The Value of Negative Evidence

Who Should Read This Publication?

• Military defense counsel — The absence of expected evidence can raise important questions about an allegation. Counsel should understand when missing records, communications, physical traces, surveillance images, or other expected evidence may have legitimate investigative significance—and when their absence proves very little.
• Civilian attorneys representing service members — Attorneys evaluating the government’s evidence should consider not only what was collected, but also what reasonably should have existed if the alleged events occurred as described. Identifying that distinction can reveal important areas for additional investigation.
• Defense investigators — Investigators should be trained to recognize potentially significant absences without turning them into unsupported conclusions. Before relying upon negative evidence, the investigator must establish why the evidence should have existed, where it should have been found, and whether the search for it was sufficiently reliable.
• Attorneys and investigators evaluating digital evidence — Access logs, text messages, emails, location information, surveillance recordings, transactions, and other electronically generated records may be expected under certain circumstances. Their absence can be significant, but only after retention practices, system reliability, deletion, overwriting, and search limitations have been considered.
• Legal teams testing whether an alleged event could have occurred as described — If an allegation should have produced identifiable records or physical evidence but none can be located, that absence may provide another means of testing the allegation and identifying questions requiring further investigation.
• Investigators reviewing incomplete government investigations — Negative evidence may also reveal an investigative failure rather than a factual conclusion. Investigators should determine whether evidence is truly absent or whether nobody adequately searched for, requested, collected, or preserved it.
• Attorneys and investigators dealing with physical evidence — Some alleged events would reasonably be expected to leave physical traces, injuries, damage, biological material, or other observable evidence. The absence of those expected findings should be evaluated in context rather than automatically characterized as proof that an event did not occur.
• Service members and families seeking to understand how evidence is evaluated — This publication explains why a professional defense investigation considers both the evidence that exists and evidence that might reasonably be expected but is missing.