criminal evidence 6th edition norman m. garland chapter 11 circumstantial evidence

Criminal Evidence6th Edition

Norman M. Garland

Chapter 11Circumstantial Evidence

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Direct Evidence Versus Circumstantial Evidence: A Majority

ViewAs the federal jury instruction defining direct and circumstantial evidence puts it:

“The law makes absolutely no distinction between the weight or value to be given to either direct or circumstantial evidence. Nor is a greater degree of certainty required of circumstantial evidence than of direct evidence.”


Direct Evidence Versus Circumstantial Evidence: A Minority

ViewIn a minority of states (California and 12 other states), the courts tell jury members that they may not find the defendant guilty based on circumstantial evidence unless the proved circumstances are:

(1) consistent with the theory that the defendant is guilty of the crime, and

(2) cannot be reconciled with any other rational conclusion.


Direct Evidence Definedo Direct evidence is the testimony

of a person who asserts or claims to have actual knowledge of a fact, such as an eyewitness.


Circumstantial Evidence Defined

o Circumstantial evidence is evidence that tends to establish the facts in dispute by proving the existence of another set of facts from which an inference or presumption can be drawn.


But, what is it?o Circumstantial evidence is an indirect

approach to proving the facts in dispute.

o Federal law defines it as “proof of a chain of facts and circumstances indicating the existence of a fact.”

o Sometimes circumstantial evidence is called “indirect evidence” because certain facts may be inferred to have taken place when other facts are proved to have happened.


Why use circumstantial evidence?

o Circumstantial evidence can be as convincing in proving guilt as direct evidence, and often may be even more reliable.

o Law enforcement officers need to guard against being too skeptical of circumstantial evidence.


Science and Circumstantial Evidence

o Most of the scientific evidence presented by forensic experts is nothing more than circumstantial evidence; yet its reliability can be very satisfactory and convincing.


Relevancy of Circumstantial Evidence

Whether direct or circumstantial evidence is to be introduced, the rules of admissibility are the same.

oFirst, the evidence must meet the requirement of relevance—it must tend to prove or disprove a pertinent fact.

oSecond, the evidence must be presented through a witness who has personal knowledge about the subject of their testimony.


The FRE Weighs Ino In the words of FRE 401, the

evidence must have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”


Motion in Limineo To keep testimony or tangible

evidence out of court, either side may object to the evidence.

o They may make the objection at trial when the opponent first tries to introduce the evidence, or in a motion, sometimes made at the pretrial.

o The name for a motion to exclude or admit evidence is a motion in limine.


Again, the Balancing Testo FRE 403 has a balancing test that

requires the judge to exclude relevant evidence if its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”


Circumstantial Evidence and the Modus Operandi

o One of the most frequent uses of circumstantial evidence is to connect the accused with the crime, that is to identify the accused as the one who committed the act.

o To establish identity, the prosecution may introduce evidence that the accused has committed other crimes with the same modus operandi or that he or she had the ability and means with which to commit the crime in question.


Admissibility of Other Crimes, Acts, or Wrongs

o Revealing to the jury the other acts of misconduct and crimes committed by a defendant in a criminal trial could create a strong suspicion of guilt.


Prior Acts: Admissible?o The common law developed a

rule that normally, evidence of acts of misconduct and crimes of the defendant, which are not a part of the charge for which he or she is now being tried, may not be introduced during the trial.


Character Evidence and the FRE

o Federal Rule of Evidence 404(a) typifies the modern character evidence rule generally prohibiting the use of character evidence: “Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.”


When Character Evidence is Admissible

o Evidence of other crimes, acts, or wrongs committed by the accused may be introduced during a criminal trial if they are pertinent to certain trial issues other than the accused’s bad character and if the judge believes the evidence is particularly necessary to assist the jury in arriving at the truth.


The FRE and the Admissibility of Prior Bad (Criminal) Acts

o Prior bad acts can be strong circumstantial evidence when offered on such issues as in the language of FRE 404(b), “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”


Other Crimes toProve Motive or Intent

o Other acts of misconduct or crimes frequently become the reason or motive for repeating the same act or crime, or may be an indication that the accused intended a particular act.


Motiveo Black’s Law Dictionary defines

motive as a “Something, esp. willful desire, that leads one to act.”

--Black’s Law Dictionary (8th ed. 2004).

o Motive is that which moves a person to act, or explains the reason why a person acted.


The Use of Motiveo Although the law does not

require evidence of motive in any case, motive is always relevant because the accused’s conduct, identity, or intent may be inferred from the motive.


The Showing of Intento Intent, is a state of mind; it

expresses mental action that is usually coupled with an outward physical act to cause a particular result.


The Two Components of a Crime

o The mental state, or mens reao The physical action, or actus

reus


The Critical Importance of Intent

o Intent is a necessary element of most crimes, even though only a general intent to take the physical action is required.

o Being a state of mind, intent is not easily proved, and can only be proved by circumstantial evidence.

o Since we cannot look into the mind of an accused, the jury must infer intent from the evidence of what the accused said and did.


Evidence of Other Crimes to Prove Plan (or Design)

o Evidence of the commission of acts similar to the alleged crime committed may be admissible to show plan or design.


Prior Acts asCommon Plan or Design?

o Prior acts that are evidence of a common plan or design are not used to prove the intent or the mental element of a crime, but rather prove that the defendant engaged in the conduct for which he or she is charged.


The Doctrine of Chanceso The use of evidence of other

similar occurrences to show that the charged crime is not an isolated event due to chance.

o If the same situation happens time and time again, then these “accidents” can no longer be considered coincidental.


Usage of the Doctrine of Chances to Refute

o The use of other misconduct evidence to refute the possibility of accident or mistake may also occur when the defendant, charged with some particular criminal activity denies it occurred and claims innocence.


Using Other Crimes or Misconduct to Prove Identity

o During a criminal case, not only must the fact that a crime has been committed be proven, but it must be established that the defendant was the one who committed the act, unless he or she admits committing the act and claims some justification or legal excuse, such as self-defense.


Similar Crimes and Identityo Identity is particularly provable

by evidence the accused committed another similar crime.


Means or Capability to Commit a Crime

o Circumstantial evidence is often introduced to prove that the accused had the means with which to commit a particular crime or that he or she could commit it.


Consciousness of Guilto Frequently, a person who has

committed a crime will not deviate from his or her usual pattern of conduct.

o When this occurs, proof of uncustomary acts, statements, or appearance may be introduced to infer consciousness of guilt. oIt has been held that any act from

which the inference of consciousness of guilt can be drawn is admissible.


Evidence of Guilt: Observable Behavior

o Fleeing from the scene.o Highly emotional immediately after a

murder. o Attempted to evade and escape arrest. o Denied his identity or used a fake

name.o Failure to appear for trial.o Attempt to conceal evidence. o Refusal to participate in a lineup.o Attempt to bribe witnesses.


Character of the Defendanto If the defendant in a criminal

trial has a reputation of bad character, this reputation may be some indication of guilt because one usually acts in accordance with one’s reputation.

o The reputation of the defendant may, therefore, be pertinent to the issue.


The Universal Rule—FRE 404(a) Prohibits Proof of Character at

Trialo The prosecution is not permitted

to introduce evidence that the defendant is a person of bad character to prove guilt.


Prohibition of Proof of Character Two Reasons

o First, there is no presumption that the defendant in a criminal trial is a person of good character, and much trial time is saved by not requiring the prosecution to show that the accused is bad.

o Second, and probably the more realistic reason, if evidence is presented that the defendant has a reputation for being bad, it may subject him or her to undue prejudice.


Proving Good Characterof the Defendant

o The defendant’s good character rule requires that the evidence of good character must have some bearing upon the crime charged, that is, it must show traits in opposition to the type of crime that the defendant is accused of having committed.


The Differences: Character, Opinion, and Reputation

o Character, in general, is a description of a person's attributes, traits, or abilities.

o Opinion as to character is the witness’s personal judgment based on direct observation and personal knowledge of an accused’s specific traits of character.

o Reputation is the consensus of what other people in the community say about the accused’s character.


Prosecution’s Proof of Defendant’s Bad Character

o The defendant’s introduction of his or her good character evidence places character in issue, and the prosecution is permitted to meet this issue by impeachment, or by refuting or contradicting the defendant’s contention of being good, by proving that the defendant is really bad.


How to Impeach a Witnesso Devalue the character witness’s

testimony by asking the witness about specific acts of misconduct engaged in by the defendant.

o Test the character witness’s knowledge of the defendant or his or her reputation by asking whether the witness has heard of specific acts of misconduct by the defendant.


Prosecutorial Parameterso All that the courts require of the

prosecution is a good faith basis in fact that the accused committed the misdeed.

o When the prosecution asks questions about acts of misconduct by the defendant, the trial judge may require proof that there is a good faith basis for the question and the prosecution can be required to identify the source of the information and give evidence of its reliability.


Amount of Proof to Show Good or Bad Character

o No set number of witnesses is needed to prove either good or bad character.

o The trial judge will usually allow a reasonable number of witnesses on both sides so that the jury may make some determination.

o The judge will limit the number after a certain point; otherwise, the presentation of character witnesses could go on indefinitely.


Proof of Prior Sexual Misconduct

o FRE413 specifically allows the prosecution in sexual assault cases to introduce evidence regarding other uncharged sexual misconduct by the accused.

o FRE 414 permits the introduction of uncharged incidents of child molestation in a case where the accused is charged with an offense of child molestation.

o FRE 415 makes such evidence also admissible in civil damages cases brought by the victims of either sexual assault or child molestation.


Character of Victimso Homicide Victimo Self-Defense Claimso Victims in Sex Offense Cases


The Homicide Victimo When one person kills another, the

character of the deceased victim is generally unimportant.

o The crime of murder still stands whether the deceased victim was good or bad.

o In these circumstances, the law does not require that the prosecution present any evidence concerning the character of the deceased.


FRE and Character of the Victim

o FRE 404(a)(2) allows for the introduction of “a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.”

o In 2000, Congress amended Rule 404(a)(1) to provide that when an accused attacks the character of a victim under 404(a)(2), the door is opened to attack the same character trait of the accused.


Self-Defense ClaimsSelf-defense may be based on one of two theories: fear and first aggressor.

o If the defendant claims that he or she killed in self-defense based on fear, then the defendant must also show that he or she personally knew of that aggressive character.

o If the defendant claims that the victim was the first aggressor, then he or she may offer evidence of the victim’s character for aggressiveness to prove aggressive action.


FRE and Self-Defense Claimso FRE 405 allows the defense to

introduce instances of the victim’s violent conduct to prove that the victim was the first aggressor.

o Conduct evidence is limited to cases where character is an essential element of a charge or defense.


Victims in Sex Offense Caseso Historically, courts have allowed

the defendant in rape and sexual assault cases to introduce evidence of the victim’s prior sexual history in an attempt to raise a doubt about her consent or to discredit her story.

o FRE 404(a)(2) permitted the defense to put the victim on trial.


Rape Shield Lawso Rape shield laws provide that,

although evidence of the sexual conduct of the victim arguably has some minimal probative value, the person accused of a sexual offense is prohibited from introducing evidence of the sexual background or behavior of the victim.

o Such evidence is inadmissible because of its substantial prejudicial effect upon the victim and society’s interest in law enforcement.


Exceptions to the Rape Shield Law

o Evidence of other sexual acts by the victim is admissible to prove that a person other than the accused was the source of the semen, injury, or other physical evidence.

o Evidence of other sexual acts between the victim and the accused may be used to prove either that the victim consented to the sexual conduct in question or that the accused honestly, but mistakenly, believed the victim did consent.

o Evidence may be presented if its exclusion would violate the constitutional rights of the defendant.


State of Mind of Homicide Victim Where Defendant Claims Self-

Defense or Accidento When the defendant has been

charged with murder and the defense contends that the killing was an accident or was in self-defense, the prosecution may present evidence that may reflect the state of mind of the deceased.

o Statements made by the victim that he or she was afraid of the defendant may be introduced.


Relevancy of Victim’sState of Mind

o The victim’s state of mind is relevant because it is offered to overcome the allegation that the killing was by accident or in self-defense.

o The defendant may offer these statements to substantiate his or her contention of acting in self-defense.


Character of Witnesso Universally, evidence relating to

a witness’s untruthfulness may be used to attack that witness either by cross-examination as to bad acts bearing upon untruthfulness, or by introduction of evidence of conviction of a serious crime or one involving dishonesty.


Attacking the Witness’s Character

o The side opposing the witness must attack the truthfulness of a witness either through opinion or reputation evidence before rebuttal evidence of the witness’s truthfulness can be introduced.

o Specific instances of conduct relating directly to the witness’s truthfulness or felony convictions may be asked about on cross-examination.


The Accused as Witnesso Although constitutionally the

accused does not have to take the stand in his or her own defense, often the accused chooses to do so.

o The accused is considered a witness, and his or her character for truthfulness also becomes an issue.


Previous Convictionso Previous convictions that involve

dishonesty or false statements are automatically admissible under FRE 609(a)(2).

o FRE 609(a)(2) also provides a time limit on the convictions that may be introduced.

o Any conviction that is more than ten years old is generally not admissible.

criminal evidence 6th edition norman m. garland chapter 11 circumstantial evidence

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