As published in The Chicago Daily Law Bulletin
Everybody knows that circumstantial evidence is not as good as direct evidence. I think we all learned that in law school.
And all of us have heard people declaring many times on TV or in the news, "Their case is ridiculous. It's purely circumstantial." Clearly, if there were any direct evidence, there would be no need to resort to weaker, less probative circumstantial evidence. The very word, circumstantial connotes a circuitous, evasive, round-about way of trying to show something. Something that can't be proven directly with real facts.
Everybody knows that circumstantial evidence is not as good as direct evidence. I think we all learned that in law school.
And all of us have heard people declaring many times on TV or in the news, "Their case is ridiculous. It's purely circumstantial." Clearly, if there were any direct evidence, there would be no need to resort to weaker, less probative circumstantial evidence. The very word, circumstantial connotes a circuitous, evasive, round-about way of trying to show something. Something that can't be proven directly with real facts.
However, the law disagrees. Illinois Pattern Instruction 3.04 says, "Circumstantial evidence is entitled to the same consideration as any other type of evidence." We don't tell the jury that circumstantial evidence is weaker. In fact, we don't have to tell the jury anything at all about circumstantial evidence or need to tell them there are different kinds of evidence. So, why do we give a jury this instruction?
The first question is, what is direct evidence? Let's look at a few examples. Which of these are direct evidence:
This is sort of a fun law school game because you could make a perfectly valid argument that any or all of the above could be either direct or circumstantial. (“Did you see the bullet leave the gun? No, you just saw someone pointing a gun, smoke, sound, and the victim falling--all circumstantial.")
Probably most of what we “know” is circumstantial. No one has ever seen wind. We see objects moving which circumstantially tells us there is wind.
In fact, there is plenty of reason to think that so-called direct evidence is weker evidence.
For example, direct evidence is the scourge of the criminal justice system. It's because of direct evidence that we have so many death row inmates freed and declared innocent after faulty witness identification. Witnesses swore that they definitely and directly saw the accused commit the crime. Years later, other circumstances like DNA tell us that these observations were flawed. What they thought they saw directly, and actually saw, was dead wrong.
Direct evidence is unreliable because people are unreliable. Our senses are imperfect. Our memories are imperfect. We all have biases. We all want to believe things.
Direct evidence turns out to be very, very vulnerable. We just do not see what we think we see.
Seeing is believing. But believing doesn't make it right.
Thank goodness for the vulnerability of direct evidence! If direct evidence were really as accurate as people believe, we would miss so much! There would be no magic shows because the audience would see that the tiger didn't really disappear. The lady wasn't floating. The card was still in his hand. There would be no TV or movies, all technically based on the illusion of moving pictures, and which all have great special (meaning, "fake") effects that are so convincing enough we accept them as real.
If you want reality, circumstantial evidence is often much more reliable. Monty Mackey gave a closing that reminded me of a great example from Robinson Crusoe, believed to be the first book of fiction. After being completely alone on a desert island for many years, Crusoe wakes up one morning to see human footprints on the beach. He concludes a person was there. He's right, of course, even without any direct evidence at all.
Circumstantial evidence is scientific. Scientists deduce things because of other things. We all do. No matter what your son says, the cookie crumbs leading from the jar to your his bed and the sticky cookie dough on his mouth is pretty reliable evidence, circumstantially, that he ate some of the cookies.
But at the end of the day, it just doesn't matter whether any specific piece of evidence is considered direct or circumstantial. Probably all evidence has components of both.
The next time you hear a lawyer on TV say his opponent's case is purely circumstantial, make a big mental note. He didn't say it was false.
And if you ever argue that circumstantial evidence is lesser evidence, the judge is going to tell the jury you're wrong.
The first question is, what is direct evidence? Let's look at a few examples. Which of these are direct evidence:
- DNA
- Fingerprints
- Fabric samples
- Footprints
- Cell phone records
- GPS
- Possession of the murder weapon
- Motive
- Cover up
- Alibi
- Seeing someone "that height" leave the scene
- Seeing someone shoot the victim
This is sort of a fun law school game because you could make a perfectly valid argument that any or all of the above could be either direct or circumstantial. (“Did you see the bullet leave the gun? No, you just saw someone pointing a gun, smoke, sound, and the victim falling--all circumstantial.")
Probably most of what we “know” is circumstantial. No one has ever seen wind. We see objects moving which circumstantially tells us there is wind.
In fact, there is plenty of reason to think that so-called direct evidence is weker evidence.
For example, direct evidence is the scourge of the criminal justice system. It's because of direct evidence that we have so many death row inmates freed and declared innocent after faulty witness identification. Witnesses swore that they definitely and directly saw the accused commit the crime. Years later, other circumstances like DNA tell us that these observations were flawed. What they thought they saw directly, and actually saw, was dead wrong.
Direct evidence is unreliable because people are unreliable. Our senses are imperfect. Our memories are imperfect. We all have biases. We all want to believe things.
Direct evidence turns out to be very, very vulnerable. We just do not see what we think we see.
Seeing is believing. But believing doesn't make it right.
Thank goodness for the vulnerability of direct evidence! If direct evidence were really as accurate as people believe, we would miss so much! There would be no magic shows because the audience would see that the tiger didn't really disappear. The lady wasn't floating. The card was still in his hand. There would be no TV or movies, all technically based on the illusion of moving pictures, and which all have great special (meaning, "fake") effects that are so convincing enough we accept them as real.
If you want reality, circumstantial evidence is often much more reliable. Monty Mackey gave a closing that reminded me of a great example from Robinson Crusoe, believed to be the first book of fiction. After being completely alone on a desert island for many years, Crusoe wakes up one morning to see human footprints on the beach. He concludes a person was there. He's right, of course, even without any direct evidence at all.
Circumstantial evidence is scientific. Scientists deduce things because of other things. We all do. No matter what your son says, the cookie crumbs leading from the jar to your his bed and the sticky cookie dough on his mouth is pretty reliable evidence, circumstantially, that he ate some of the cookies.
But at the end of the day, it just doesn't matter whether any specific piece of evidence is considered direct or circumstantial. Probably all evidence has components of both.
The next time you hear a lawyer on TV say his opponent's case is purely circumstantial, make a big mental note. He didn't say it was false.
And if you ever argue that circumstantial evidence is lesser evidence, the judge is going to tell the jury you're wrong.