Is there a presumption that a witness who testifies to an affirmative or negative memory should be credited with a negative memory?
British Columbia, Canada
The following excerpt is from Borthwick v. Johnson, 1997 CanLII 1990 (BC SC):
When dealing with conflict in evidence arising from a condition of memory, there may be taken a presumption that "ordinarily a witness who testifies to an affirmative is to be credited in preference to one who testifies to a negative", LeFeunteum v. Beaudoin (1897), 1897 CanLII 51 (SCC), 28 S.C.R. 89 at 93. That presumption must be applied with caution and examined against the whole of the evidence and in this case - as in most - it could not be solely determinative. Nevertheless, considering whose eye was sore and the second employee's total absence of recall, the presumption has weight here.
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