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35. The testimony of the witness is
In an arson prosecution the government seeks to rebut the defendant's alibi that he was in a jail in another state at the time of the fire. The government calls a witness to testify that he diligently searched through all the records of the jail and found no record of the defendant having been incarcerated there during the time the defendant specified.
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A is correct. The witness's statement that he diligently searched all the records of the jail and found no record of the defendant is admissible under the absence of an entry from a public record exception to the hearsay rule. To prove the non-occurrence or non-existence of a matter of which a record was regularly made and preserved by a public office or agency, evidence in the form of testimony that a diligent search failed to disclose the record is admissible. Jail records are records regularly made and preserved by a public office or agency, and the witness's testimony about his diligent search of those records is admissible to prove the defendant was not in the jail when he claimed to be.
B is incorrect. This answer reaches the correct answer with the wrong reasoning. Although the testimony is admissible, it is not under the summary of the voluminous documents rule. A summary of voluminous documents allows for the admission of charts and summaries of large amounts of documents. Although the witness's testimony here is an account of a search of voluminous documents, the testimony is admissible under the absence of public records exception to the hearsay rule, not because it is a summary.
C is incorrect. On the contrary, the witness's testimony regarding the absence of a jail record satisfies the hearsay exception for the absence of a public record and is therefore admissible.
D is incorrect. This is an incorrect statement of the law. To be admissible under the exception of the absence of a public record, the document (s) need not be produced in order for the testimony to be admissible.