Chapter 11
Circumstantial Evidence
Criminal Evidence
6th Edition
Norman M. Garland
Direct Evidence Versus Circumstantial
Evidence: A Majority View
As 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.”
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Direct Evidence Versus Circumstantial
Evidence: A Minority View
In 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.
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Direct Evidence Defined
o Direct evidence is the testimony of a
person who asserts or claims to have
actual knowledge of a fact, such as an
eyewitness.
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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.
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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.
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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.
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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.
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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.
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The FRE Weighs In
o 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.”
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Motion in Limine
o 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.
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Again, the Balancing Test
o 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.”
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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.
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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.
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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.
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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.”
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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.
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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.”
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Other Crimes to
Prove 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.
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Motive
o 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.
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The Use of Motive
o 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.
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The Showing of Intent
o Intent, is a state of mind; it expresses
mental action that is usually coupled
with an outward physical act to cause
a particular result.
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The Two Components of a
Crime
o The mental state, or mens rea
o The physical action, or actus reus
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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.
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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.
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Prior Acts as
Common 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.
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The Doctrine of Chances
o 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.
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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.
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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.
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Similar Crimes and Identity
o Identity is particularly provable by
evidence the accused committed
another similar crime.
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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.
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Consciousness of Guilt
o 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.
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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.
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Character of the Defendant
o 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.
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The Universal Rule—FRE 404(a)
Prohibits Proof of Character at Trial
o The prosecution is not permitted to
introduce evidence that the defendant
is a person of bad character to prove
guilt.
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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.
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Proving Good Character
of 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.
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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.
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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.
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How to Impeach a Witness
o 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.
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Prosecutorial Parameters
o 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.
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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.
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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.
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Character of Victims
o Homicide Victim
o Self-Defense Claims
o Victims in Sex Offense Cases
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The Homicide Victim
o 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.
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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.
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Self-Defense Claims
Self-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.
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FRE and Self-Defense Claims
o 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.
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Victims in Sex Offense Cases
o 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.
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Rape Shield Laws
o 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.
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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.
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State of Mind of Homicide Victim
Where Defendant Claims SelfDefense or Accident
o 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.
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Relevancy of Victim’s
State 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.
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Character of Witness
o Universally, evidence relating to a
witness’s untruthfulness may be used to
attack that witness either by crossexamination as to bad acts bearing
upon untruthfulness, or by introduction
of evidence of conviction of a serious
crime or one involving dishonesty.
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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.
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The Accused as Witness
o 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.
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Previous Convictions
o 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.
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