©2016 cengage learning. all rights reserved. direct and circumstantial evidence and the use of...

©2016 Cengage Learning. All Rights Reserved. ©2016 Cengage Learning. All Rights Reserved.

DIRECT AND CIRCUMSTANTIAL EVIDENCE AND

THE USE OF INFERENCES

Chapter 4

Learning Objectives

Distinguish between the burden of production and the burden of persuasion.

Give a constitutionally acceptable definition of reasonable doubt.

Distinguish between direct evidence and circumstantial evidence.

List some examples of inferences that may be drawn from facts proved.

List some inferences that may not be drawn.Define presumption, and state how a presumption

may be used in a criminal prosecution.

©2016 Cengage Learning. All Rights Reserved.

Evidence and Proof

The means of establishing and proving the truth or untruth of any fact that is alleged is what is known as evidence.

Proof is the result of evidence and evidence is the means of attaining proof.

The burden-of-proof requirement has two components: The burden of production requires the party with

the burden on a factual issue to introduce sufficient relevant evidence to prove the fact at issue.

The burden of persuasion requires the party with the burden to produce sufficient evidence to persuade the fact finder that a fact exists.


The Reasonable Doubt Standard

In order to convict a defendant for the crime charged, every essential element of the crime must be proved by the prosecution beyond reasonable doubt.

Courts and legal scholars have not reached a consensus on the exact definition of reasonable doubt. As a result, the instructions trial judges give juries

can differ from state to state and from court to court within a state.

The instructions must inform the jury that they must judge the guilt of the defendant according to a high degree of certainty.


The Reasonable Doubt Standard

The U.S. Supreme Court has examined this issue in a series of cases.

The Court has interpreted reasonable doubt to mean less than “actual substantial doubt” but more than “a mere possible doubt.” In Sandoval v. California (1994), the Court held a

jury should not find a defendant guilty because it did not have “substantial doubt” about the defendant’s guilt, but it should not refuse to find that same defendant guilty simply because a “mere possible doubt” exists about the defendant’s guilt.


In re Winship397 U.S. 358 (1970)

The Supreme Court held the Due Process Clause requires the prosecution prove each element of a crime beyond a reasonable doubt.

The Court did not mandate any particular jury instructions on the exact meaning of the term reasonable doubt.


Victor v. Nebraska511 U.S. 1 (1994)

The Supreme Court held that while the jury instructions may attempt to define reasonable doubt, they need not do so.

All the U.S. Constitution requires is that “taken as a whole, the instructions properly convey the concept of reasonable doubt.”


Direct Evidence and Circumstantial Evidence

The U.S. Constitution requires that in all criminal cases the state or the federal government prove the essential elements of a crime beyond reasonable doubt through the use of two types of evidence. Circumstantial evidence is that which

indirectly proves or disproves a fact in issue and requires the fact finder to draw inferences.

Direct evidence is that which proves or disproves a fact in issue without any reasoning or inferences.

Direct and circumstantial evidence must also be used to prove mental elements that are required elements in many crimes.


Use of Evidence to Prove a Fact


Common-wealth v. Lee626 A.2d. 1238 (Pa. Super. 1993)

The defendant testified that he did not intend to take the victim’s life when he pointed a gun directly at the victim and pulled the trigger.

The Pennsylvania Superior Court affirmed, holding that “it is well settled that the intentional use of a deadly weapon on a vital part of the body raises a permissible inference of malice.”©2016 Cengage Learning. All Rights

Reserved.

The Inference of Intent

To prove intent, the law infers that people intend the reasonable, foreseeable consequences of their intentional and deliberate acts.

These inferences must flow rationally from the evidence presented in court. The “probable consequences” inference is often used

for finding criminal liability of persons who “aid or abet” the commission of an attempted crime.


Direct and Circumstantial Evidence

Direct evidence is evidence that proves or disproves a fact in issue without the fact finder having to draw upon any reasoning or inferences.

Circumstantial evidence is evidence that indirectly proves or disproves a fact in issue.

The fact finder must reason or draw an inference from circumstantial evidence.


Use of Circumstantial Evidence Alone

In some cases, circumstantial evidence alone can be used. Holland v. United States: “[C]ircumstantial

evidence is … no different from testimonial evidence.”

When only circumstantial evidence is used, many states do not follow a general rule like that set forth in the Holland decision, but add requirements.

In a few crimes, such as treason, prosecutors use direct evidence in proving the offenses.©2016 Cengage Learning. All Rights

Reserved.

Means–Opportunity–Motive asCircumstantial Evidence

When eyewitness evidence is not available, the three questions used in investigating crimes are: Who had the means of committing the crime? Who had the opportunity to commit the crime? Who had the motive to commit the crime?

Most courts hold that proof only of motive, or only of opportunity, is insufficient to permit submission of the case to the jury.

If circumstantial evidence shows both motive and opportunity, a case can go to the jury.


Means–Opportunity–Motive asCircumstantial Evidence

Conviction of a crime can require proof of motive. For example, 18 U.S.C.A. § 248 makes it a crime

to intentionally injure or intimidate a person working at or using a reproductive health clinic.

If the prosecution does not introduce evidence of motive, defendants can argue to the jury that the failure to do so creates reasonable doubt.

Defendants may also use circumstantial evidence.


“Modus Operandi” as Evidence and Investigative Tool

Modus operandi (“method of working or operating”) is commonly used as an investigative tool to link crimes to suspects. Modus operandi evidence, such as evidence of other

crimes with similar elements, permits the jury to draw inferences of guilt where the other crimes can be tied to the defendant.

Rule 404(b) of the Federal Rules of Evidence and most state evidence rules permit the prosecution to use evidence of past crimes to prove modus operandi only if the other crimes share peculiar or distinctive features with the crime(s) charged.


Fingerprints and Shoeprints as Circumstantial Evidence 2222

Fingerprints and shoe prints are circumstantial evidence, and inferences can be drawn from their presence at a crime scene.

The jury may use a permissible inference to reach a conclusion.

The prosecution retains the duty to persuade the jury to make the inference.


Rape Kits as Circumstantial Evidence 2222

In rape cases that go to trial, rape kits can be a valuable source of circumstantial evidence. Where reports are made by a victim, it is important to

collect and preserve physical evidence as quickly as possible.

The Federal Violence Against Women Act, 42 U.S.C. § 13925, mandates that all states make forensic medical examinations available to victims free of charge.

Victims have no obligation to report the sexual assault to police, but may do so anonymously to the police or to a hospital.


Inferences Drawn from Other Bad Acts

or Other Convictions

A defendant charged with a crime must answer for only that crime at trial.

Evidence of prior crimes or other prior bad acts is generally held to be inadmissible because it could cause prejudice. There are exceptions to the rule forbidding

evidence of prior crimes or bad acts (see Rule 404(b) of the Federal Rules of Evidence).

In some circumstances, evidence of past violent acts of the victim may be introduced by the defendant.


Thompson v. United States 546 A.2d at 419 (D.C. App. 1988)

States why evidence of prior bad acts is inadmissible if only offered to prove character or propensity of the defendant.

The court pointed out that “the jury may condemn the defendant because of his prior criminal behavior and not because he is guilty of the offense charged.”


Inferences Drawn from Other Bad Acts

or Other Convictions

Rule 413 of the Federal Rules of Evidence makes evidence of prior sexual assaults admissible in criminal cases.

Rule 414 of the Federal Rules of Evidence makes evidence of prior child molestations admissible in criminal cases.

Most states have similar rules for admissibility of past sexual offenses. In states that have not adopted rules similar to Rule

413 or 414, there is often a “pedophile exception” to Rule 404 (b).


Some Inferences Should Not Be Drawn

Impermissible inferences include: When a defendant exercises the privilege against self-

incrimination (e.g., Griffin v. California); When the information is protected by the rape shield law

(e.g., Commonwealth v. Nieves); and The cessation of signature crimes after a suspect’s

arrest (e.g., State v. Miller).


Using Direct and Circumstantial Evidence

Finding illegal drugs in a motor vehicle: During a lawful stop of a vehicle, an officer

may see or smell illegal drugs.

An informant or other source might have provided probable cause to believe drugs were in the vehicle.

The location of the drugs, the amount of illegal drugs found, the criminal record of the passenger, and the passenger’s relationship with the driver and owner would all be circumstantial factors in determining who in the vehicle should be charged.



Proving the crime of possession of illegal drugs with intent to deliver: When a defendant is apprehended in the

act of selling illegal drugs

When the defendant has a large quantity of packaged illegal drugs in his or her possession

Possession of items associated with the drug trade such as the possession of cellphones, beepers, and/or firearms along with the illegal drugs


Circumstantial Evidence and Probable Cause

Before a law enforcement officer may arrest a person, search a car, or take similar actions, the officer must have probable cause. Probable cause requires that an officer have

“reasonable ground for belief of guilt, and that the belief of guilt must be particularized with respect to the person to be searched or seized.” Maryland v. Pringle, 540 U.S. 366, 370 (2003).



Proving the use of the Internet in child pornography: If a defendant is found to possess child

pornography, the government must prove the defendant received the images over the Internet to obtain a federal conviction (an interstate violation).

Internet use must often be proved by circumstantial evidence.


United States v. Williams128 S. Ct. 1830 (2008)

The Supreme Court reversed the Eleventh Circuit Court of Appeals and held that the PROTECT Act was constitutional.

The Act makes it a crime for a person to distribute information on the Internet in a manner that “reflects a belief” or is “intended to make another believe” the person is distributing child pornography.

Distribution of child pornography can be a difficult crime to prove and the Act gives prosecutors the ability to prosecute if the image is of an actual child or appears to be a minor.©2016 Cengage Learning. All Rights

Reserved.


Proving physical and sexual abuse of a child: In a situation where an adult is the sole

caretaker of the child and it is shown the injury was not accidental or self-inflicted.

Some sexual abuse statutes require proof of forcible compulsion. When the victim is a child, the child often submits to the advances of adults who have parental or similar authority over the child.



Proving the defendant was the driver of a motor vehicle: Proof beyond reasonable doubt that the

defendant was driving the vehicle is required and is central to the conviction of the defendant in many moving vehicle trials.


Humphries v. State696 S.E.2d 400 (Ga. App. 2010)

Police officers making a random check of license plates determined that a vehicle’s owner, a male, had a suspended driver’s license.

The person operating the vehicle was a male, and the police made the inference that the owner was driving the vehicle illegally.

The Court held that the police had reasonable suspicion to make a stop of the vehicle, in the absence of evidence showing that someone else was driving the car.


State v. Fitzgerald63 So.3d 75 (Fla. App. 2011)

The defendant was charged with driving a car while intoxicated.

The state trooper found the defendant in the driver’s seat of a vehicle parked at an intersection. The motor was off, but the keys were in the defendant’s right hand.

The court held that this constituted physical control of the vehicle under Florida law.


Proving Corpus Delicti by Direct or Circumstantial Evidence 2122

In all criminal cases, the prosecutor must prove: A crime has been committed by someone

(corpus delicti); and The defendant committed the offense.

The corpus delicti of most crimes is ordinarily proved by direct evidence, as when the victim or an eyewitness tells the police about the occurrence of a crime.


Proving Corpus Delicti by Direct or Circumstantial Evidence 2122

The corpus delicti of other crimes can be proved by physical evidence; e.g., a burglary is shown by a broken window and missing valuables.

The corpus delicti of a murder could be proved by a dead body with a knife in the chest.

As a general rule, corpus delicti must be established beyond a reasonable doubt. When an attempt is made to prove corpus delicti by

circumstantial evidence, the general rule is that the evidence must be so conclusive as to eliminate all reasonable doubt a crime was committed.


State v. Barker945 N.E.2d 1107 (Ohio App. 2010)

The general rule is that corpus delicti must be established beyond a reasonable doubt.

In the Barker case the defendant was convicted of murder based in part on the testimony of two witnesses who stated the defendant confessed he had killed his girlfriend.

The Ohio Court of Appeals held the corpus delicti rule required independent proof in addition to the confession.

The Court noted the fact the victim had been missing for three years and had not touched her bank account was evidence she was not missing, but in fact dead.


Tetso v. State45 A.3d 788 (Md. App. 2012), cert denied 52 A.3d 979 (Md. 2012)

The husband of a missing woman was convicted of second-degree murder based on circumstantial evidence.

The appeals court affirmed the conviction, saying that both corpus delicti requirements were satisfied by the evidence. Proof of death included the facts that the

victim’s dogs were left alone at her house and that her credit cards had not been used since her disappearance.

Proof that the defendant committed the murder included the facts that he knew that his wife was having an affair and wanted a divorce and that he told others that he planned to buy a new boat using money from the victim’s life insurance policy.


The Sufficiency-of-Evidence Requirement

to Justify a Guilty Verdict

One of the most common grounds of appeal following a jury verdict or a judge’s finding of guilty is that of insufficiency of evidence (sufficiency-of-evidence requirement). Defense argues there wasn’t sufficient evidence

to support the verdict or finding of guilt beyond a reasonable doubt.

Either direct or circumstantial evidence will support a finding of guilt if the evidence is legally sufficient to prove all of the essential elements of the crime charged.


The Use of Presumptions and Inferences

The presumption stated in the jury instruction is ordinarily referred to as the “presumption of innocence” and is mandatory.

This presumption can be rebutted but the burden remains with the prosecution throughout the trial. Conclusive or irrebuttable presumptions are

those that cannot be overcome by evidence showing otherwise.

Inferences are conclusions that a jury or judge may make based upon the evidence presented.


Additional Classifications of Evidence

Parole evidence is oral or verbal evidence. If a confession is only verbal, it is a considered a

parole confession.

Testimonial evidence is the statements of witnesses in court under oath.

Corroborative Evidence is evidence that adds weight or credibility to a case. In rape cases, corroborative evidence is

important to reinforce the testimony of the victim.

Tangible evidence is physical evidence such as weapons, illegal drugs, or shoplifted items.


Res Ipsa Loquitur as an Inference

The phrase, doctrine, or rule res ipsa loquitur (“the thing speaks for itself”) is used in civil and criminal law.

Permits, but does not require, a jury to draw a conclusion. In an assault case, photographs of the victim’s

injuries can be introduced into evidence through a medical professional who verifies the accuracy of the photographs taken close in time to the occurrence of the crime.


©2016 cengage learning. all rights reserved. direct and circumstantial evidence and the use of...

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