Applicability Of Circumstantial Evidence Principles To
Direct Evidence
(October 1996)
Note: All references to "FORECITE" refer to FORECITE California,
authored by Thomas Lundy and available from James Publishing. Go to: http://jamespublishing.com/books/fc.htm
The principles set forth in CALJIC 2.01 and 2.02, while
specifically limited by the CALJIC committee to circumstantial evidence, should
be applied to all the evidence. In fact, the California courts have long
recognized the principle that if there exists two reasonable interpretations of
the evidence "as a whole," the one favoring the defendant's
innocence must be adopted by the jury. (See People v. Bender (45) 27 C2d
164, 175-77 [163 P2d 8]; People v. Naumcheff (52) 114 CA2d 278, 281 [250
P2d 8] ["If from the evidence you can with equal propriety draw two
conclusions, the one of guilt, the other of innocence, then in such a case it
is your duty to adopt the one of innocence and find the defendant not
guilty."]; People v. Haywood (52) 109 CA2d 867, 872 [241 P2d 665]
["The testimony in this case if its weight and effect be such as two
conclusions can be reasonably drawn from it, the one favoring the defendant's
innocence, and the other tending to establish his guilt, law, justice and
humanity alike demand that the jury shall adopt the former and find the accused
not guilty."]; People v. Foster (26) 198 C 112, 127 [243 P 667]
[Jury instructed "that, considering the evidence as a whole, if it was
susceptible of two reasonable interpretations, one looking 'toward guilt and
the other towards the innocence of the defendant, it was their duty to give
such facts and evidence the interpretation which makes for the innocence of the
defendant.'"]; People v. Barthleman (1898) 120 C 7, 10 [52 P 112]
["If the evidence points to two conclusions, one consistent with the
defendant's guilt, the other consistent with the defendant's innocence, the
jury are bound to reject the one of guilt and adopt the one of innocence, and
acquit the defendant."]; and People v. Carrol (47) 79 CA2d 146, 150
[179 P2d 75] ["You are instructed that if from the evidence you can with
equal propriety draw two conclusions, one of guilt, the other of innocence, it
is your duty to adopt the one of innocence and find the defendant not
guilty."].)
In the federal system, the principle set forth above is
conveyed to the jury by a standard jury instruction which provides as follows:
"If the jury views the evidence in the case as reasonably permitting
either of two conclusions - one of innocence, the other of guilt - the jury
must, of course, adopt the conclusion of innocence." (Devitt, et al. Fed.
Jury Prac. & Instr. (1992) § 1210, p. 354; see also U.S. v. James(9th
Cir. 1978) 576 F2d 323, 327.)
For some reason, however, the CALJIC instructions have
evolved in such a way as to limit this principle to circumstantial evidence as
opposed to all of the evidence. In point of fact, People v. Bender, supra,
which CALJIC provides as authority for its circumstantial evidence instruction,
did not hold that it should only be given in circumstantial evidence cases. To
the contrary, Bender stated that the instruction, as applied to all
of the evidence, was "eminently proper...". Bender, 27 C2d
at 177.
Hence, the principles set forth in CJ 2.01 and 2.02
should be made equally applicable to both circumstantial and direct evidence.
Failure to adequately instruct the jury upon matters relating to proof of any
element of the charge and/or the prosecution's burden of proof thereon violates
the defendant's state (Art. I, § 15 and § 16) and federal (6th and 14th
Amendments) constitutional rights to trial by jury and due process. [See
generally, FORECITE PG VII(C).]
[Additional briefing on this issue is available to FORECITE California
subscribers. Brief Bank # B-694.]
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