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. 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.”Clear evidence “is intended to be a ‘demanding’ and ‘rigorous’ standard. In United States v. Armstrong,the United States Supreme Court held that a defendant must prove selective prosecution by “clear evidence.”
Hence, in a selective prosecution context, the defendant must show that the “prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose.” This requires the defendant to establish both “(1) that ‘similarly situated individuals were not prosecuted’ … and (2) that the decision to prosecute was ‘invidious or in bad faith.’ ”
Unfortunately officers take out warrants when they don't have any solid evidence indirect, or direct. When this happens it is even more crucial that you hire a Paulding County criminal defense lawyer.
