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Circumstantial Evidence Circumscribed By Monte E. Hester; Oct 1998 It makes sense -- a guilty verdict will stand if it is based solely on circumstantial evidence only if such evidence is inconsistent with any reasonable theory tending to establish innocence. A recent appellate court case, State v. Bridge, _____ Wn.App. _____, 955 P.2d 418 (Div. 3 1998), reversed the conviction of the defendant who was found guilty by a trial judge based solely on circumstantial evidence. The sole evidence was the fingerprint of the defendant found on a moveable object at the scene of the burglary. The object was recently purchased by the owner and still had a store tag attached to it. The victim of the burglary didn’t know the defendant and had never invited him to the property. Obviously, this evidence could be construed in two ways, one consistent with an inculpatory hypothesis and one with an exculpatory hypothesis. The defendant either left his print on the object during the burglary or he happened to touch the object while it was in the store from which it had been purchased. The available hypotheses are inconsistent therefore looking at the evidence in a light most favorable to the state -- it remains insufficient to sustain a conviction. Therefore, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This law is not new, and in fact we have had the experience of obtaining an instruction which used to be commonly given to the jury telling them to consider circumstantial evidence as evidence of innocence if the circumstantial evidence was consistent with both an inculpatory hypothesis and an exculpatory hypothesis. It makes sense that such an instruction is appropriate for purposes of assisting the jury in evaluating such evidence even if there is “disputed” direct evidence and certainly in the case where all of the evidence is circumstantial. A federal case, United States v. Wolfe, 611 F.2d 1152, 1155 (5th Cir. 1980), approved the following instruction: There are two types of evidence from which you, a jury, may properly find a defendant guilty of a crime.
As a general rule the law makes no distinction between direct and circumstantial evidence, but simply requires before convicting a defendant you, the jury, be satisfied of the defendant’s guilt beyond a reasonable doubt from the evidence in the case. Now, in considering circumstantial evidence, keep certain matters in mind, and certainly the circumstances must be proved beyond a reasonable doubt where there is circumstantial evidence. Those circumstances should be consistent with guilt and inconsistent with innocence and they ought to be of such a conclusive or of such a positive tendency as to convince you beyond a reasonable doubt rather than of some other conclusion. I repeat, if the circumstances, the circumstantial evidence and all other evidence in the case, balance out, that is, are susceptible of two equally reasonable constructions, one indicating guilt and the other innocence, then, of course, you should find the defendant innocent. You are not bound to find any issue of fact in accordance with the testimony of any number of witnesses which does not produce in your mind belief in the likelihood of truth as against the testimony of any other witness or any other evidence which does produce such belief. Personally, I think a good argument can be made that circumstantial evidence which is consistent with both guilt and innocence is not admissible because under the rationale of Bridge such evidence is not relevant as relevant evidence is defined in ER 401: Relevant evidence” means evidence having 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.
If the evidence can be interpreted either way, then it is of no evidentiary value because it is not relevant. A defendant may want the circumstantial evidence to be admitted because of its beneficial affect in which event there would be no objection. Often, even though there is an innocent hypothesis that can be attached to circumstantial evidence, the guilty hypothesis is so prejudicial that good judgment would dictate an objection. The Bridge case can support a timely objection. Circumstantially yours, Monte E. Hester |
