by Thomas Lundy

(March 2003)  

    The reviewing court must presume that the jury "resolved any [evidentiary] conflicts in favor of the prosecution, and must defer to that resolution." (Wright v. West (1992) 505 US 277, 296-97 [112 SCt 2482; 120 LEd2d 225].) However, when conflicting inferences are equally probable or, in other words, when the evidence is in equipoise, "the party with the burden of proof loses." (Simmons v. Blodgett (9th Cir. 1997) 110 F3d 39, 41-42; see also Rexall v. Nihill (9th Cir. 1960) 276 F2d 637, 644; Reliance Ins. v. McGrath (N.D. Cal. 1987) 671 FSupp 669, 675; Wilson v. Caskey (CA 1979) 91 CA3d 124, 129 [153 CR 798] ["equal probability does not satisfy a burden of proof...."].) The evidence must provide a reasonable basis to conclude that one inference is "more probable" than the other. (See U.S. v. Ramirez-Rodriguez (9th Cir. 1977) 552 F2d 883, 884 citing Turner v. U.S. (1970) 396 US 398 [90 SCt 642; 24 LEd2d 610].) "If there is nothing more tangible to proceed upon than two or more equally reasonable inferences from a set of facts, and ... under only one of the inferences would the defendant be liable, a jury will not be allowed to resort to conjecture to determine the facts. [Citations.]" (Olympia Oyster Co. v. Rayonier, Inc. (W.D. Wash. 1964) 229 FSupp 855, 861.) In other words, circumstantial evidence is "subject to the rule that if the conclusion reached from the facts in the chain of circumstances is equally consonant with the issues to be proven and with some other theory or theories inconsistent therewith, it becomes mere conjecture, and the rule of the burden of proof is not satisfied. [Citations.]" (Fegles Constr. Co. v. McLaughlin Constr. Co. (9th Cir. 1953) 205 F2d 637, 639; see also U.S. v. Glenn (2nd Cir. 2002) 312 F3d 58; U.S. v. Lopez (5th Cir. 1996) 74 F3d 575, 577; U.S. v. Andujar (1st Cir. 1995) 49 F3d 16, 20; U.S. v. Menesses (5th Cir. 1992) 962 F2d 420, 426; U.S. v. Wright (8th Cir. 1987) 835 F2d 1245, 1249; Cosby v. Jones (11th Cir. 1982) 682 F2d 1373, 1383.)

    For example, in Gustine v. State (FL 1923) 97 So 207, the Florida Supreme Court held that an attempt to "hot-wire" a care was insufficient to show an intent to steal as opposed to an intent to temporarily use the car.

    "If the facts in proof are equally consistent with some other rational conclusion than that of guilt, the evidence is insufficient. If the evidence leaves it indifferent which of several hypotheses is true, or merely establishes some finite probability in favor of one hypotheses rather than another, such evidence cannot amount to proof however great the probability may be. [Citations.]

    If it be assumed that the evidence on behalf of the state is sufficient basis for the inference that defendant intended to move the automobile and to run it, his acts are as consistent with the conclusion that he intended to use it temporarily ... as that he intended to appropriate it and permanently deprive the owner of his possession ...." (Emphasis added.)

(Gustine v. State, supra, 97 So at 207-208; see also generally Nishikawa v. Dulles (1958) 356 US 129, 137 [78 SCt 612; 2 LEd2d 659] [equally probable inferences of intent from the act committed created an "evidentiary gap"]; Stallings v. Tansy (10th Cir. 1994) 28 F3d 1018, 1024 [prosecution’s reliance solely on the act of passing a forged check created a fatal evidentiary gap as to the element of knowledge].)

SAMPLE INSTRUCTION # 1:

    If the prosecution’s evidence gives equal or nearly equal circumstantial support to competing explanations for an element of a charge, one consistent with the prosecution’s theory of guilt but the other an equally plausible innocent reason for the same facts as offered by the defense, then you must necessarily entertain a reasonable doubt as to the truth of an element of the charge and, therefore, find the defendant not guilty.

[Source: U.S. v. Glenn (2nd Cir. 2002) 312 F3d 58, 70.]

SAMPLE INSTRUCTION # 2:

    If the facts in proof are equally consistent with some other rational conclusion than that of guilt, the evidence is insufficient. If the evidence leaves the jury indifferent which of several hypotheses is true, or merely establishes some finite probability in favor of one hypotheses rather than another, such evidence cannot amount to proof however great the probability may be.

[Source: Gustine v. State (FL 1923) 97 So 207, 207-208.]

 RETURN TO TABLE OF CONTENTS