Transcript Direct and Circumstantial Evidence

Direct and
Circumstantial
Evidence
Direct and Circumstantial
Evidence (cont.)
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Some definitions:
– Evid. Code § 140 – evidence (testimony,
writings, material objects presented to the
senses to prove or disprove)
– Evid. Code § 410 – “direct evidence” means
evidence that directly proves a fact without
inference or presumption, and which in itself, if
true, conclusively establishes that fact.
– Evid. Code § 600(b) – an inference is a
deduction of fact that may be logically and
reasonably drawn from another fact or group of
facts found
Direct and Circumstantial
Evidence (cont.)
CALJIC 2.00 -- Evidence consists of testimony of
witnesses, writings, material objects, or anything
presented to the senses and offered to prove the
existence or non-existence of a fact.
Evidence is either direct or circumstantial.
Direct evidence is evidence that directly proves a
fact. It is evidence which by itself, if found to be
true, establishes that fact.
Direct and Circumstantial
Evidence (cont.)
CALJIC 2.00 -- Circumstantial evidence is
evidence that, if found to be true, proves
a fact from which an inference of the
existence of another fact may be drawn.
An inference is a deduction of fact that
may logically and reasonably be drawn
from another fact or group of facts
established by the evidence.
Direct and Circumstantial
Evidence (cont.)
CALJIC 2.00 -It is not necessary that facts be proved by direct
evidence. They may be proved also by
circumstantial evidence or by a combination of
direct and circumstantial evidence. Both direct
and circumstantial evidence are acceptable as a
means of proof. Neither is entitled to any
greater weight than the other.
Direct and Circumstantial
Evidence (cont.)
CALCRIM 223. Direct and Circumstantial
Evidence Defined
Facts may be proved by direct or
circumstantial evidence or by a
combination of both. Direct evidence can
prove a fact by itself. For example, if a
witness testifies he saw it raining outside
before he came into the courthouse, that
testimony is direct evidence that it was
raining.
Direct and Circumstantial
Evidence (cont.)
CALCRIM 223. Direct and Circumstantial Evidence
Defined
Circumstantial evidence also may be called indirect
evidence. Circumstantial evidence does not directly
prove the fact to be decided, but is evidence of
another fact or group of facts from which you may
conclude the truth of the fact in question.
For example, if a witness testifies that he saw
someone come inside wearing a raincoat covered
with drops of water, that testimony is
circumstantial evidence because it may support a
conclusion that it was raining outside.
Direct and Circumstantial
Evidence (cont.)
CALCRIM 223. Direct and Circumstantial Evidence
Defined
Both direct and circumstantial evidence are
acceptable types of evidence to prove or disprove
the elements of a charge, including intent and
mental state and acts necessary to a conviction,
and neither is necessarily more reliable than the
other. Neither is entitled to any greater weight
than the other. You must decide whether a fact in
issue has been proved based on all the evidence.
Direct and Circumstantial
Evidence (cont.)
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Other relevant ideas:
– Evid. Code § 702 – personal knowledge
requirement
– FRE 602 – personal knowledge
requirement
– Evid. Code § 411 – the direct evidence of
one witness, who is entitled to full credit,
is sufficient
Direct and Circumstantial
Evidence (cont.)
CALJIC 2.01 Sufficiency of Circumstantial
Evidence—Generally
However, a finding of guilt as to any crime
may not be based on circumstantial evidence
unless the proved circumstances are not only
(1) consistent with the theory that the
defendant is guilty of the crime, but (2)
cannot be reconciled with any other rational
conclusion.
Direct and Circumstantial
Evidence (cont.)
CALJIC 2.01 Sufficiency of Circumstantial Evidence—
Generally
Further, each fact which is essential to complete a set
of circumstances necessary to establish the
defendant's guilt must be proved beyond a reasonable
doubt. In other words, before an inference essential to
establish guilt may be found to have been proved
beyond a reasonable doubt, each fact or circumstance
on which the inference necessarily rests must be
proved beyond a reasonable doubt.
Direct and Circumstantial
Evidence (cont.)
CALJIC 2.01 Sufficiency of Circumstantial
Evidence—Generally
Also, if the circumstantial evidence [as to any
particular count] permits two reasonable
interpretations, one of which points to the
defendant's guilt and the other to [his] [her]
innocence, you must adopt that
interpretation that points to the defendant's
innocence, and reject that interpretation that
points to [his] [her] guilt.
Direct and Circumstantial
Evidence (cont.)
CALJIC 2.01 Sufficiency of
Circumstantial Evidence—Generally
If, on the other hand, one
interpretation of this evidence appears
to you to be reasonable and the other
interpretation to be unreasonable, you
must accept the reasonable
interpretation and reject the
unreasonable.
Direct and Circumstantial
Evidence (cont.)
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CALCRIM 224 Circumstantial Evidence:
Sufficiency of Evidence
Before you may rely on circumstantial
evidence to conclude that a fact
necessary to find the defendant guilty
has been proved, you must be
convinced that the People have proved
each fact essential to that conclusion
beyond a reasonable doubt.
Direct and Circumstantial
Evidence (cont.)
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CALCRIM 224 Circumstantial Evidence: Sufficiency of
Evidence
Also, before you may rely on circumstantial evidence
to find the defendant guilty, you must be convinced
that the only reasonable conclusion supported by the
circumstantial evidence is that the defendant is guilty.
If you can draw two or more reasonable conclusions
from the circumstantial evidence, and one of those
reasonable conclusions points to innocence and
another to guilt, you must accept the one that points
to innocence. However, when considering
circumstantial evidence, you must accept only
reasonable conclusions and reject any that are
unreasonable.
Direct and Circumstantial
Evidence (cont.)
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CALJIC 2.01 USE NOTE
This or a similar instruction must be given by the court on its
own motion where the case of the people rests substantially
or entirely on circumstantial evidence. (People v. Yrigoyen,
45 Cal.2d 46, 49, 286 P.2d 1, 3 (1955); People v. Bender, 27
Cal.2d 164, 175, 163 P.2d 8, 15 (1945).)
This instruction is unnecessary where the prosecution does
not substantially rely on circumstantial evidence. (People v.
Wiley, 18 Cal.3d 162, 175, 133 Cal.Rptr. 135, 554 P.2d 881,
888 (1976). Accord, People v. Wright, 52 Cal.3d 367, 406,
276 Cal.Rptr. 731, 802 P.2d 221 (1990).)
Where the only circumstantial evidence is an extrajudicial
admission, this instruction is not only unnecessary but may
be misleading and should not be given. (People v. Gould, 54
Cal.2d 621, 630, 7 Cal.Rptr. 273, 277, 354 P.2d 865, 869
(1960).)
Direct and Circumstantial
Evidence (cont.)
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CALJIC 2.01 USE NOTE
CALJIC 2.01 and CALJIC 2.02 should never be given
together. This is because CALJIC 2.01 is inclusive of all
issues, including mental state and/or specific intent,
whereas CALJIC 2.02 is limited to just mental state and/or
specific intent. Therefore, they are alternative instructions. if
the only circumstantial evidence relates to specific intent or
mental state, CALJIC 2.02 should be given. If the
circumstantial evidence relates to other matters, or relates
to other matters as well as specific intent or mental state,
CALJIC 2.01 should be given and not CALJIC 2.02. (See
People v. Honig, 48 Cal.App.4th 289, 340–341, 55
Cal.Rptr.2d 555 (3d Dist.1996); People v. Marshall, 13
Cal.4th 799, 849, 55 Cal.Rptr.2d 347, 919 P.2d 1280
(1996).)
Direct and Circumstantial
Evidence (cont.)
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COMMENT
3 Witkin, California Evidence (4th ed. 2000) Presentation at
Trial, §§ 142–143; 1 Witkin & Epstein, California Criminal
Law (3d ed. 2000) Criminal Trial, § 652.
CALJIC 2.01 should only be given when circumstantial
evidence is “substantially relied upon for proof of guilt.” The
instruction should not be given when the problem of
inferring guilt from a pattern of incriminating circumstances
is not present. (People v. Williams, 162 Cal.App.3d 869, 874,
876, 208 Cal.Rptr. 790, 793, 794 (5th Dist.1984). Accord,
People v. Wright, 52 Cal.3d 367, 406, 276 Cal.Rptr. 731, 802
P.2d 221 (1990).)
Direct and Circumstantial
Evidence (cont.)
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CALCRIM 224 BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on how to
evaluate circumstantial evidence if the prosecution
substantially relies on circumstantial evidence to
establish any element of the case. (People v. Yrigoyen
(1955) 45 Cal.2d 46, 49 [286 P.2d 1] [duty exists
where circumstantial evidence relied on to prove any
element, including intent]; see People v. Bloyd (1987)
43 Cal.3d 333, 351–352 [233 Cal.Rptr. 368, 729 P.2d
802]; People v. Heishman (1988) 45 Cal.3d 147, 167
[246 Cal.Rptr. 673, 753 P.2d 629].)
Direct and Circumstantial
Evidence (cont.)
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CALCRIM 224 BENCH NOTES
Instructional Duty
There is no sua sponte duty to give this instruction when the
circumstantial evidence is incidental to and corroborative of direct
evidence. (People v. Malbrough (1961) 55 Cal.2d 249, 250–251 [10
Cal.Rptr. 632, 359 P.2d 30]; People v. Watson (1956) 46 Cal.2d 818,
831 [299 P.2d 243]; People v. Shea (1995) 39 Cal.App.4th 1257,
1270–1271 [46 Cal.Rptr.2d 388].) This is so even when the
corroborative circumstantial evidence is essential to the
prosecution's case, e.g., when corroboration of an accomplice's
testimony is required under Penal Code section 1111. (People v.
Williams (1984) 162 Cal.App.3d 869, 874 [208 Cal.Rptr. 790].)
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If intent is the only element proved by circumstantial evidence, do
not give this instruction. Give CALCRIM No. 225, Circumstantial
Evidence: Intent or Mental State. (People v. Marshall (1996) 13
Cal.4th 799, 849 [55 Cal.Rptr.2d 347, 919 P.2d 1280].)
Direct and Circumstantial
Evidence (cont.)
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Opinion Evidence
– Lay opinion – e.g. the car was red; it was
late; he was sleepy ….
– Expert opinion – e.g. DNA test results;
psych evaluation; accident reconstruction
Direct and Circumstantial
Evidence (cont.)
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Hearsay
– Musa Hussein statement to Police:
– Heard people yelling “they are putting
him in the trunk”
– Heard gunshots
– Description of 3 men
– Description of actions of 3 men
Direct and Circumstantial
Evidence (cont.)
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Hearsay
– White car/blue car – “Oh my goodness,
the blue car just ran the red light!”
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– “Doctor, my back hurts.”
– “Doctor, my back has been hurting since
a car hit me last month.”
Direct and Circumstantial
Evidence (cont.)
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Character Evidence
– Violence –
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Victim had character for violence – specific instances
or reputation or opinion
Inference: victim acted violently on this occasion
cf defendant’s testimony that he felt threatened by
victim b/c of reputation
– Is this evidence direct or circumstantial?
– What is the jury being asked to find? On what
reasoning?
Direct and Circumstantial
Evidence (cont.)
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Character evidence
– Sexual assault offenses:
When a defendant seeks to introduce prior
promiscuous conduct of victim with others,
what is purpose? Direct or circumstantial?
 When a defendant seeks to introduce victim’s
prior sexual conduct with him, what is
purpose? Direct or circumstantial?
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Direct and Circumstantial
Evidence (cont.)
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Character
– Impeachment of witness with a prior
felony
– Evidence of prior similar acts
– What is purpose of this evidence? Is it
direct or circumstantial? What are we
asking jury to do with this evidence?
Direct and Circumstantial
Evidence (cont.)
Subsequent remedial measures:
- fixed problem after accident
- Inference: ?
Habit:
- Decedent always came to a full stop at
the stop sign at the corner by his house
- Inference: ?
Direct and Circumstantial
Evidence (cont.)
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People v. Cooper, Cross and Kingdom
– Analyze these facts: what is direct and what is
circumstantial – what are inferences?
– Aug. 16, 1995, decomposed body of William
Highsmith is discovered in remote wooded area:
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Lower half of T-shirt is cut away
Cut away part of T-shirt is used as gag on victim
Pants/underwear pulled down to thighs
Scissors near body
Contact gunshot wound to face
Advanced decomposition shows time of death to be
very near when last seen on Aug. 3, 1995
Direct and Circumstantial
Evidence (cont.)
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People v. Cooper, Cross and Kingdom
– Analyze these facts: what is direct and what is
circumstantial – what are inferences?
– Witnesses Hodges, Walton and Love see 3 D’s
just before kidnapping:
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All three see 3 D’s in gloves and black puffy jackets
with hoods on a hot summer afternoon
Love saw a revolver sticking out of 1 D’s shirt
Love saw all 3 D’s pull out guns to while confronting
victim
Direct and Circumstantial
Evidence (cont.)
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People v. Cooper, Cross and Kingdom
– Analyze these facts: what is direct and what is
circumstantial – what are inferences?
– Witness Archambeau makes observations on the
San Mateo Bridge at 7pm:
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A red Corvette stopped at high point of bridge
A man fitting same general description of Cooper is
standing outside of Corvette and throwing a folded
over grocery bag into the Bay
The Corvette’s license plate number is the same as
that of the red Corvette that K.K. Parker used to drive
the victim to the kidnap scene
Direct and Circumstantial
Evidence (cont.)
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People v. Cooper, Cross and Kingdom
– Analyze these facts: what is direct and what is
circumstantial – what are inferences?
– At 9pm, a worker at Bottles Liquor Store sees the same
red Corvette parked outside of the store blocking a
parking space; the car is running with no one inside and
he sees a man in a plaid shirt walking away from the car.
– At 11pm the police stop a car with Cooper in the
passenger seat. He is wearing a similar plaid shirt and
gloves with GSR are found where he was sitting. A black
jacket with GSR was found in the rear seat behind where
he was sitting.
Direct and Circumstantial
Evidence (cont.)
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People v. Cooper, Cross and Kingdom
– Analyze these facts: what is direct and what is
circumstantial – what are inferences?
– Assume that Kingdom gives a confession
statement in which he says:
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Only Cooper had a gun
Cooper held the gun at all times
Cooper cut the victim’s T-shirt and tied the gag on the
victim
Cooper tortured the victim by stabbing him with
scissors
Direct and Circumstantial
Evidence (cont.)
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People v. Cooper, Cross and Kingdom
– Analyze these facts: what is direct and what is
circumstantial – what are inferences?
– Assume Kingdom gives a confession statement
in which he says Cooper shot the victim in the
face:
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A 10mm shell is recovered from victim’s head
Several 9mm casings are recovered from kidnap scene