Understanding Negative Evidence versus Positive Evidence
BY: Dr. Peter A. Barone, Esq.
Relevant evidence encompasses evidence tending to establish negative facts as well as positive ones. Negative testimony is admissible, if the attending circumstances indicate that it has some probative force, such as concerning what the witness did not see or did not hear, but a witness may not testify to the nonexistence of a fact where the fact might have existed without the person being aware of it. Basically Negative Evidence is known as testimony that an alleged fact did not exist. Negative evidence is admissible when a qualified person, who has examined certain records or documents, testifies that he or she did not find any reference to or entry of a particular item or transaction.
To better understand the concept of positive versus negative evidence an explanation of what positive evidence is can assist with this explanation. Evidence is considered to be Positive Evidence when a witness is testifying and during the testimony they are able to state that a certain thing or event either did or did not occur or exist, and evidence is considered to be negative energy when the witness states that he or she did not see of know of the existence of a certain circumstance of fact (Klotter, 2012).
This does not mean, however, that relevant evidence should always presented in an affirmative form. Negative testimony is admissible if the attendant circumstances show that it has some probative force, and the competency of the witness, and his or her knowledge of the matter of which he or she speaks are established.
There are several cases which have provided examples regarding of negative evidence.
1978 Norfolk & W. Ry. v. Greenfield, 219 Va.
122, 244 S.E.2d 781 (1978).
Positive testimony of single witness, whose
credibility is unimpeached, that he saw or heard particular thing at particular
time or place ordinarily outweighs as matter of law testimony of any number of
credible witnesses who, with same opportunity, say that they did not see or
hear it. If there is evidence that one who denies fact had good opportunity to
see or hear, and evidence demonstrates that he probably would have seen or
heard event if it had occurred, then such evidence produces conflict in
evidence to be decided by trier of fact.
1976 Bunn v. Norfolk, F. & D. Ry., 217 Va. 45,
225 S.E.2d 375 (1976).
Positive testimony outweighs negative equally credible
testimony. Opportunity of witness to hear railroad signals was limited.1973 Mitchell v. Lee, 213 Va. 629, 194 S.E.2d 737 (1973).
Plaintiff’s testimony that she did not see sign is merely negative testimony and is indicative of fact that she was not keeping proper lookout.
1968 National Union Fire Ins. v. Bruce, 208 Va. 595, 159 S.E.2d 815 (1968).
Positive testimony of credible witness ordinarily outweighs negative evidence of number of witnesses. But this rule does not always apply where one witness says he did not see that which another says did occur. If there is evidence that witness had good opportunity to see and that he probably would have seen it if it had occurred or that his attention was drawn to situation, then his testimony is positive and not negative.
1965 Skinner v. Norfolk & W. Ry., 206 Va. 649, 145 S.E.2d 170 (1965).
Railroad crossing accident. Witnesses testified they did not hear train signals. This negative evidence must be evaluated in light of fact that their opportunity to hear was limited and their attention was diverted by other matters.
1959 Norfolk & W. Ry. v. Sykes, 200 Va. 541, 106 S.E.2d 734 (1959).
Positive testimony ordinarily outweighs that of number of other witnesses, equally credible, who with same opportunities testify merely that they did not see or hear thing in question.
1958 Railway Co. v. Barden, 200 Va. 98, 104 S.E.2d 13 (1958).
Positive testimony of credible witness who testifies, that he saw or heard particular thing at particular time, ordinarily outweighs that of number of other witnesses equally credible who with same opportunity testify merely that they did not see or hear it.
1955 Chesapeake & O. Ry. v. Hanes, 196 Va. 806, 86 S.E.2d 122 (1955).
Where witness testifies that he did not hear train signals, this may not be disregarded as purely negative in character and devoid of probative value where conditions are such that he probably would have heard them.
1953 Bangley v. Virginian Ry., 195 Va. 340, 78 S.E.2d 696 (1953).
Jury properly instructed that “the testimony of a witness that he did not hear a whistle blow or a bell ring is not entitled to the same weight” as positive testimony of one who says that whistle and bell were sounded, unless it appears that former had as good opportunity to hear whistle and bell, and that it is probable that he would have heard them.
Although a foundation must be laid before negative testimony is relevant and competent, testimony as to the nonexistence of a fact or as to the witness’ lack of knowledge of its existence is admissible where the situation of the witness was such that if the fact had existed, he or she probably would have known it. Some of the legal scholars and judges regard negative evidence as having less weight than positive evidence and while it is considered to be valuable and admissible when proper foundation has been laid, provided that the competency of the witness and his or her knowledge of the matter are established (Klotter, 2000).
Reference
Klotter, J. C. (2012). Criminal Evidence 11th ed. Boca Raton, FL: Taylor and Francis Publishing.
Chesapeake & O. Ry. v. Hanes, 196 Va. 806, 86 S.E.2d 122 (1955).
Bunn v. Norfolk, F. & D. Ry., 217 Va. 45, 225 S.E.2d 375 (1976).
Chesapeake & O. Ry. v. Hanes, 196 Va. 806, 86 S.E.2d 122 (1955).
Mitchell v. Lee, 213 Va. 629, 194 S.E.2d 737 (1973).
National Union Fire Ins. v. Bruce, 208 Va. 595, 159 S.E.2d 815 (1968).
Norfolk & W. Ry. v. Greenfield, 219 Va. 122, 244 S.E.2d 781 (1978).
Norfolk & W. Ry. v. Sykes, 200 Va. 541, 106 S.E.2d 734 (1959).
Railway Co. v. Barden, 200 Va. 98, 104 S.E.2d 13 (1958).
Skinner v. Norfolk & W. Ry., 206 Va. 649, 145 S.E.2d 170 (1965).
