Chapter 4
DIRECT AND
CIRCUMSTANTIAL
EVIDENCE AND
THE USE OF
INFERENCES
©2016 Cengage Learning. All Rights Reserved.
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.
©2016 Cengage Learning. All Rights Reserved.
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.

©2016 Cengage Learning. All Rights Reserved.
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.
©2016 Cengage Learning. All Rights Reserved.
In re
Winship
397 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.
©2016 Cengage Learning. All Rights Reserved.
 The Supreme Court held that
Victor v.
Nebraska
511 U.S. 1
(1994)
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.”
©2016 Cengage Learning. All Rights Reserved.
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.
©2016 Cengage Learning. All Rights Reserved.
Use of Evidence to Prove a Fact
©2016 Cengage Learning. All Rights Reserved.
Commonwealth v.
Lee
626 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.
©2016 Cengage Learning. All Rights Reserved.
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.
©2016 Cengage Learning. All Rights Reserved.
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 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?

 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.
©2016 Cengage Learning. All Rights Reserved.
Means–Opportunity–Motive as
Circumstantial 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.
©2016 Cengage Learning. All Rights Reserved.
“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.
©2016 Cengage Learning. All Rights Reserved.
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.
©2016 Cengage Learning. All Rights Reserved.
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.
©2016 Cengage Learning. All Rights Reserved.
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.

©2016 Cengage Learning. All Rights Reserved.
 States why evidence of prior bad
Thompson
v. United
States
546 A.2d at 419
(D.C. App.
1988)
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.”
©2016 Cengage Learning. All Rights Reserved.
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).
©2016 Cengage Learning. All Rights Reserved.
Some Inferences Should Not Be Drawn
 Impermissible inferences include:
 When a defendant exercises the privilege against selfincrimination (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).
©2016 Cengage Learning. All Rights Reserved.
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.
©2016 Cengage Learning. All Rights Reserved.
Using Direct and Circumstantial Evidence
 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
©2016 Cengage Learning. All Rights Reserved.
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).
©2016 Cengage Learning. All Rights Reserved.
Using Direct and Circumstantial Evidence
 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.
©2016 Cengage Learning. All Rights Reserved.
 The Supreme Court reversed the
United
States v.
Williams
128 S. Ct. 1830
(2008)
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.
Using Direct and Circumstantial Evidence
 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.
©2016 Cengage Learning. All Rights Reserved.
Using Direct and Circumstantial Evidence
 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.
©2016 Cengage Learning. All Rights Reserved.
 Police officers making a random check of
Humphries
v. State
696 S.E.2d
400 (Ga. App.
2010)
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.
©2016 Cengage Learning. All Rights Reserved.
 The defendant was charged with driving
State v.
Fitzgerald
63 So.3d 75
(Fla. App.
2011)
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.
©2016 Cengage Learning. All Rights Reserved.
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.
©2016 Cengage Learning. All Rights Reserved.
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.
©2016 Cengage Learning. All Rights Reserved.
State v.
Barker
945 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.
©2016 Cengage Learning. All Rights Reserved.
 The husband of a missing woman was
Tetso v.
State
45 A.3d 788
(Md. App.
2012), cert
denied 52
A.3d 979
(Md. 2012)
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.


©2016 Cengage Learning. All Rights Reserved.
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.
©2016 Cengage Learning. All Rights Reserved.
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.
©2016 Cengage Learning. All Rights Reserved.
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.
©2016 Cengage Learning. All Rights Reserved.
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.