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Criminal Evidence 6th EditionChapter 11 Circumstantial Evidence Criminal Evidence 6th Edition Norman M. Garland
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.” © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Direct Evidence DefinedDirect evidence is the testimony of a person who asserts or claims to have actual knowledge of a fact, such as an eyewitness. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Circumstantial Evidence DefinedCircumstantial 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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
But, what is it? Circumstantial evidence is an indirect approach to proving the facts in dispute. Federal law defines it as “proof of a chain of facts and circumstances indicating the existence of a fact.” 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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Why use circumstantial evidence?Circumstantial evidence can be as convincing in proving guilt as direct evidence, and often may be even more reliable. Law enforcement officers need to guard against being too skeptical of circumstantial evidence. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Science and Circumstantial EvidenceMost of the scientific evidence presented by forensic experts is nothing more than circumstantial evidence; yet its reliability can be very satisfactory and convincing. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Relevancy of Circumstantial EvidenceWhether direct or circumstantial evidence is to be introduced, the rules of admissibility are the same. First, the evidence must meet the requirement of relevance—it must tend to prove or disprove a pertinent fact. Second, the evidence must be presented through a witness who has personal knowledge about the subject of their testimony. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The FRE Weighs In 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.” © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Motion in Limine To keep testimony or tangible evidence out of court, either side may object to the evidence. 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. The name for a motion to exclude or admit evidence is a motion in limine. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Again, the Balancing TestFRE 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.” © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Circumstantial Evidence and the Modus OperandiOne 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. 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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Admissibility of Other Crimes, Acts, or WrongsRevealing 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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Prior Acts: Admissible?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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Character Evidence and the FREFederal 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.” © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
When Character Evidence is AdmissibleEvidence 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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The FRE and the Admissibility of Prior Bad (Criminal) ActsPrior 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.” © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Other Crimes to Prove Motive or IntentOther 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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Motive Black’s Law Dictionary defines motive as a “Something, esp. willful desire, that leads one to act.” --Black’s Law Dictionary (8th ed. 2004). Motive is that which moves a person to act, or explains the reason why a person acted. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Use of Motive 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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Showing of Intent Intent, is a state of mind; it expresses mental action that is usually coupled with an outward physical act to cause a particular result. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Two Components of a CrimeThe mental state, or mens rea The physical action, or actus reus © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Critical Importance of IntentIntent is a necessary element of most crimes, even though only a general intent to take the physical action is required. Being a state of mind, intent is not easily proved, and can only be proved by circumstantial evidence. 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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Evidence of Other Crimes to Prove Plan (or Design)Evidence of the commission of acts similar to the alleged crime committed may be admissible to show plan or design. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Prior Acts as Common Plan or Design?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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Doctrine of ChancesThe use of evidence of other similar occurrences to show that the charged crime is not an isolated event due to chance. If the same situation happens time and time again, then these “accidents” can no longer be considered coincidental. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Usage of the Doctrine of Chances to RefuteThe 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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Using Other Crimes or Misconduct to Prove IdentityDuring 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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Similar Crimes and IdentityIdentity is particularly provable by evidence the accused committed another similar crime. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Means or Capability to Commit a CrimeCircumstantial 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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Consciousness of GuiltFrequently, a person who has committed a crime will not deviate from his or her usual pattern of conduct. When this occurs, proof of uncustomary acts, statements, or appearance may be introduced to infer consciousness of guilt. It has been held that any act from which the inference of consciousness of guilt can be drawn is admissible. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Evidence of Guilt: Observable BehaviorFleeing from the scene. Highly emotional immediately after a murder. Attempted to evade and escape arrest. Denied his identity or used a fake name. Failure to appear for trial. Attempt to conceal evidence. Refusal to participate in a lineup. Attempt to bribe witnesses. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Character of the DefendantIf 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. The reputation of the defendant may, therefore, be pertinent to the issue. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Universal Rule—FRE 404(a) Prohibits Proof of Character at TrialThe prosecution is not permitted to introduce evidence that the defendant is a person of bad character to prove guilt. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Prohibition of Proof of Character Two ReasonsFirst, 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. 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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Proving Good Character of the DefendantThe 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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Differences: Character, Opinion, and ReputationCharacter, in general, is a description of a person's attributes, traits, or abilities. 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. Reputation is the consensus of what other people in the community say about the accused’s character. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Prosecution’s Proof of Defendant’s Bad CharacterThe 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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
How to Impeach a WitnessDevalue the character witness’s testimony by asking the witness about specific acts of misconduct engaged in by the defendant. 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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Prosecutorial ParametersAll that the courts require of the prosecution is a good faith basis in fact that the accused committed the misdeed. 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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Amount of Proof to Show Good or Bad CharacterNo set number of witnesses is needed to prove either good or bad character. The trial judge will usually allow a reasonable number of witnesses on both sides so that the jury may make some determination. The judge will limit the number after a certain point; otherwise, the presentation of character witnesses could go on indefinitely. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Proof of Prior Sexual MisconductFRE413 specifically allows the prosecution in sexual assault cases to introduce evidence regarding other uncharged sexual misconduct by the accused. 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. FRE 415 makes such evidence also admissible in civil damages cases brought by the victims of either sexual assault or child molestation. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Character of Victims Homicide Victim Self-Defense ClaimsVictims in Sex Offense Cases © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Homicide Victim When one person kills another, the character of the deceased victim is generally unimportant. The crime of murder still stands whether the deceased victim was good or bad. In these circumstances, the law does not require that the prosecution present any evidence concerning the character of the deceased. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
FRE and Character of the VictimFRE 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.” 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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Self-Defense Claims Self-defense may be based on one of two theories: fear and first aggressor. 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. 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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
FRE and Self-Defense ClaimsFRE 405 allows the defense to introduce instances of the victim’s violent conduct to prove that the victim was the first aggressor. Conduct evidence is limited to cases where character is an essential element of a charge or defense. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Victims in Sex Offense CasesHistorically, 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. FRE 404(a)(2) permitted the defense to put the victim on trial. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Rape Shield Laws 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. Such evidence is inadmissible because of its substantial prejudicial effect upon the victim and society’s interest in law enforcement. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Exceptions to the Rape Shield LawEvidence 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. 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. Evidence may be presented if its exclusion would violate the constitutional rights of the defendant. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
State of Mind of Homicide Victim Where Defendant Claims Self-Defense or AccidentWhen 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. Statements made by the victim that he or she was afraid of the defendant may be introduced. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Relevancy of Victim’s State of MindThe 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. The defendant may offer these statements to substantiate his or her contention of acting in self-defense. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Character of Witness 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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Attacking the Witness’s CharacterThe 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. Specific instances of conduct relating directly to the witness’s truthfulness or felony convictions may be asked about on cross-examination. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Accused as Witness Although constitutionally the accused does not have to take the stand in his or her own defense, often the accused chooses to do so. The accused is considered a witness, and his or her character for truthfulness also becomes an issue. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Previous Convictions Previous convictions that involve dishonesty or false statements are automatically admissible under FRE 609(a)(2). FRE 609(a)(2) also provides a time limit on the convictions that may be introduced. Any conviction that is more than ten years old is generally not admissible. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.
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