Case with NFA list implications

Sounds like a good reference for Akins, maker of the Akins accelerator.

Absence of NFA registration, like evidence of lack of other types of governmental records, is generally admitted under Fed. R. Evid. 803(7) and/or (10) (absence of entry in business records/public records), using the self-authenticating certification procedures of Fed. R. Evid. 902. However, the Confrontation Clause trumps the Federal Rules of Evidence, so there's at least a semi-non-frivolous argument that the person performing the records search must be available for cross-examination.

But in the end, I think the better argument is that the Confrontation Clause hurdle for proving simple lack of a business record is very different than that for proving a complex chemical drug test was carried out correctly. And even if my hunch is wrong, the problem is fairly easy to fix by having the testifying BATFE firearms examiner or agent also run the NFA records check himself and include that in his direct testimony. Doing so would require some changes to internal BAFTE procedures, but it's not going to be a major impediment to NFA (or any other registration-based) criminal enforcement in the long run.

Relying on a quick read of a case syllabus is probably per se legal malpractice, so now that I've actually waded through Justice Scalia's opinion, let me confess error and partially retract my comment above.

The specific issue of certifying lack of a public record is addressed in the opinion at §III.D, when Justice Scalia rebuts the dissent argument that's roughly along the lines of what I posited above. BATFE - like the SEC, FDA, and a host of other Federal and state alphabet-soup agencies that maintain registration databases relevant to criminal prosecutions - may well need to revise their procedures to be able to routinely provide live testimony about the absence of an official record. Scalia writes:

-----
"The dissent identifies a single class of evidence which, though prepared for use at trial, was traditionally admissible: a clerk’s certificate authenticating an official record—or a copy thereof—for use as evidence. . . . A clerk could by affidavit authenticate or provide a copy of an otherwise admissible record, but could not do what the analysts did here: create a record for the sole purpose of providing evidence against a defendant."

" Far more probative here are those cases in which the prosecution sought to admit into evidence a clerk’s certificate attesting to the fact that the clerk had searched for a particular relevant record and failed to find it. Like the testimony of the analysts in this case, the clerk’s statement would serve as substantive evidence against the defendant whose guilt depended on the nonexistence of the record for which the clerk searched. Although the clerk’s certificate would qualify as an official record . . . the clerk was nonetheless subject to confrontation [at common law]. [citing only 2 state cases and Wigmore]. . . . Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial. Whether or not they qualify as business or official records, the analysts’ statements here—prepared specifically for use at petitioner’s trial—were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment."
-----

Having said that, a couple of points:

1. It's not going to matter in most cases. For completed trials now on appeal, the defense must have perfected and preserved its objection to the certification in order to be able to raise this issue, and in many instances that won't have happened before this opinion was issued. And for cases not yet tried, any AUSAs who aren't asleep at the switch can probably procure the necessary live testimony on pretty short notice, even before the record-keeping agency formally changes its registration search procedures. And even if a conviction is thrown out on appeal, there won't be a final judgment of acquittal entered, but rather a remand for a do-over to fix the problem.

2. On a semi-unrelated note, some pundits have been fretting about Justice Scalia's lack of fondness for the doctrine of selective incorporation if/when one or more of the state Second Amendment cases gets before SCOTUS. In this case (which came directly out of the Massachusetts state system), he didn't have any problem with the threshold proposition that the Sixth Amendment has been incorporated through the Fourteenth Amendment. A good omen for incorporation fans...

If the NFA registry is to be treated like biz records ... then when does it get audited?

I think this might be of larger significance when challenging the BATFE's (lack of) testing methodology. Right now, all that happens is a BATFE technician claims they were able to get the firearm to fire more than one shot per pull of the trigger, but they do NOT testify (to the best of my knowledge) as to what testing methodology they use, in fact, as far as I know, there IS no standardized inspection/testing regime (which goes against the basics of the scientific method, so I don't understand how courts can admit it as scientific evidence).

James, which is exactly why Akins will find this case useful.

Kristopher,

re: auditing the NFRTR:

It's being modernized right now. Despite the fact I disagree with the lists existence, and the licensing regime that makes it possible, actually going through it and making sure everything labeled properly will probably keep people out of jail instead of put them there.

I's and E'd getting mixed around are common (just recently NPR did a piece on how the English are dropping the old 'I before E except after C' rule because of words like Foreign and Sovereign and such).

And of course we all know fired agents altered or removed records.

Now everything is in a Database.