WHAT’S THE BEST KIND OF EVIDENCE.

In the episode discussing the California murder trial of Scott Peterson, we took some time to note the difference between direct and circumstantial evidence.  If you are not a practicing lawyer, the distinction between the two, and the implications that each have on the truth of a given situation, are likely not something you have spent a lot of time considering.

Let’s first start with a definition of the two types of evidence.  Direct evidence is first-hand accounts of the circumstances in question.  The most commonly associated example is eyewitness accounts of something that happened.  The same concept applies to witnesses who testify about hearing something (i.e. a gunshot, an argument, a scream, etc.).  Direct evidence is an assertion based on knowledge that the provider of evidence has directly, that is, not based on some other knowledge.

This does not need to be spoken testimony.  A bank statement, for example, can be direct evidence of a monetary transfer or of an account balance at a certain time.

Circumstantial evidence, on the other hand, is an assertion that something is so based on circumstantial, or indirect, knowledge.  It is certainty, or at least a strong suspicion, of a fact based on inferences given by other facts which support that conclusion.  Sometimes, the inference is strong enough that doubting the asserted fact is unreasonable.  Other times, the asserted fact is one possibly feasible explanation.

In the episode, I gave examples of evidence relating to rainy weather.  In the first example, our witness testified that she came in from outside, where she had been rained on.  This is direct evidence, our witness has direct knowledge of the weather and can testify from firsthand experience whether it was rainy or sunny outside.

In the second example, our witness testified not that she was outside directly, but that she observed someone else come in from outside, and that that person was dripping wet, was wearing a raincoat and boots and was carrying an umbrella.  Based on the facts presented, even though the witness was not outside herself, she was able to draw a reasonable inference that it was rainy based on the situation presented to her by the person who had just walked inside.

I have found that when I speak to people, most will simply assume that direct evidence is stronger and should therefore be given more weight.  This common view is understandable.  Our notions of common sense would seem to suggest that if someone has actual knowledge of something, that is inherently more credible than someone justifying their belief on some extraneous facts.  But that winds up being a very dangerous assumption to make in the context of our legal system.

Any discussion on the merits of relying on direct vs. circumstantial evidence, especially when they are in conflict, has to begin with the understanding that each consideration has to be taken on a case by case basis.  When it comes to evidence, there are very few general rules which should be followed.  Each piece of evidence should be critically examined both on its own and in the great context of the other evidence presented in a case.  If one goes into those considerations with preconceived notions that one type of evidence is presumptively more credible, it can skew an outcome and lead to unjust results.

I can think of no better example than part of the courtroom scenes from My Cousin Vinny.  For those of you who haven’t seen the movie, Ralph Macchio and Mitchell Witfield are two New Yorkers driving through Alabama.  They stop at a convenience store and buy some snacks.  Shortly thereafter, the clerk at the convenience store is murdered and Macchio and Whitfield are arrested and charged with murder.  Joe Pesci, aka Cousin Vinny, is a newly minted lawyer who arrives to represent the boys in their murder trial.  During the trial, the prosecutor puts on Pauline Myers, a little old lady who says she saw the two defendants entering the convenience store at the time of the murder.  But as Pesci cross-examines her, it becomes clear that her eyesight is not nearly as good as she had claimed it was.

On the other hand, when the actual murderers flee the scene, they leave a distinctive tire skid mark on the pavement.  Pesci, aided by his girlfriend Marissa Tomei, was able to show that although the car driven by the actual murderers and the one driven by Macchio were similar, Macchios’ car would have been unable to make that distinctive tire tread.

The direct evidence here, the eyewitness testimony of Myers, was shown to be manifestly unreliable despite the witnesses’ insistence that she had accurately recounted what she had seen.  The circumstantial evidence, used to establish that Macchio could not have been driving the car carrying the murderers, was actually far more reliable in the ultimate consideration of whether Macchio and Whitfield were murderers.

This is obviously a Hollywood generated example, but the underlying principle stands.  In each circumstance, it’s important to consider the circumstances of how the evidence was obtained.

If someone claims they saw something directly, consider the external influences which may have been present: what time of day was it, how far was the witness from the thing they claim to have seen, what was the weather, how were the lighting conditions, were there any obstructions, how is the witness’ eyesight, what level of detail is the witness claiming to have seen, etc.?  The more the jury finds that the person is honestly communicating what they saw/heard/felt/experienced, and admits the limits of their perception, the more likely their testimony will be credited as reliable.

On the other hand, it is far easier to generate examples of circumstantial evidence which do not necessarily create certainty about the conclusions offered by a lawyer.  A person whose only alibi is a movie ticket is circumstantial evidence that the individual was at the movies instead of a crime scene.  But it is also easy to conclude that the movie was never attended and that the ticket is merely evidence of the purchase of a ticket and not of a person’s geographical location at any given time.

I will conclude with this final thought.  Evidence offered at a trial is rarely presented in a vacuum.  Often, each side will present foundational evidence to support the conclusions they want the jury to draw.  They will then offer other evidence to corroborate their evidence and then additional items to contradict the evidence offered by their opponent.  Frequently, juries make credibility determinations about evidence based on the totality of what has been presented to them.  Certain items which may seem credible on their own may wind up being rejected based on the strength of other evidence which contradicts it.  Sometimes direct evidence will be more compelling, other times circumstantial evidence will.  Neither is fundamentally more deserving of belief and both can be persuasive when used effectively.

By: Paul Townsend