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Quite aside from this particular issue ... I'd be interested in a followup as to what happens in court if/when one side is bound to prove a negative.  What do the precedents say here?
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It seems to me that you could (maybe!) compare this, loosely, to a "Smith vs Central Intelligence Agency" court case.  Smith (Jonez) believes that the CIA uses Remote Viewers, and wants the CIA to pay reparations for spending tax money foolishly.  Dr. D heads the CIA and says, wow, you would expect to see some elephant tracks in the snow, if there really were Remote Viewers employed in our Company.  
(There are such tracks, because the CIA did employ these fellows.)
In the Alternate Star Trek World where the CIA didn't (or maybe didn't) use Remote Viewers:  no tracks are found.  But Smith / Jonez argues that the CIA still could conceivably have used Remote Viewers.  Dr. D points out the 8 most likely places that Remote Viewing would have left tracks in the snow, proves to everybody's satisfaction there are no rabbit tracks on record, and invites the plaintiff to propose any additional places we might SEE such rabbit tracks.  
Plaintiff produces no evidence, but argues brilliantly that there could be good reasons why we haven't seen them.
Obviously the plaintiff would lose that court case?, if he produced no positive evidence of tracks.  No?  But I'm missing something here.  What might that be?
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In any case, I'd be fascinated to hear about the closest judicial analogue to --- > putting the burden of proof onto someone who has to prove (51% confidence) a negative.  I have no doubt such cases exist.