How often to you hear someone say a case is weak because “it’s only circumstantial.”

Or, there’s “It’s just a he said/she said; there’s no evidence to prove it.”

Stop right there. STOP! If you want to understand how wrong these statements are, consider this: If you discard all witness testimony, AND all circumstantial evidence, you are basically discarding all evidence, because eyewitness testimony and circumstantial evidence are pretty much all the evidence that matters in any court case.

This all came to mind last week in the dramatic hearings over the Kavanaugh nomination to the Supreme Court, with Christine Ford testifying that Judge Kavanaugh tried to rape her when they were both teenagers. I heard a lot of misuse of terms of evidence in those hearings, and in the remarks by television experts and commentators. The most common one was that this was simply a “he said/she said” and therefore there was “no evidence” that the incident occurred.

But, Professor Ford’s testimony that the event occurred is direct evidence that it happened. Correspondingly, Justice Kavanaugh’s evidence that it did not occur is direct evidence that the event did not happen.

Direct Evidence

Just because a case is circumstantial doesn’t mean it’s weak. Some of the strongest cases of all are “purely circumstantial.” If a hundred monks swear they watched the beach all night and no sea turtle laid her eggs there, BUT, there is time/date/location stamped photo of a hole with sea turtle eggs in it and sea turtle tracks going from and back into the surf, what conclusion would you draw?

A case based solely on the testimony of a witness or witnesses is not necessarily weak either. If he said it, or she said it, there IS evidence of what each of them said. Why? Because, Grasshopper, the testimony of people as witnesses is evidence. You might say neither of them has evidence to back it up, but you can’t say their testimony is no evidence. Even a proven liar’s testimony is evidence – direct evidence — the testimony of a witness that an event occurred and the witness observed it.

Direct evidence is eyewitness testimony. The witness is describing something he or she experienced as it occurred, using his or her senses of sight, sound, smell, touch, taste, or emotional feeling. “I saw Dick shoot Jane.”  “I smelled gas.”  “I saw the sea tortoise come out of the ocean, dig a hole, lay her eggs, and walk back into the ocean.”

Q: “Did you see the wreck?”
A: “Yes, I saw the wreck.”
Q: “Describe it please.”
A: “I saw a black car go through a red light and hit the red car.”

That is direct evidence. What does it prove? Even without a photograph, a diagram, or any other witness testimony, it is evidence that the black car blew the light and hit the red car, causing a wreck. The driver of the black car was negligent.

Is this conclusive? No. The driver of the black car will say the light was green. Another witness may say the light was yellow and turned red. Another witness may say they heard a loud crash, immediately turned to look, and saw that the black car had a red light right after the collision. The collision damage and skid marks may suggest that the red car hit the black car.

The first witness’s evidence is not conclusive, but it IS evidence. It is direct, eyewitness evidence of what the witness testified to.

So, direct evidence is somebody saying they saw something; or heard something; or tasted something; or felt something; or smelled something. Direct evidence is testimony of what a witness experienced at the time the particular event occurred.  If believed, direct evidence alone, “she said”, may be sufficient.

Circumstantial Evidence

Circumstantial evidence may be documents, photographs, recordings, or physical objects. Circumstantial evidence is evidence from which a jury can infer a fact from another fact. Powder residue on a person’s hand is circumstantial evidence that the person fired a handgun. Photographs of collision damage are circumstantial evidence of the violence of a wreck. If an airplane takes off with a pilot and passenger, but lands with only the pilot, you might infer that the passenger fell – or was pushed – out of the plane.

In State v. Gary Lee Rawlings, Ms. Rawlings disappeared. Her body was never found. Her husband had bought a gun in a parking lot in Oklahoma City from a man who advertised it for sale. Rawlings rented a plane. When Rawlings stopped in Houston to re-fuel his plane, the fuel jockey noticed a large cloth object behind the pilot’s seat. When Rawlings bought the gun, he had a discussion with the seller about a tv murder mystery they’d both seen, and asked questions about how to conceal a murder.

Rawlings was convicted of first degree murder. Everything about the case except the testimony about the gun sale, and the guy in Houston seeing the cloth bag, was circumstantial. It was even circumstantial whether Ms. Rawlings was dead.  True, she disappeared and her husband had a motive (a custody battle), but there was no body to directly prove she was dead. You could infer it from other facts, and if you drew that conclusion you could also infer that Mr. Rawlings had done it.  So, despite the fact the case was “purely circumstantial” perhaps you can see how, if you were a jury, you might have convicted Gary Lee of murdering his wife with malice aforethought.

Once I show you the circumstantial evidence below, I will rest my case.

circumstantial evidence 2

Demonstrative Evidence

Demonstrative evidence is generally not sent back to the jury room, and is not usually admitted in evidence, but is seen or heard by the jury. It’s a way of illustrating a point in order to help understand it.

For instance, I often use demonstrative medical illustrations or anatomical models in a doctor’s testimony. When the doctor testifies that his patient had a “herniated lumbar disc which indented the thecal sac and impinged the L5-S1 left lateral foramen” I’ll hand him a model or illustration of the spine, and have him show the jury what he means and explain the anatomy. The model or illustration is not admitted to evidence, but has been used to explain to the jury what the medical testimony means.

In a toxic injury case (chemical poisoning from an aerosolized chemical leak) an expert used a Coke can to demonstrate concentration and diffusion of aerosolized chemicals across the countryside. He placed the can on our counsel table, cracked the pop top, and told the jury that if the can were filled with the chemicals that injured my client that little can would have already spread dangerous levels of the chemical throughout the entire federal courthouse. The can was not offered in evidence, but it made its point.

Words have meaning

I think a certain degree of precision of thought, reasoning, and terminology is critical to good lawyering. The rules of evidence in state and federal court are designed to keep out unfair, unreliable, and irrelevant evidence; and to let in evidence which is reliable, pertinent to the case, and fair to the parties. Those rules are complex and technical, and they really do not mean what lay people sometimes think they mean. They absolutely do not get used in court the way they have been misused in our common folk lexicon.

Think about it this way. If you tell me George knocked you off your bike and stole it, and I believe and trust you, you have proven it to me. That was direct evidence with no corroboration.

If you tell me your bike is missing, and that the only person who needed a bike and had access to your yard was George, you have proven to me circumstantially that George took your bike.

And, if you tell me George took your bike, and I see George riding your bike, I’m gonna go get my sister Nancy (who’s tough) and tell her to go knock George off your bike and give it back to you.

Since I’m a lawyer, I may charge a small fee for that.

If I can help you with a legal problem, email me at ghaubrich3323@gmail.com. Looking forward to hearing from you. Yours, Greg