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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.

  • You assert the burden of proof is on the opposing party to prove false. If I am drug company and I assert I passed clinical trial with company X the FDA does not need to prove there is not company X - the drug company needs to prove X is real and trial is real. If I claim I lost $10,000 playing cash games and I am professional gambler the IRS does not need to prove I did not lose that money. The party making the assertion often has the burden of proof. – paparazzo Dec 10 '15 at 23:44
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    @Frisbee: 1. First of all, testimony of expert witnesses is evidence. Otherwise, there would be no point to having them testify. 2. The principle you describe is called actori incumbit probatio (the burden of proof is on he who asserts). And that is my point. Thank you for helping me make it. In this case, the one who asserts is the one claiming the testimonials are false. Because without it, there would be nothing to dispute. In other words, the burden of proof is always on the prosecutor (criminal) or plaintiff (civil). In both cases, that is the party alleging false testimonials. – Mowzer Dec 11 '15 at 0:05
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    @Frisbee: IRS and FDA are not analogous. Those are special cases regarding burden of proof. And honestly, I don't see your point in your latest post. "Play with words." "Slugs." "Emails." "Depositions." "Chain of custody." Characterizations of my sense of logic. (FWIW ad homonym attacks are always a sign the attacker has lost the debate.) I don't see what any of that has to do with the question at hand. The only discernible statement I can understand is false. You say the burden of proof is not always on the prosecutor. That is simply false. IRS & special cases notwithstanding. – Mowzer Dec 11 '15 at 0:26
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    @Mowzer "ad homonym" is incorrect, even if it is a homonym of "ad hominem." – phoog Dec 11 '15 at 5:11
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    @Frisbee I think the point is that neither the IRS nor the FDA is analogous to a court of law. A tax return is not a trial. Rules of evidence and burdens of proof are different. Also note that the first example given to illustrate the definition of evidence in dictionary.law.com/Default.aspx?selected=671 is "oral testimony." – phoog Dec 11 '15 at 5:19
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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:

  1. A business Bragco presented a glowing testimonial from Newco in its advertising material.
  2. The regulator (ACCC) has made the allegation that the testimonial is false; they bear the burden of proof.
  3. 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.
  4. 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.
  5. 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.
  6. 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&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?

  • Consider this possibility in your hypothetical: 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. Then what? – Mowzer Dec 11 '15 at 0:17
  • +1 for a good answer anyway though. But please do respond to the question. – Mowzer Dec 11 '15 at 0:27
  • Thanks for the response. The clear point that comes across to me in reading your answer is that you have assumed a certain version of the facts to be true. Specifically, that Bragco is lying and trying to mislead the court to believe a false version of events. This assumption IMHO has colored and biased your analysis. Your own words prove this when you write "bullshit." I don't believe you have given an objective analysis of the arguments. As a test, I wonder if anyone has ever successfully won a claim of false testmonials on the sole basis of a negative search. Are you aware of any? I'm not. – Mowzer Dec 11 '15 at 7:25
  • As to your point about required record keeping. It is true that companies are required to keep the records you describe. I believe there are statutes requiring it. However, I don't believe there are any such statutes requiring record retention for testimonials. – Mowzer Dec 11 '15 at 7:25
  • Statutes are not the be all and end all of what a business is required to do. They must also act prudently and keep these sorts of records as a precaution against the claim. – Dale M Dec 11 '15 at 8:15
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If someone testified that a search was done to try to find something, and the witness describes the extent of the search and the results (including a result of not finding it), that would tend to support a conclusion that what is being searched for does not exist. The search should be convincingly thorough, and is somewhat risky because of how easily rebuttable that conclusion is if false.

If the evidence consists of just testimony that a convincingly thorough search was done and came up empty, and there is no evidence contradicting that, the balance between the two sides might lead to a preponderance-of-the-evidence finding that the person in question does not exist. If the jury does not think the search was sufficiently thorough, they can assign little or no weight to the evidence about the search's conclusions. Evidence about how the search may have been insufficient could be used to call its conclusions into doubt and encourage the jury to downweight the evidence.

For example, if a jury is deciding about the validity of a patent, the patent owner will describe a search process that was done to try to find invalidating prior art, note that a credible party (USPTO) performed such a search, found nothing (& therefore issued the patent) and introduce that to support the conclusion that no invalidating prior art exists. If the other side wants the jury to reach a different conclusion, they may need to introduce specific evidence supporting the existence of the thing which their opponent alleges does not exist.

Update: According to this ABC News article, "Proving a Negative: In Porter Case, Inaction Is on Trial," it is a death (Freddie Gray's) resulting from alleged inaction or negligence that the prosecution must prove, beyond a reasonable doubt. William Porter's case will be interesting to track for someone interested in this question. (Please edit when the result comes out!)

  • Does your answer take into account the last paragraph in the debate transcript? If so, how? 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. – Mowzer Dec 10 '15 at 19:05
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    @Mowzer: "If the jury does not think the search was sufficiently thorough, they can assign little or no weight to the evidence about the search's conclusions. Evidence about how the search may have been insufficient could be used to call its conclusions into doubt." – WBT Dec 10 '15 at 19:07
  • +1 Upvoted for accuracy. – Mowzer Dec 10 '15 at 19:11
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As a very concrete example, if you are in a civil court, and you are asked to produce some evidence that you should reasonably have, and you tell the court that you don't have the evidence because you destroyed it, then the court can and will draw conclusions from this. The destruction of evidence by you is an indication that the evidence would have been against you.

In the case of a customer testimonial, any reasonable person would expect that for example a jeaulous competitor might claim that the testimonial is fake, or someone else might claim it is fake, or that there might be a law somewhere that requires you to prove it is genuine. I would expect that. So if I showed customer testimonials in an advert, I would have something in writing. If that information isn't there, I would take that as evidence that the testimonials are fake.

  • In your first paragraph you accurately describe the spoliation of evidence rule. That involves "the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence..." The hypothetical in the OP has none of these things. So the rule does not apply. – Mowzer Dec 12 '15 at 17:41

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