“Negative evidence is evidence to the effect that a circumstance or fact was not perceived or that it was, or is, unknown. It is generally of no probative value and, hence, inadmissible. However, a negative response to a question does not necessarily constitute negative evidence.” S C Gray, Inc v Ford Motor Co, 92 Mich App 789, 810 (1979) (citations omitted). Negative evidence is problematic because it presents two conflicting inferences: (1) the event never occurred, or (2) the event occurred but the witness did not perceive it. Dalton v Grand Trunk Western R Co, 350 Mich 479, 485 (1957). The Dalton Court went on to state that “[t]he mere fact of nonhearing, standing alone, ordinarily has no probative value whatever as to the occurrence, or nonoccurrence, of the event.” Id. at 485. As an example, the Court cited the bombing of Pearl Harbor: most people did not hear the bombing, but that does not mean the bombing did not occur. Id. at 485-486. Therefore, the party relying on the evidence bears the burden of proving its probative value:
“[The party] must show the circumstances pertaining to the nonobservance, the witness’ activities at the time, the focus of his attention, his acuity or sensitivity to the occurrence involved, his geographical location, the condition of his faculties, in short, all those physical and mental attributes bearing upon his alertness or attentiveness at the time.
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[T]he weight to be accorded the testimony of a witness, his credibility, whether or not his testimony is affirmative and convincing, rests with the jury.” Dalton, 350 Mich at 486.
The following are not excluded by the hearsay rule, “regardless of whether the declarant is available as a witness:
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(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in [MRE 803(6)] if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.
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(10) Absence of a Public Record. Testimony—or a certification under [MRE 902]—that diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that:
(A) the record or statement does not exist; or
(B) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.” MRE 803(7); MRE 803(10).
Testimony that there were no recorded reports of an allegation of sexual assault was admissible under MRE 803(7) because it was “relating to the absence of a matter . . . of a kind of which a memorandum, report, record, or data compilation [is] regularly made and preserved”; thus, “evidence that no report was ever made was admissible to prove the nonoccurence or nonexistence of the matter[.]” People v Marshall, 497 Mich 1023, 1023 (2015) (quotation marks and citation omitted; first alteration in original). Moreover, the evidence was relevant under MRE 401 because the evidence “was probative of the complainant’s credibility; specifically, the complainant’s claim that she had reported the abuse to her school teacher.” Marshall, 497 Mich at 1024.
Testimony that the location where the plaintiff fell had been used for years without accident was inadmissible as negative evidence because proving an absence of accidents does not tend to prove an absence of negligence. Larned v Vanderlinde, 165 Mich 464, 468 (1911).
“[M]ere testimony that a sound was not heard, by itself, does not present an issue of fact as to whether or not the sound existed. Such ‘negative evidence’ must be preceded by a showing that the witness had been in a position to hear the sound if it occurred.” Beasley v Grand Trunk Western R Co, 90 Mich App 576, 584 (1979) (citation omitted). In Beasley, six witnesses testified that they did not hear a train whistle or any other warning device, and one of the witnesses was “positive” that the train did not blow its whistle. Id. at 585. In light of these facts, the Court concluded that the evidence was admissible as a question of fact for the jury to decide. Id. 585-586.