State v. Blair

BYERS, Judge,

concurring.

While I concur in the results reached by my colleagues, I do not agree with all of their reasoning on the issue of positive and negative evidence.

In defining negative testimony the trial court instructed the jury “negative testimony is that in which a witness swears that he was also present at the time and place, and that if a certain thing was said, or if a certain thing occurred, that witness did not hear or see it.” This instruction defines negative evidence too broadly and encompasses positive and negative testimony.

Although the instruction given in the instance case defines negative testimony too broadly, I do not agree it would be better for the trial court to omit an instruction on positive and negative testimony altogether. In cases where there is negative testimony, the jury should be instructed on how to weigh such testimony in relation to positive testimony.

At most, it seems to me, negative testimony should rise no higher than circumstantial evidence. An instruction is required on circumstantial evidence, and I see no reason for not requiring an instruction on negative evidence.