Prepared by Rachel Singer of John Jay College CUNY

DIRECT AND CIRCUMSTANTIAL

EVIDENCE AND THE USE OF INFERENCES

Chapter 4

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 prongs:

Burden of production, which requires the party with the burden on a factual issue to introduce sufficient relevant evidence to prove the fact at issue.

Burden of persuasion, which 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 they must judge the guilt of the defendant according to a high degree of certainty.

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.

The Reasonable Doubt Standard

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.

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Direct Evidence and Circumstantial Evidence

Drawn on the part of the fact finder direct evidence, circumstantial (indirect) evidence or both can be used to prove each and every essential element of a crime. Circumstantial evidence is that which

indirectly proves or disproves a fact in issue and the fact finder must reason or 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.

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.”

Intent

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

These inferences must flow rationally from the evidence presented in court.

Inferences are conclusions that can be drawn from facts in evidence.

Circumstantial Evidence

In some cases, circumstantial evidence alone can be used. Holland v. U.S., “That circumstantial evidence is

… no different from testimonial evidence.”

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

In a few crimes, such as treason, prosecutors use direct evidence in proving the offenses.

Means-Opportunity as Circumstantial 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?

Evidence that a person satisfied one or all of these circumstances could make the person a suspect, justifying further investigation.

Evidence tending to establish motive can take a variety of forms.

DNA, Fingerprints and Shoeprints as Circumstantial Evidence 2222

Inferences can be drawn from the presence of DNA, fingerprints and shoeprints at a crime scene, making them circumstantial evidence.

The presence of fingerprints at a crime scene may be insufficient by itself to support a guilty finding. Evidence must be presented, by the prosecution,

that reasonably excludes the hypothesis that the fingerprint was impressed at a time other than when the crime was being committed.

Circumstantial evidence may produce inferences that need only to be reasonable, not necessary or inescapable.

“Modus Operandi” as Evidence and Investigative Tool 222222

Modus Operandi (“MO”) is commonly used as an investigative tool to link crimes to suspects.

In criminal prosecutions, evidence, such as evidence of other crimes with a common pattern, permits the jury to draw inferences of guilt where the other crimes can be tied to the defendant.

Under FRE 404(b) prosecutors are permitted to use evidence of past crimes to prove modus operandi only if the other crimes share a particular or distinctive features with the crime charged.

Inferences Drawn from Other Bad Acts

or Other Convictions

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

In an effort not to be overly prejudice, evidence of prior crimes or other prior bad acts is generally held to be inadmissible. There are, however, exceptions to the rule

forbidding evidence of prior crimes or bad acts (see rules 404(b), 413, & 414 of the federal rules of evidence).

In some circumstances, evidence of past violent acts of the victim may be introduced by the defendant (e.g., People v. Harris, Mich. 1998).

Thompson v. U.S. 546 A.2d 419 (1988)

The Court held introducing other prior bad acts or convictions into the trial may become overly prejudicial because the jury will convict based on the prior criminal behavior and not because they are guilty of the offense charged.

Those prior bad acts or convictions are generally not admissible but exceptions to the rules of evidence allow such evidence to come in to prove motive, opportunity, intent, identity or absence of mistake or accident.

Where No Inferences Should Be Drawn

When a defendant or suspect asserts the Fifth Amendment privilege against self-incrimination, an inference of guilt should not be drawn by the fact finder.

In some states, prosecutors may not use or comment that a defendant remained silent after arrest, whether or not Miranda warnings were read to the defendant. State v. Mainaaupo (2008).

Additional Examples

Information about the victim or the victim’s conduct may protected by the rape shield law.

The cessation of signature crimes after the arrest of a suspect

Where a suspect requests to contact a lawyer when in police custody.

United States v. Roche916 F.2d 219 (5th Cir. 1990)

The Court of Appeals held the Fifth Amendment prohibits a trial judge, a prosecutor or a witness from commenting upon a defendant’s failure to testify in a criminal trial.

The prosecution is also prohibited from using the fact the defendant did not make a statement after they were read Miranda warnings while in custody.

Using Direct and Circumstantial Evidence in Criminal Cases

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

may have seen or smelled 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/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.

Using Direct and Circumstantial Evidence in Criminal Cases

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.

When the victim is a child, sexual intercourse or abuse can be proved even if no physical force (forcible compulsion) was used based on the theory of “lack of consent”.

Using Direct and Circumstantial Evidence in Criminal Cases

U.S 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.

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

Corpus delicti may be proven by a combination of direct and circumstantial evidence or by either alone.

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.

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. 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.

Proving Corpus Delicti by Direct or Circumstantial Evidence 2122

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

The general rule is 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.

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/finding of guilt beyond a reasonable doubt.

Both 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.

An inference is a conclusion 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 a sexual assault case, evidence collected from

the rape kit might provide important reinforcement of the victim’s testimony.

Tangible evidence is physical evidence as such the murder weapon or pictures.

Res Ipsa Loquitur as an Inference

The doctrine, res ipsa loquitur (“the thing speaks for itself”).

The concept is used in both 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.