this evidentiary rule is intended to supersede procedural requirements within the Pennsylvania Rules of Criminal Procedure, see, e.g., Pa.R.Crim.P. 576 (Filing and Service by Parties), or limit the ability of the court to extend the time periods contained herein.

Source

   The provisions of this Rule 803(10) 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 pages (365907) to (365908).

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