The Mythic Difficulty in Proving a Negative
![handle is hein.journals/shlr15 and id is 300 raw text is: THE MYTHIC DIFFICULTY IN PROVING
A NEGATIVE
Kevin W. Saunders*
An oft-cited proposition holds that there is inherent diffi-
culty in proving negative averments.1 Despite consistent schol-
arly attempts to refute this myth,2 judicial reasoning continues to
refer to this supposed difficulty to justify a shift in evidentiary
burdens.'
* M.S., M.A., Ph.D., University of Miami; J.D., University of Michigan; Law
Clerk to Hon. Kenneth W. Starr, Court of Appeals, District of Columbia Circuit.
I See, e.g., Walker v. Carpenter, 144 N.C. 674, 676, 57 S.E. 461, 461 (1907)
(The first rule laid down in the books on evidence is to the effect that the issue
must be proved by the party who states an affirmative, not by the party who states a
negative.), cited with disapproval in MCCORMICK'S HANDBOOK OF THE LAW OF Evi-
DENCE § 337 n.15 (E. Cleary ed. 1984). The Walker court may have been alluding to
certain early English texts on evidence. See, e.g., G. GILBERT, THE LAW OF EVIDENCE
104-05 (Dublin 1754). The simplicity of Sir Gilbert's reasoning is seductive:
And here it is first to be considered [when analyzing proofs], that in all
Courts of Justice the Affirmative ought to be proved, for it is sufficient
barely to deny what is affirmed until the contrary be proved, for Words
are but the Expressions of Facts, and therefore when nothing is said to
be done, nothing can be said to be proved; and this is a Rule both in the
Common and Civil Law. The Civil Law says Probatio imponitur ei qui alle-
gat, negantis autem per rerum naturam nulla est probatio.
Id. at 4. The Walker/Gilbert reasoning is by no means a curiosity of legal history.
See, e.g., In re Rogers, 297 N.C. 48, 57, 253 S.E.2d 912, 919 (1979) (The rationale
for this rule [that the party who asserts an affirmative be required to bear the bur-
den of proof on it] lies in the inherent difficulty of providing the negative of any
proposition.); see also infra note 3.
2 See, e.g., W. BEST, A TREATISE ON THE PRINCIPLES OF EVIDENCE § 255 (London
1849) ([Plroof of a negative may often very reasonably be required when the qual-
ifying circumstances are the direct matters in issue .. ); P. TAYLOR, A TREATISE
ON THE LAW OF EVIDENCE § 364 (1887) (arguing that allocation of burden of proof
to party asserting affirmative has been adopted as rule of convenience, and not
because it is impossible to prove a negative); see also MCCORMICK, supra note 1,
§ 337 (labeling the rule as erroneous).
According to Best, the belief that a burden should shift from a party asserting a
negative to the opposing party because of the supposed difficulty of proof is actu-
ally a misapplication of the Roman Code dictum that the burden of proof lies gen-
erally on the party asserting the affirmative. W. BEST, supra, § 255. See supra note 1
for a handy example of this type of misapplication.
3 The proposition that negative averments are inherently difficult to prove has
been applied in a variety of recent cases. See, e.g., Bumble Bee Seafoods v. Director,
Office of Workers' Compensation Programs, United States Dep't of Labor, 629
F.2d 1327 (9th Cir. 1980) (availability ofjob opportunities); United States v. Wylie,
625 F.2d 1371 (9th Cir. 1980) (adequacy of government denial of electronic sur-
veillance); Carson v. United States, 560 F.2d 693 (5th Cir. 1977) (assessment of
wagering excise tax); Slicer v. Quigley, 180 Conn. 252, 429 A.2d 855 (1980) (negli-
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The Mythic Difficulty in Proving a Negative
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