Does lack of evidence constitute evidence? This question is about the debate in the comments to this question. Question Does lack of evidence constitute evidence? Transcript of Comments ...I am curious how a prosecutor would prove that a testimonial was falsified. Especially if the purported person making the purported testimonial was also falsified. Unless there was a conspiracy to do so and a paper trail. Otherwise, if it's just a single person producing the testimonial, how could the prosecution ever prove it was never made? Since there would be no evidence, presumably, to rebut it. Any thoughts or insights? – Mowzer 14 hours ago @Mowzer: Surely a prosecutor or plaintiff could produce evidence that no company called Newco exists (no record of it in business registrations, Internet searches, etc), and likewise that there is no such person as Jane Doe. – Nate Eldredge 33 mins ago @NateEldredge: Sir, I ask you to think critically in this situation. How could one conceivably prove there is no person with a particular name? Is there a list or a database somewhere that lists every person in the world and every name they might use including nicknames and aliases? is there similarly a single list or list of lists or list of lists of lists that contains every business name? Please keep in mind, every business does not need to be registered or recorded with a state authority. Then there is the issue of companies outside the jurisdiction of enforcement. Foreign companies, etc. – Mowzer 10 mins ago @NateEldredge: Think of it this way. If I search my whole house for a set of, let's say, keys you claim you left there. And I don't find them. And, similarly, I question everyone who was ever in my house if they found your keys. And your keys don't turn up and no one claims to have found your keys. Does that prove your keys are not in my house? Of course not. It just means no one has found them yet. But it does not remove all reasonable doubt that the keys are there if you say you left them there and I have no evidence or reason to believe you are lying. Correct? – Mowzer 4 mins ago @Mowzer: It wouldn't be proof that no such person exists - it would be evidence that no such person exists. Civil court cases (in the US) are not decided based on absolute proof, but on the preponderance of the evidence. I believe something like a negative records search would constitute evidence that the person doesn't exist. The defense could then rebut this, if possible, by producing evidence that the person does exist; but if they don't, the court could plausibly use this to rule that the testimonial is false. @NateEldredge: What you describe is not evidence. It is lack of evidence. I guess we disagree. Simply put, my position is... Lack of evidence does not constitute evidence. Apparently, you hold a different point-of-view. @NateEldredge: Also, regarding your hypothetical... A sufficient rebuttal of the negative records search does not need to include producing evidence the mystery person exists. It would be sufficient to simply produce expert testimony of the many possible ways the negative records search could miss such a person assuming s/he does exist.
Focusing on evidence is putting the cart before the horse; what is relevant is proof. In the case overall and on any point in particular one party has the burden of proof to the requisite standard; balance of probabilities for a civil case, beyond reasonable doubt for a criminal case. The burden of proof is often associated with the Latin maxim semper necessitas probandi incumbit ei qui agit, the best translation of which in this context is: "the necessity of proof always lies with the person who lays charges." So, if I make an assertion that is disputed then I have to prove my assertion; if I cannot then my assertion is not proven. In practice this can get a little mucky and the burden of proof can switch from side to side like a tennis match as evidence is presented and rebutted but it is important to remember who has the burden at any given time. It is also worth noting that absence of evidence can also be evidence; especially when such evidence should be readily available. For the testimonial example: A business Bragco presented a glowing testimonial from Newco in its advertising material. The regulator (ACCC) has made the allegation that the testimonial is false; they bear the burden of proof. As evidence, they list the databases they have searched that indicate that Newco is not a company, business or person and that therefore the testimonial is false. Bragco has 2 choices: they can rebut the ACCC's evidence or they can deny it but present no evidence. They do actually have a 3rd choice; they can agree with the ACCC in which case they would probably have cut a deal before the case got to court. Rebuttal is easy (if the testimonial is genuine): they can produce Newco who will testify that yes, they exist and yes, they gave the testimonial. On the balance of probabilities, the ACCC has not met their burden; case dismissed. However, if they remain silent then the court will consider the evidence before it, in summary 1) no evidence of Newco can be found 2) Bragco who has a relationship with Newco chose not to provide evidence of the latter's existence. On the balance of probabilities, the ACCC has met the burden; proceed to judgement. Note: if they were seeking a criminal conviction then they may not have met the burden. @Mowzer has asked me to address the following: Bragco produces an expert witness who testifies the search of databases was not exhaustive and could have missed the target person because the databases do not contain an exhaustive list of people. Also, the target person could have used an alias. Similarly, no exhaustive list of businesses exist. Nor does every business need to be registered in a searchable list anyway. Furthermore, it's not the obligation of the company to keep records on everyone who writes a testimonial and be able to track them down. That's not their job. This testimony would be unsuccessful for a very simple reason: the judge is not an idiot. Balance of probabilities is a simple standard of proof: given the arguments and the evidence put forward; which do you think is the most likely version of events. Accepting all the evidence, what we have is 1) there was a negative search 2) that search was not exhaustive 3) Bragco could have produced some evidence that Newco existed (an email, a last known address, the name of a director) 4) it actually is an obligation on a company to keep such records since it was their choice to use the testimonial: having it challenged is reasonably foreseeable. You be the judge; how do you decide? Absence of evidence is not evidence of absence, however, in Australia at least a business must be conducted in the name of a natural person(s) or through a registered business name or a registered company. If the business name or company cannot be found on the register then, legally, it does not exist QED. If the business is being conducted by a natural person then surely there must be some evidence of that person's existence that the defendant could present? These cases do happen, see ACCC v P&amp;N Pty Ltd, however, in that case the facts were not disputed i.e. the defendant agreed that it had been a very naughty boy so the question of evidence had not come up. As for keeping records. There are obligations imposed by statute and there are obligations imposed by reasonable business practice. For example, financial records of companies in Australia are required to be kept for 7 years. If you sell a product for which an Australian Consumer Law claim could be made 10 or 20 years after the sale (whitegoods for example) and you did not keep a record of sales; you would be exposed to anyone who claimed they bought the product from you if you only kept records for the statutory period. This has already been borne out in asbestosis claims: if a person claims they worked for you 30+ years ago and you have no records then the court will accept that they did work for you - after all, they were there, right?
Can a Lease with Missing Pages be used as Evidence in Court? Yes. Being relevant to the claim(s) and signed by the parties gives the filed pages evidentiary weight. If the filed evidence is disputed, its filing shifts to the adversary the burden of proving that the missing portions of the contract outweigh the materiality of that evidence or that the filed pages are unreliable (i.e., fake). Likewise, during discovery, the party who only preserved some of the pages could (1) request the adversary to provide a copy of the signed contract, and/or (2) submit a request for admissions in which the adversary is asked to admit or disprove terms of the lease that are at issue.
The defense has an opportunity to question the witness the prosecution had called to provide foundation for the evidence, and in this case the defense's perspective is that the prosecution was trying to introduce evidence that they had improperly digitally manipulated. Part of their questioning was trying to figure out how the witness had manipulated the image prior to offering it as evidence. It's the prosecution's burden to prove that the evidence they are offering is accurate, the defense's purpose in asking the witness questions he could not answer is to try to prove to the judge that the prosecution has not laid proper foundation for the evidence because it has been manipulated from its original form in a way the prosecution cannot explain or justify as remaining fair and accurate to the events captured by the original footage. This case in particular had a lot of video evidence, and most of these issues were handled in motions in limine before the trial started. However, the drone evidence in question was dropped at the prosecutor's office after the trial started, so the prosecution did not really have time to hire and voir dire an expert witness on Amped 5 (keeping in mind that the defense similarly had little time to review and account for the new evidence in the middle of trial). Since the defense in this case were cross-examining the witness, they have some leeway to present an argument with their questioning like they chose to do with the red/blue pixel drawings. As I recall the judge allowed the evidence as-is, so it does not appear that the defense's arguments were persuasive to the judge.
Short Answer Chain of custody is a common challenge to the admissibility and weight of evidence. Qualification This sounds like a real case. Not a hypothetical. The outcome can go either way. It sounds like it's heading for litigation. The result will depend on the facts and legal arguments. If this is meant to be a hypothetical there are too few facts described to be able to analyze it. I suggest you hire an attorney and forget about getting the question answered here. Generally speaking, it's impossible to prove a negative. So on that basis, proving they did not tamper with the data will be a challenge at best. Lawyers can always challenge evidence. And chain of custody is a common challenge to the admissibility and weight of evidence.
As I understand it, legal procedure in Common Law jurisdictions (e.g. the UK) is primarily based on evidence given by a person. Paperwork exists to verify that someone has not misremembered something, but even when you have paperwork you need to have someone testify that this is the right paperwork and it hasn't been forged. A piece of paper on its own means nothing. In practice of course the two sides will agree to accept routine matters rather than dragging lots of third parties (e.g. the post office employees) into court to no point. In the case of a letter where you need to prove it was received, the sender will testify that they sent the letter and that the copy they have introduced into evidence is a true copy. The proof of delivery merely shows that the item wasn't lost in the post. If one party testifies that they sent a letter and the other testifies that they merely received an empty envelope then someone is lying, which is a crime meriting further investigation.
If you state, to a third person, that Joe has performed a criminal act then that is defamation and you can be sued. Unless it is true. However, if you are relying on the truth as a defence you will need to provide evidence that it is. At the moment you lack: a criminal conviction of Joe any physical evidence against Joe any personal knowledge that Joe has committed these acts. All you have, is second hand rumours that this has happened to 5 women, some of whom have reported it to you in person. This is called hearsay and it is not evidence. It may be true, it probably is true - you can't prove it's true and in court, that's all that matters. If you were sued your only possible defence is to call these women to give the evidence they are unwilling to give - are you willing to betray their confidence to that extent?
The short answer is that propensity evidence can only be circumstantial evidence and that it is generally inadmissible. But we should start by clarifying what &quot;circumstantial evidence&quot; means. It is not the opposite of legal evidence, but more like the opposite of direct evidence. Direct evidence is evidence that independently establishes a fact in question, while circumstantial evidence is evidence that gives rise to an inference that a fact in question is true. There is a misconception that circumstantial evidence is somehow inadmissible or inferior to direct evidence, but the truth is that the vast majority of evidence is circumstantial. So if you are on trial for murder, direct evidence would include your confession, an eyewitness account of the murder, and surveillance video of you killing the victim. Circumstantial evidence would include things like the victim's blood on your clothes, a taxi driver's testimony that he dropped you off at the victim's apartment just before the murder happened, or surveillance video of you exiting the cab and entering the apartment. Propensity evidence is evidence that a person is likely to have acted one way in this case because they have acted that same way in the past. It is therefore never going to be direct evidence and always going to be circumstantial evidence, because it never explicitly says &quot;the defendant did it,&quot; but rather says &quot;the defendant did it before, so maybe he did it again.&quot; The general rule is that propensity evidence is inadmissible. Fed.R.Evid. 404(b). It sometimes comes in anyway, though, for various reasons. If a defendant is facing trespass charges, for instance, a prosecutor would want to introduce evidence that the defendant has previously been convicted of trespassing. The defense will object that it's propensity evidence, but the prosecutor will respond that it's admissible if he's using it to establish something other than the likelihood that the defendant did the same thing again. If the prosecutor needs to prove that the defendant knew he was not allowed on the property, the trespass conviction is very strong evidence on that point. Another common exception is in sexual-assault cases, where some jurisdictions allow this type of evidence. Indeed, Wisconsin is among the states that explicitly permit evidence of the defendant's previous convictions for certain sex crimes to demonstrate that he committed a sex crime again in the current case. WI Stat § 904.04(2)(b). Louisiana likewise allows propensity evidence to establish that the defendant has a history of &quot;sexually assaultive behavior&quot; or a &quot;lustful disposition toward children.&quot; C.E. 412.2. Likewise, the defendant may be able to introduce evidence that the victim previously consented to sex and is therefore likely to have consented to sex in the current case. C.E. 412. EDIT: To address your examples, then, I would say that that the first would probably not survive a Rule 404(b) objection, and the second one would stand a better chance. On the second one, the defense should argue that the court should allow evidence of the defendant's interest in Egyptology, but not evidence of the convictions, as that would allow the jury to consider his motive without being diverted into propensity territory. The prosecution should probably counter that the defendant's convictions show more than just the existence of a motive, but also the strength of that motive, as well as perhaps that the defendant had the prior knowledge and skill that would be necessary to pull off a museum heist. The judge could go probably rule either way without being reversed. I would clarify one point on how to analyze and characterize this evidence: Rule 404 deals with propensity evidence, i.e., evidence that is meant to demonstrate that a person acted in conformity with his character. Subsection (a) deals with establishing propensity through &quot;character evidence,&quot; which is evidence that the defendant's character or character traits are consistent with the conduct in question at trial; while subsection (b) deals with establishing propensity through &quot;other acts&quot; evidence, which is evidence that the defendant previously engaged in conduct that is consistent with the conduct at question of trial. Both types of evidence -- character evidence and other-acts evidence -- are inadmissible to establish propensity, but they may be admissible to establish motive, plan, preparation, etc. So when your defendant's previous convictions are offered to prove motive to expand his Egyptology collection and not to establish propensity, the court could allow them into evidence not because they are admissible propensity evidence, but rather because they are not propensity evidence at all.
You would be amazed at how vanishingly few the number of cases are where a signature is disputed. Signatures are easy, quick and don't require you having inky fingers all the time. They are so useful that to throw them out to deal with infinintesimally small fractions of disputes over their veracity (bearing in mind that 99.999999999% of contracts never have a dispute that gets to a court [or at all]) is ridiculous. When it does happen, handwriting analysis is probably not going to be put into evidence anyway. Testimony like "I saw him sign it" is way more likely to be used.