How to Prove a Negative

I had a jury trial this week that was causing me a great deal of anxiety trying to figure out how to prove a negative.? The charge was felon in possession of a firearm.? It was a constructive possession case (firearm recovered behind the driver under a floor mat), so I had to use the defendant’s statement to the arresting officer to establish knowledge of the firearm.? When confronted by the police about the gun after the search of the car he was driving, the defendant’s response was “So what?? My right to possess a firearm was restored.”? Now I knew this wasn’t true, but proving it was going to be very difficult.? The defendant’s conviction was for a federal offense and his probation officer wasn’t willing to come to court to testify that he had not had his rights restored (and we all know we can’t force a federal official to testify because of the Touhy case).? I ?intended to throw all my eggs into the basket of simply arguing that restoration was an affirmative defense, and I didn’t have to prove anything, but we all know that could have been a disaster with a jury.? If the only piece of evidence they heard on the issue was the defendant’s claim that he had his rights restored and I didn’t effectively answer it, the reality of jury nullification could have sunk my case.?

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Enter stage left to this drama is everyone’s favorite, Elliott Casey of the Commonwealth’s Attorney Services Council.? We were both teaching at Prosecutor Bootcamp two weeks ago and I started discussing this problem with him.? He pointed out the case of Focke v. Commonwealth, a civil case that establishes that Virginia Courts don’t have the authority to restore the rights of individuals with felony convictions and points out in dicta that the federal mechanism to do so hasn’t been funded.? But that could have left me again with the frustration that we so often experience as prosecutors—knowing that a certain fact is true, but entirely incapable of proving it to the jury.?

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That’s when I decided to give judicial notice a try.? Judicial notice is one of those concepts we tend to study in law school and forget about in our actual work as litigators.? And there are many times when this device may be able to help us.? Judicial Notice (established as Rule 201 in Virginia’s Rules of Evidence) allows the trial court to take notice of facts that are not subject to reasonable dispute that are either in the common knowledge or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.? Bingo!? That solved the problem.? Armed with a 2023 Court of Appeals decision that stated certain facts conclusively, I was able to get the Court to take judicial notice that, “Under federal law, state courts cannot remove the disability to possess a firearm that results from a federal felony conviction.? At present time there is not a currently operational method by which an individual convicted of a federal felony can have their rights to possess a firearm restored.”? And that ended the dispute.? No longer did I have to worry about the jury getting sidetracked by a distraction, we could fight the battle on the terms it deserved.

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Another way that you could tackle this at trial is through an exception to the hearsay rule.? As prosecutors we are used to the concept of putting into evidence a business record and know the questions we need to ask the records custodian to admit a document.? But what about when we are trying to prove that a document doesn’t exist?? I remember being bedeviled by this problem when I started my career as a traffic prosecutor when handling hit and run cases on unattended property and trying to figure out how I would prove that the defendant didn’t report the accident to state police within 24 hours as required by law.? This is where knowing the rules of evidence inside and out can be our friend.? Because there is an exception to the hearsay rule for showing the absence of an entry in a public record (see Rule 2:803).? Moreover, typically you don’t even need live testimony to establish this and can just present an affidavit from the records custodian that they looked for the record and it doesn’t exist (though please note that the rule is more nuanced in cases involving an allegation of failure to register as a sex offender).

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The other fact that all of this highlighted for me is the importance of us all being willing to go back to the basics. I’ve been trying cases for nearly 20 years, and this was my 64th case before a jury.? But even with that level of experience, the reality is that sometimes I too forget about the nuances of the rules that can really help us out.? There is a concept called epistemological humility that emphasizes the importance of knowing what we don’t know and always having a willingness to learn.? May this week find us embracing that challenge and seeking out both new and old knowledge.? Have a wonderful week my friends!

David A. Lord

Deputy Commonwealth's Attorney

City of Alexandria