Chapter 25

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25.12 Circumstantial Evidence

    25.12.1 Circumstantial Evidence: Duty To Instruct
    25.12.2 Likelihood That Jurors May Have Heard The Term "Circumstantial Evidence" Outside Of The Courtroom In Common Parlance
    25.12.3 Circumstantial Evidence: Equally Reasonable Inferences Must Be Resolved In Favor Of The Defendant
    25.12.4 Equally Reasonable Inferences Must Be Resolved In Favor Of Defendant: Applicability To Direct Evidence
    25.12.5 Proof Of Intent: Circumstantial Evidence Sufficient
    25.12.6 Conspiracy: Proof By Circumstantial Evidence
    25.12.7 Circumstantial Evidence: Federal Circuit Model Instructions And Notes

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25.12.1 Circumstantial Evidence: Duty To Instruct

PRACTICE NOTE: While courts have broad discretion in admitting circumstantial evidence, the trial judge must instruct the jury if the evidence is entirely circumstantial. In the case of entirely circumstantial evidence, some courts have held that failure to instruct the jury that such evidence must exclude all other reasonable hypotheses of guilt is reversible error. (Stephens v. State (GA 1993) 430 SE2d 29, 31.)

Better practice dictates the need for an instruction even if the evidence is only largely circumstantial. Alternatively, an instruction on the reasonable-doubt standard, or on the burden of proof will suffice. No instruction may be necessary when the circumstantial evidence is "merely corroborative of or incidental to direct evidence in the case." (Wharton's Criminal Evidence (West, 14th ed. 1986) § 4:5, pp. 297-303.)

RESEARCH NOTES:

See generally, NCJIC 305.3.5 [Circumstantial Evidence] .

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 3.05.

See also 6th Circuit Pattern Jury Instructions - Criminal 1.06.

See also 7th Circuit Federal Jury Instructions - Criminal 1.05.

See also 8th Circuit Model Jury Instructions - Criminal 4.17.

See also 9th Circuit Model Jury Instructions - Criminal 1.6.

See also 9th Circuit Model Jury Instructions - Criminal 3.8.

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25.12.2 Likelihood That Jurors May Have Heard The Term "Circumstantial Evidence" Outside Of The Courtroom In Common Parlance

PRACTICE NOTE: See 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 1.05 [Definition Of "Direct" And "Circumstantial" Evidence] Committee comment (1999).

RESEARCH NOTES:

See generally, NCJIC 305.3.5 [Circumstantial Evidence].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 3.05.

See also 6th Circuit Pattern Jury Instructions - Criminal 1.06.

See also 7th Circuit Federal Jury Instructions - Criminal 1.05.

See also 8th Circuit Model Jury Instructions - Criminal 4.17.

See also 9th Circuit Model Jury Instructions - Criminal 1.6.

See also 9th Circuit Model Jury Instructions - Criminal 3.8.

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25.12.3 Circumstantial Evidence: Equally Reasonable Inferences Must Be Resolved In Favor Of The Defendant

RATIONALE: Because the prosecution must prove affirmative evidence to overcome its burden of proof, evidence which merely raises equally probably conflicting inferences does not satisfy that burden.

POINTS AND AUTHORITIES: See People v. Bender (CA 1945) 27 C2d 164, 175-77 [163 P2d 8]; United States v. Wolfe (5th Cir. 1980) 611 F2d 1152, 1155; see also NCJIC 270.2.17 [Burden Of Proof Is Not Satisfied By Equally Probably Conflicting Inferences That Are In A State Of Equipoise].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3].

CAVEAT: While many standard pattern instruction manuals do not include this principle, it is unquestionably a correct description of the prosecution's burden. (See NCJIC 270.2.17 [Burden Of Proof Is Not Satisfied By Equally Probably Conflicting Inferences That Are In A State Of Equipoise].)

Moreover, this principle shouldn't be limited to circumstantial evidence. (See NCJIC 302.1.2 [Death Eligibility: Applicability Of Circumstantial Evidence Rules].)

RESEARCH NOTES:

See generally, NCJIC 305.3.5 [Circumstantial Evidence].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 3.05.

See also 6th Circuit Pattern Jury Instructions - Criminal 1.06.

See also 7th Circuit Federal Jury Instructions - Criminal 1.05.

See also 8th Circuit Model Jury Instructions - Criminal 4.17.

See also 9th Circuit Model Jury Instructions - Criminal 1.6.

See also 9th Circuit Model Jury Instructions - Criminal 3.8.

SAMPLE INSTRUCTION # 1:

    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 are susceptible of two--if the circumstantial evidence and all of the evidence in the case, when finally considered by you, 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.

[United States v. Wolfe (5th Cir. 1980) 611 F2d 1152, 1155.]

SAMPLE INSTRUCTION # 2:

    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.

    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.

    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.

[See generally People v. Bender (CA 1945) 27 C2d 164, 175-77 [163 P2d 8]; United States v. Wolfe (5th Cir. 1980) 611 F2d 1152, 1155.]

SAMPLE INSTRUCTION # 3:

The [specific intent] [or] [and] [mental state] with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not [find the defendant guilty of the crime charged [in Count[s] ______, ______, ______ and ______], [or] [the crime[s] of __________, __________, __________, which [is a] [are] lesser crime[s]],] [or] [find the allegation _______________ to be true,] unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required [specific intent] [or] [and] [mental state] but (2) cannot be reconciled with any other rational conclusion.

Also, if the evidence as to [any] [specific intent] [or] [mental state] permits two reasonable interpretations, one of which points to the existence of the [specific intent] [or] [mental state] and the other to its absence, you must adopt that interpretation which points to its absence. If, on the other hand, one interpretation of the evidence as to the [specific intent] [or] [mental state] appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.

[See generally People v. Bender (CA 1945) 27 C2d 164, 175-77 [163 P2d 8]; United States v. Wolfe (5th Cir. 1980) 611 F2d 1152, 1155.]

SAMPLE INSTRUCTION # 4:

Mere proximity to a substance is insufficient proof of possession. There must be additional evidence of the defendant’s knowledge and control. Such knowledge and control may be established by circumstantial evidence, but such circumstantial evidence must exclude every reasonable hypothesis except that of guilt, and proof amounting to mere probability or even strong suspicion is insufficient.

[See Johnson v. State (OK 1988) 764 P2d 530, 535 [approving the above language].]

SAMPLE INSTRUCTION # 5:

The State relies [in part] upon circumstantial evidence for proof of the aggravating circumstance(s) of [specify the aggravating circumstances(s) that is/are applicable]. In order to warrant a finding of any aggravating circumstance or circumstances upon circumstantial evidence, each fact necessary to prove the existence of the circumstance must be established by the evidence beyond a reasonable doubt. All the facts necessary to such proof must be consistent with each other and with the conclusion the State seeks to establish. All of the facts and circumstances, taken together, must be inconsistent with any reasonable theory or conclusion other than the existence of the aggravating circumstance. All of the facts and circumstances, taken together, must establish to your satisfaction the existence of the aggravating circumstance beyond a reasonable doubt.

[Source: OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 4-77 [Death Penalty Proceedings-Circumstantial Evidence-Excluding Reasonable Theories Other Than Existence Of Aggravating Circumstance] (1997 Supp.) (Oklahoma Center for Criminal Justice, 2nd ed. 1996).]

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25.12.4 Equally Reasonable Inferences Must Be Resolved In Favor Of Defendant: Applicability To Direct Evidence

RATIONALE: When the defense theory focuses on the principle that equally probable conflicting inferences are insufficient to convict, a specific instruction on this principle may be appropriate.

POINTS AND AUTHORITIES: The principle that if two reasonable interpretations of the evidence exist, the one favoring the defendant's innocence must be adopted by the jury is an axiomatic description of the prosecution's burden of proof. (See NCJIC 270.2.17 [Burden Of Proof Is Not Satisfied By Equally Probably Conflicting Inferences That Are In A State Of Equipoise].) For example, California courts have long recognized it. (See People v. Bender (CA 1945) 27 C2d 164, 175-77 [163 P2d 8]; People v. Naumcheff (CA 1952) 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 (CA 1952) 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 (CA 1926) 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 (CA 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"]; People v. Carrol (CA 1947) 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, this principle set forth above has been conveyed to the jury by an instruction which provides that 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. (See U.S. v. James (9th Cir. 1978) 576 F2d 223, 227 fn 3; but see U.S. v. Grayson (9th Cir. 1979) 597 F2d 1225 [proper but not required].)

See also NCJIC 25.12.3 [Circumstantial Evidence: Equally Reasonable Inferences Must Be Resolved In Favor Of The Defendant].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.1; 2.3].

BRIEFING AVAILABLE: Click here [Brief Bank # B-694.]

RESEARCH NOTES:

See generally, NCJIC 305.3.5 [Circumstantial Evidence].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 3.05.

See also 6th Circuit Pattern Jury Instructions - Criminal 1.06.

See also 7th Circuit Federal Jury Instructions - Criminal 1.05.

See also 8th Circuit Model Jury Instructions - Criminal 4.17.

See also 9th Circuit Model Jury Instructions - Criminal 1.6.

See also 9th Circuit Model Jury Instructions - Criminal 3.8.

SAMPLE INSTRUCTION:

If you view the evidence in this case as reasonably permitting either of two conclusions, one pointing to innocence and the other pointing to guilt, you must necessarily adopt the conclusion pointing to innocence, because so long as that is a reasonable conclusion and it exists, it would be impossible to find guilt beyond a reasonable doubt, because the very existence of a reasonable alternative on the other side would preclude you from finding guilt beyond a reasonable doubt.

[U. S. v. James (9th Cir. 1978)576 F2d 223, 227.]

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25.12.5 Proof Of Intent: Circumstantial Evidence Sufficient

RATIONALE: When the defense is based on a theory that the defendant has a particular mental state or intent (e.g., heat of passion or self defense), the jury may tend to assume that this mental state or intent can only be proved by the defendant's direct testimony to that effect. Hence, the defense should have the right to a defense theory instruction that informs the jury about the principle that mens rea or intent may be proven by circumstantial evidence.

POINTS AND AUTHORITIES: Often, the availability of an instruction on a defense is measured by the affirmative evidence of that defense presented by the defendant. However, the principle is well recognized that intent may be inferred from the surrounding circumstances. (See 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.08 [Inferring Required Mental State] (1991); see also O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 14.13 [Failure To Follow A Lawful Order Of The Court] (West, 5th ed. 2000).) Accordingly, whether the defendant had the required subjective mental state for a particular defense may be inferred from the circumstances even when no affirmative defense evidence has been presented.

The defendant’s intent, knowledge, or state of mind is usually shown by circumstantial evidence. However, it may be proved by direct evidence if the defendant makes a statement as to what his intent, knowledge or state of mind is or was. (See Morissette v. U.S. (1952) 342 US 246, 276 [72 SCt 240, 96 LEd 288]; State v. Tomasko (CT 1996) 681 A2d 922, 926; see also LaFave & Scott Substantive Criminal Law (West 1986) § 3.5(f).)

See also NCJIC 250.2.2 [Defendant Need Not Testify To Obtain Instruction On Defense Theory].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

STRATEGY NOTE: While this kind of instruction may often benefit the prosecution where intent or mental state is an element of the charge, it may be useful to the defense where there is a theory such as self defense or heat of passion which requires the jury to infer that the defendant had a certain mental state or intent.

RESEARCH NOTES:

See generally, NCJIC 305.3.5 [Circumstantial Evidence].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 3.05.

See also 6th Circuit Pattern Jury Instructions - Criminal 1.06.

See also 6th Circuit Pattern Jury Instructions - Criminal 2.08.

See also 7th Circuit Federal Jury Instructions - Criminal 1.05.

See also 8th Circuit Model Jury Instructions - Criminal 4.17.

See also 8th Circuit Model Jury Instructions - Criminal 7.05.

See also 9th Circuit Model Jury Instructions - Criminal 1.6.

See also 9th Circuit Model Jury Instructions - Criminal 3.8.

SAMPLE INSTRUCTION # 1:

        Intent may be proved by circumstantial evidence. Indeed, it can rarely be established by any other means. We simply cannot look into the head or mind of another person. It is impossible physically to do that. So, while witnesses may see and hear and so be able to give direct evidence of what a defendant does or fails to do, there can be no eyewitness account of the state of mind with which the acts were done or omitted.

    But what a defendant does or fails to do may indicate intent or lack of intent to commit the particular offense charged.

    You are entitled to consider in that regard, member of the jury, the evidence in the case, all of the testimony and the stipulation. In other words, you may properly consider all the facts and circumstances properly before you which may aid determination of state of mind.

[U.S. v. Gambina (8th Cir. 1977) 564 F2d 22, 25.]

SAMPLE INSTRUCTION # 2:

[A] defendant’s state of mind can be proved indirectly from the surrounding circumstances. This includes things like what the defendant said, what the defendant did, how the defendant acted, and any other facts or circumstances in evidence that show what was in the defendant’s mind.

[6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.08 [Inferring Required Mental State] ¶ 3 (1991).]

SAMPLE INSTRUCTION # 3:

A person's intent may be inferred from his statements and/or conduct. However, you may not convict the defendant unless, in light of all the circumstances, the prosecution has proved beyond a reasonable doubt that the defendant [intended to ______________] [had the mental state of _____________] at the time of the [alleged] offense.

SAMPLE INSTRUCTION # 4:

In deciding whether the defendant [intended to ________________] [had the mental state of _______________] [knew that _____________] at the time of the alleged offense, you may consider any statements or conduct of the defendant which indicate [his] [her] state of mind. You may find the required intent or mental state from such statements or conduct but are not required to do so. You are the sole judges of the facts and you must not find the defendant guilty unless the prosecution has proven the required mental state and/or intent beyond a reasonable doubt.

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25.12.6 Conspiracy: Proof By Circumstantial Evidence

See NCJIC 83.2.2 [Conspiracy: Proof By Circumstantial Evidence].

RESEARCH NOTES:

See generally, NCJIC 305.3.5 [Circumstantial Evidence].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 3.05.

See also 6th Circuit Pattern Jury Instructions - Criminal 1.06.

See also 7th Circuit Federal Jury Instructions - Criminal 1.05.

See also 8th Circuit Model Jury Instructions - Criminal 4.17.

See also 9th Circuit Model Jury Instructions - Criminal 1.6.

See also 9th Circuit Model Jury Instructions - Criminal 3.8.

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25.12.7 Circumstantial Evidence: Federal Circuit Model Instructions And Notes

See 1st Circuit Pattern Jury Instructions - Criminal 3.05.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.07.

See also 6th Circuit Pattern Jury Instructions - Criminal 1.06.

See also 7th Circuit Pattern Jury Instructions - Criminal 1.05.

See also 7th Circuit Pattern Jury Instructions - Criminal 3.08.

See also 8th Circuit Pattern Jury Instructions - Criminal 1.04.

See also 8th Circuit Pattern Jury Instructions - Criminal 4.17.

See also 9th Circuit Pattern Jury Instructions - Criminal 1.6.

See also 9th Circuit Pattern Jury Instructions - Criminal 3.8.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 4.1.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 4.2.