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Instruction Concerning Character Of Evidence: “Negative” Testimony
In reaching your verdict, you may consider negative evidence. Negative evidence is testimony as to the nonoccurrence of an event, such as testimony that a fact did not exist, that a thing was not done or did not take place, or that one did not hear or observe. For negative testimony to contradict positive evidence, it should appear that the negative statements were made by persons whose attention was directed to the fact in issue and that they were looking, watching, and listening for the fact.
In other words, before negative testimony can contradict positive evidence, it is not enough that it shows there was opportunity to observe, but it must also show that attention was directed to the fact, and unless it is so shown, the positive evidence must prevail.
Points and Authorities
Adaption of Deerings EC 411, “Suggested Form”.