This is Part II of my examination of shibboleths in the Pennsylvania Standard Criminal Jury Instructions.

Part I: The Mendacity of Mathematical Certainty, is here.

What is the difference between direct and circumstantial evidence?  This is a trick question– there really is no difference at all.  Well,  more precisely, there is no difference that actually matters in a criminal trial.  

Pennsylvania standard criminal jury instruction 7.02A describes the alleged distinction between direct and circumstantial evidence.  Judges and lawyers often use a version of the following example to explain the difference:

Before you go to sleep at night, you look out your window and everything appears as usual.  When you wake up the next morning, you see a blanket of snow on the ground.  You see snow on your neighbor’s roof, in the trees, and on the cars parked in the street.  This is circumstantial evidence that it snowed last night after you went to bed because you did not personally see the snow falling.  From the fact that there is snow on the ground now, you can infer the fact that it snowed sometime after you went to sleep the previous night.  On the other hand, if you were walking home last night while it was snowing, and you saw and felt the snow, that is direct evidence that it snowed.  

This example is wrong.  

If you wake up in the morning and see a fresh blanket of snow that was not there the previous night when you went to sleep, this is direct evidence that it snowed last night.  You do not need to have personally witnessed the snow falling for the evidence to be direct evidence.  In fact, not a single human being needs to have seen it snow.  Rather, the fact that there is a blanket of snow on the ground that was not there the previous night directly proves the fact that it snowed. No other evidence is needed for you to reach that conclusion.

Compare this example to the one used by the 3rd Circuit Court of Appeals in its model jury instruction 1.09:

If a witness testified that she had been outside and saw that it was raining, that testimony would be direct evidence that it was raining. On the other hand, if a witness testified that she saw someone walk in from outside wearing a wet raincoat and carrying a wet umbrella, that testimony would be circumstantial evidence that it was raining, from which you could infer that it was raining. You would not have to find that it was raining, but you could. 

This example is better, but not great.  You could argue that even this example describes direct evidence rather than circumstantial evidence. Think about it— if a person walks in from outside wearing a wet raincoat and carrying a wet umbrella, what additional evidence do you need to connect these facts to the conclusion that it is raining outside?  Remember that the distinction between direct and circumstantial evidence is not concerned with the weight, quality, amount, or authenticity of the evidence.  So, while you might conclude that the facts presented in the example above are not sufficient to convince you that it is raining outside, the facts nonetheless directly point to that conclusion.

For some reason, the legal system has convinced itself that direct evidence is the same thing as eyewitness evidence or evidence derived from a witness’s personal knowledge or experience. The Pennsylvania jury instruction provides the following definition of direct evidence: 

“testimony by a witness from his or her own personal knowledge, such as something that he or she saw or heard himself or herself.”  

Nope.  That is the definition of an eyewitness or lay witness, not direct evidence.  The 3rd Circuit instruction provides a better definition: 

“Direct evidence is simply evidence which, if believed, directly proves a fact,” 

This is the correct definition even though it is a tautology.  The 3rd Circuit instruction then provides the following example:

An example of "direct evidence" occurs when a witness testifies about something the witness knows from his or her own senses - something the witness has seen, touched, heard, or smelled. 

 Again, this is wrong.  This example describes an eyewitness or a lay witness. Eyewitness testimony could be direct or circumstantial evidence depending on the fact that it is offered to prove.

Let’s consider an actual example of circumstantial evidence:

You look out your window early in the morning at your neighbor’s house across the street.  There’s a fresh blanket of snow on the ground.  Your neighbor’s car is parked in the driveway and it is covered in snow.  There are no tire tracks in the snow leading to or from the driveway to the road. There are no footsteps in the snow leading to or from the house.  The lights are on in your neighbor’s house, and there’s smoke coming from his chimney.  

This is circumstantial evidence that your neighbor is home. None of the facts presented in the above example directly prove that your neighbor is home, but if you want to, you can infer that your neighbor is home.  What does that mean?  It means that if you choose to, you can proceed with your life under the assumption that your neighbor is home.  In this particular example, it probably makes no difference to you whether your neighbor is home or not.  In other words, this is not a matter of great importance for you, so the amount and quality of evidence that you need before acting is not very high. If you were counting on your neighbor to give you a ride this snowy morning to the place where you are scheduled to take your LSAT exam, then this circumstantial evidence might not be good enough, and you might need some more evidence to quell your anxiety.  

A second problem with the distinction between direct and circumstantial evidence is that whether evidence is direct or circumstantial depends on the question being asked, and the purpose for which the evidence is offered.  I have already alluded to this a little bit in the previous examples, but let’s go into more detail. 

Suppose a body is discovered in the street with a gunshot wound to the head.  This is direct evidence that the victim was shot in the head.  No witness needs to have personally observed the gunshot, but the fact that there is a gunshot wound in the head directly proves that the person was shot in the head.  The gunshot wound might also be direct and circumstantial evidence of the cause (gunshot wound) and manner (homicide) of death.  However, the gunshot wound, in itself, can never be anything but circumstantial evidence of the identity of the shooter, or the shooter’s state of mind at the moment he pulled the trigger.  Thus, one piece of evidence can be both direct, direct and circumstantial, or solely circumstantial evidence depending on what fact the evidence is offered to prove.  

A third problem with the distinction between direct and circumstantial evidence is the increasing reliance on what I’ll refer to as scientific evidence in criminal trials.  Scientific evidence very often replaces the personal experience of human witnesses.  Is a surveillance video direct or circumstantial evidence? Is a fingerprint or DNA direct or circumstantial evidence?  Is GPS data recovered from a cell phone direct or circumstantial evidence?   Based on the definitions provided by both the Pennsylvania and 3rd Circuit jury instructions, direct evidence is that which is personally experienced by the witness. Is a computer a witness?  When a human being uses a computer program to analyze data, is the witness the human being or the program that tells the computer what to do?

The planet Neptune was the first planet discovered without direct observation.  Astronomers noticed irregularities, or perturbations, in Uranus’s orbit. In other words, Uranus was not always where it was supposed to be.  Astonomers hypothesized that there must be another planet so massive that its gravity affected Uranus’s orbit. Astronomers were able to use mathematical calculations to predict the existence and location of Neptune.  In 1846, based on these predictions, an astronomer was able to observe Neptune with a telescope, but more importantly, he recognized it as the hypothesized planet.  There is evidence that Galileo observed Neptune in the 17th century, over two hundred years earlier, but he did not realize what he was looking at, and therefore he does not get credit for Neptune’s discovery. 

The discovery of Neptune raises some interesting questions.  First, were the perturbations in Uranus’s orbit direct or circumstantial evidence of Neptune’s existence?  Second, when was Neptune’s existence proven to an “absolute certainty”— that is, when was its existence proven such than nobody who understood the evidence could reasonably disagree with its existence?   Was it when astronomers proved to a “mathematical certainty” that Uranus was not where it was supposed to be in the night sky?  Was it when astronomers developed calculations to predict the location of the hypothesized eighth planet— which proved to be accurate?  Or, was it when a human being looked through a telescope at night and saw sunlight reflected from a ball of ice and gas nearly 3 billion miles away? When Galileo observed Neptune, over two hundred years before it was “discovered,” was Neptune’s existence proven to a “moral certainty” or a “mathematical certainty?”  If you asked someone to prove to you that Neptune exists, what would be more convincing to you, seeing its reflected light with your own eyes through a telescope, or looking at a series of mathematical equations on a piece of paper? 

Let’s bring this back within the orbit of criminal law.  It is tempting to conflate the distinction between direct and circumstantial evidence with authenticity, weight, quality, and amount of evidence.  However, direct evidence, as defined by the jury instructions, can be credible or incredible.  This is true for circumstantial evidence also.  In fact, circumstantial evidence can be more credible and weighty than direct evidence.  For example, when an accomplice testifies against his co-defendant in exchange for a benefit from the government, our legal system refers to this as a “corrupt and polluted source” and instructs the jury that it should considered the testimiony with special caution. See PA Standard Criminal Jury Instruction 4.01. 

So, this reveals the real problem with drawing a distinction between direct and circumstantial evidence– the distinction does not matter at all.  Who cares whether evidence is direct or circumstantial?  Most of the time, nobody can really tell if the evidence is direct or circumstantial anyway— as demonstrated by the examples presented in the jury instructions themselves. And, whether a piece of evidence is direct or circumstantial, or both, can change from one question to the next.  A piece of evidence can be direct evidence of one fact, and circumstantial evidence of another fact in the same trial.

All that matters is whether the evidence presented at trial proves the elements of each charged crime beyond a reasonable doubt.  As such, the distinction between direct and circumstantial evidence is a distinction without a difference.  It is the forest for the trees.  Add to this nonsense the distinction between “proof beyond a reasonable doubt” and “proof to a mathematical certainty” and the legal system has complexified  something that should be very simple:  

The evidence presented at this trial must prove that the defendant is guilty beyond any and all reasonable doubt. The word reasonable simply means real, not imagined or contrary to human experience. A reasonable doubt is a doubt that would cause a reasonably careful and sensible person to pause or  hesitate before acting upon a matter of great importance in his or her own affairs. A reasonable doubt can arise from the evidence presented as well as from the lack of evidence presented.   

This means that before you can find the defendant guilty of any of the crimes charged, you, the jury, must be certain that he is guilty of every element of the crime to the highest degree of certainty that one can have when dealing with the affairs of human beings.  In other words, you can only find the defendant guilty if there is no reasonable conclusion other than his guilt.