Using "Negative Evidence" as a "Positive" Approach
We will soon come to a close of the sixth year of a new millennium…something new – something old! We look to the future hoping that what we have learned in the past will help us make the right decisions. We see changes in the law. We see changes in advocacy techniques. We see changes in our profession and the very way in which lawyers are practicing and will practice law. Yet we must often look perhaps to events that did not occur or things that did not happen in order to figure out where we are and where we are going. These “non-events” often provide us with the key to the truth!
Often, counsel must prove that a given event did not occur or that a particular sound was not made or heard. Where the attending circumstances show that it has probative force that it is relevant and material evidence proving that an event did not occur is admissible and may often have a devastating effect on the case. This is “negative evidence.”
Negative evidence is evidence that a fact did not exist or that a thing was not done, did not take place, or that a witness did not hear, see, feel, touch, taste, or smell. Many courts consider that negative evidence lacks the force of positive evidence, since the memory of a witness is considered more reliable when he testifies to something that occurred as opposed to something that did not. If this is true, it should go to the weight of the evidence and not to its admissibility.
Of course, negative evidence must be relevant that is, it must logically tend to prove or disprove a material fact. Where the evidence is logically probative, it is relevant and will be admissible unless there is a reason for not allowing the jury to consider it. In determining whether a fact has probative value, the fact for which the evidence is offered to prove or disprove must be identified. The same evidence can be relevant to one purpose and irrelevant or immaterial for another. If evidence is offered to prove or disprove a fact or circumstance which is not a matter in issue, it is said to be immaterial.
Analyzing Negative Evidence
During discovery and trial preparation, the advocate must be looking for negative evidence that supports your theory of the case. This can often be accomplished in the following step by step process:
(1) Search for people who were not “witnesses” that are the types of individuals who, in the course of their normal tasks, could be expected to know something about the facts.
(2) Look for investigative reports, accident reports, and incident reports that were not complete or never prepared.
(3) Note the absence of “real evidence” and analyze why it is missing or not present (i.e., no debris at automobile collision site; no evidence of violence at murder scene; lack of pediatrician's availability or presence in operating room at time of cesarean section delivery; no fingerprints when it would be expected that they be present; no reported odor of alcohol in DWI case).
In any litigation, it is absolutely essential that counsel consider the negative evidence. Often, proof through negative evidence is what makes or breaks your case, whether it be in the criminal courtroom or before a civil jury or an administrative board.
Negative evidence provides the advocate with a way of proving certain facts through the nonexistence of other facts or happenings. Think about potential negative evidence in every case. If there is less than should meet the eye, you may make an important discovery.
Checklist: Negative Evidence
To elicit persuasive negative evidence from a witness, consider the following:
- The witness must demonstrate having had a reasonable opportunity to observe or hear the thing or event.
- The attention of the witness must be shown to have been directed toward the thing or event or happening.
- Consideration must be given to whether the fact or happening was common or unusual.
- The witness must demonstrate adequate powers of sight, smell, hearing, and the like.
- Determine whether the witness was indifferent to relevant details.
- Consideration must be given to whether the witness was specifically looking for or was listening for the thing or event.
Illustrative Testimony: Negative Evidence
Example 1
The witness is an elderly man residing in a mobile home located on the corner lot of an intersection where a young girl was killed by a citrus truck that ran her over while she was waiting for the school bus. The vehicle “hit and ran.” There are no eyewitnesses to the incident. Plaintiff can place the defendant’s vehicle near the scene within one minute of the tragedy and is trying to prove that no other similar trucks were on this stretch of county highway near the time in question. Plaintiff calls several witnesses to provide negative evidence.
Q. Mr. Jenkins, once you heard the sound of a semi go by, tell the court and jury exactly what you did, step by step.
A. Well, sir, as soon as I heard all the chickens hoot’n and holler’n, I knew something got them stirred up. So I got up from the kitchen table and went to the front door.
Q. What time was it?
A. I’d say about 7:15.
Q. a.m. or p.m.?
A. a.m.
Q. How do you know what time it was?
A. Well, I was watching Good morning America on TV. It comes on at seven. It had been on a little bit. It was about 7:10…7:15.
COMMENT: It is imperative that counsel elicit information affirmatively establishing the various ways and means through which a witness became “aware” of what was going on around him in terms of his perceptions and senses.
Q. What did you do when you got to your door?
A. I looked out and could see some kids near the bus stop where kids wait. They were on the other side of the hedge. But I couldn’t see what they were doing. So I walked out the door and went across the yard and then I saw little Patty down near the mailboxes.
Q. Was she moving?
A. Nothing.
Q. Does that mean she was not moving?
A. Right.
Q. What did you do next?
A. Well, I like jumped through the hedge and could see something wasn’t right. She wasn’t moving. She looked dead. All the kids were crying.
[Skipping to the negative evidence]
Q. How long did you actually stay out in the area where Patty was lying?
COMMENT: Here, the strength in your circumstantial evidence case lies in being able to show that the witness’ opportunity to perceive and become aware of what was going on was for a lengthy period of time. In this instance, the longer he was able to perceive and see and hear, the stronger his testimony becomes and thus the stronger the links in the chain of circumstantial evidence.
A. You mean even after the ambulance came?
Q. Yes.
A. I left and went back in the trailer at 8:00.
Q. Are you sure of that?
A. Well, not positive. But I’m sure I was out there about forty five minutes or an hour. See, my grandson was watching Captain Kangaroo. And that don’t come on till 8:00. So it was at least forty five minutes or so.
Q. Did you see the semi that went by?
DEFENSE: Objection, Your Honor! There has been no proof so far that any semi even went by.
PLAINTIFF: Your Honor, if I may be allowed to proceed, I'll lay a better foundation.
JUDGE: Go ahead. More foundation.
Q. Mr. Jenkins, how long have you been living at that same location?
A. Nine years.
Q. Are there any types of vehicles that travel on that stretch of highway more than others?
DEFENSE: Objection. Vague. Ambiguous. And it’s a leading question, Judge.
JUDGE: Overruled.
A. Yes. The grove trucks.
Q. What do you mean?
A. Well, there are several citrus groves down the road and those big citrus rigs the semis are all over.
Q. Are you familiar with the sounds of those rigs?
A. You would be, too. I mean, yes.
Q. As to the sound you heard just before the chickens got all riled up, had you heard that sound before?
A. Yes.
Q. What did it sound like?
A. It sounded like one of them citrus rigs.
Q. Now, Mr. Jenkins, I’d like to go back to when you were out at the scene during that forty five minutes or so. What were you doing?
A. I was helping the officer direct traffic and I was kind of watching out for the kids.
Q. Were you sick at all that morning?
A. Just over Patty.
Q. Besides feeling bad for young Patty, were you okay?
A. Oh, yes.
Q. Did you have any hearing problems?
A. No.
Q. Any vision problems?
A. Not really. Had my glasses on.
Q. During the entire period of time you were out there at the scene, that forty five minutes or so, did you see any citrus trucks and big rigs like that go by in either direction on the highway?
A. None.
Q. Are you sure?
A. Yes, sir.
Q. Did you hear anything else that sounded like one of those rigs?
COMMENT: Note how the examination covers all aspects regarding the witness’ sensory perceptions, such as hearing and seeing. The circumstantial evidence case, when dealing with negative evidence, is built on perceptions of the senses.
A. None, no.
Q. How would you characterize the volume or amount of traffic that morning out there?
A. Really light. Almost nothing.
Q. During that forty five minute period, did you leave the immediate area at all for any reason?
A. No.
Q. While you were out there, were you looking for anything in particular?
A. Not really. I was watching the traffic because of all the kids.
COMMENT: Obviously, a further and more adequate foundation can be laid by counsel. In this case, the “impact” was actually at 7:25 a.m. The defendant driver denied any wrongdoing, but records showed he would have been on “the” stretch of highway between 7:10 a.m. and 7:30 a.m. He also admitted this, but said that the road was heavy in truck traffic. Plaintiff called a total of six “negative evidence” witnesses who saw no citrus trucks/semis in a certain area between 7:10 a.m. and 8:00 a.m. Plaintiff successfully proved by the “greater weight of the evidence” that the defendant’s vehicle was in fact the vehicle that “hit and ran.”
Example 2
The witness here testifies that it was not raining when her answer should have been “I really don’t remember if it was raining or not.” Her “rain” testimony has little probative force because counsel shows she remembered nothing except that one fact.
Q. Mrs. Jones, was it raining at the time of the collision?
A. No. I don’t believe so.
Q. Was it windy out?
A. Gee. I really don’t know.
Q. You were a passenger in the right rear seat at the time, weren’t you?
A. That’s right.
Q. And you had been reading a magazine, right?
A. Yes.
Q. You don’t know what the weather was like before impact because you weren’t even paying attention to it, were you?
A. I guess so. Right.
Q. What lane were you in before impact?
A. I don’t know.
Q. And you don’t know whether there was a vehicle in front of you or in back of you, do you?
A. No.
Q. You don’t know whether the wipers were on or off do you?
A. No.
Q. And you really don’t know if it was raining or not do you?
A. Right.
Conclusion
Always search for the truth by conducting a complete and in-depth investigation as to what did not happen as well as what did occur. These “non-events” or “non-happenings” will often provide you with the insight leading directly to victory in the courtroom!
