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By statute, Georgia law draws a distinction between so-called positive and negative evidence. Testimony that an event took place is regarded as positive testimony. Testimony of a witness that he did not see or hear a particular event is regarded as negative testimony. The rule is that if witnesses are equally credible and have the same opportunity of observation, positive testimony should outweigh that which is negative. However, a request to charge this should be granted only where the witnesses are of equal credibility. The statute provides that the positive evidence rule does not apply "when two parties have equal facilities for seeing or hearing a thing and one swears that it occurred while the other swears that it did not."

In Thomas v. Lockwood, the court pointed out that "[d]irect and positive testimony … which is given by an unimpeached witness as to the existence of facts apparently within his own knowledge, which is not in itself incredible, impossible, or inherently improbable, and which is not contradicted directly or indirectly by proof of facts or circumstances that could be taken as incompatible with such testimony, can not be arbitrarily rejected by a … trier of the facts upon the mere surmise that it perhaps might not be in accord with the truth." However, this rule may now only be strictly applicable, if at all, to civil cases. The language in Lockwood was quoted with approval in State v. Stokes. The Court of Appeals in State v. Hester overruled State v. Stokes in favor of the rule announced in Tate v. Smith. There, the court held that the trier of fact "is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony."

In Patton v. State, the court held that juries, as well as courts, are not bound to believe testimony as to facts incredible, impossible or inherently improbable. "Great physical laws of the universe are witnesses in each case, which cannot be impeached by man, even though speaking under the sanction of an oath." However, in Brandon v. State, the court held that this rule applies "in only 'extraordinary cases' … and only for statements 'which run contrary to natural law and the universal experience of mankind.' When there is nothing inherently impossible, incredible or even improbable, the rule does not apply." Further, in Stephens v. State, the court held it is error to charge this rule when there is nothing in the testimony of a defendant that was improbable or incredible. This charge may be impermissible comment on the evidence. Contact a Paulding County Criminal Defense lawyer today!

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