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‘Circumstantial’ — the Scarlet C?

Forget everything you saw on “Perry Mason” — most convictions are won on circumstantial evidence, which the law says carries the same weight as direct eyewitness testimony.
Scott Peterson was escorted into the county jail in Modesto, Calif., in April.
Scott Peterson was escorted into the county jail in Modesto, Calif., in April.
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Authorities acknowledge that their case against Scott Peterson is largely circumstantial. But legal experts say that doesn’t mean it isn’t conclusive. Forget everything you saw on “Perry Mason” — most convictions are won on circumstantial evidence, which the law says carries the same weight as direct eyewitness testimony.

That means Peterson, 30, could be convicted of two counts of capital murder in the deaths of his wife, Laci, and their unborn child, whose badly decomposed bodies were found last week on the shores of San Francisco Bay.

Even though there are no known eyewitnesses. Or, for that matter, any publicly known direct physical evidence tying him to their deaths.

In fact, it has not yet even been established how Laci Peterson and the boy who would have been named Connor died.

With such a circumstantial case, why do prosecutors sound so confident that they have a “slam dunk,” as California Attorney General Bill Lockyer put it last week?

Reaching a simple conclusion
Lawyers said the general public had a misconception about what constituted circumstantial evidence — enough of their high-profile colleagues have gone before the cameras to denounce the cases against their clients as “purely circumstantial” to give any legal doctrine a bad name.

The law is clear in California and in every other jurisdiction: “Both direct evidence and circumstantial evidence are acceptable as a means of proof,” according to the standards California lays out for instructions to juries. “Neither is entitled to any greater weight than the other.”

The easiest way to define “circumstantial evidence” is by what it is not — it is not evidence that comes directly from an eyewitness or a participant. With direct evidence, jurors don’t have to draw any “if-then” inferences.

Everything else is circumstantial evidence, which is simply anything that allows a jury to reach a conclusion by reasoning, as long as it is relevant.

Most witness testimony is circumstantial, since most witnesses relate not that they saw the defendant actually commit the crime, but instead that they saw or knew something else that might lead a reasonable juror to conclude that the defendant committed the crime. That covers expert witnesses, too.

So, while nobody keeps statistics on how many cases are tried based solely or largely on circumstantial evidence, legal experts reckon that it’s the large majority.

“How many of us have seen in movies or TV, ‘Oh, it’s just a circumstantial evidence case’?” said Norman M. Garland, a professor at Southwestern College of Law in Los Angeles and author of several books on the rules of evidence. “That’s just a misnomer, a misconception.”

Dismissive judgments of evidence as “simply circumstantial” reflect a “lack of true consideration of what’s involved,” Garland, who has been both a prosecutor and a defense attorney, said in an interview. Not only can circumstantial evidence be extraordinarily persuasive, but it can often be stronger than direct evidence — stronger than eyewitness testimony or even, sometimes, a confession.

“Eyewitness testimony is very suspect,” said Garland (who, like other lawyers consulted for this report, stressed that he had no special knowledge of the Peterson case).

In fact, Garland said, California judges instruct jurors “to scrutinize carefully the eyewitness accounts, because they’re subject to various difficulties. It’s a very strong instruction.”

The people vs. Moe
As an example, let’s examine the Three Stooges Murder Case.

It’s not enough for a witness, Larry, to say, “I saw Moe drop a two-ton safe on Curly from 20 stories.” The prosecution must also establish that Larry can indeed identify Moe, that Larry was in fact there to see Moe drop the safe, that it was the same safe that landed on Curly, and that the Moe whom Larry saw was the same Moe who is on trial.

If on the other hand, the prosecution can demonstrate that Moe had ill feelings toward Curly, that Moe had a key to the room where the safe was stored, that it was certain that Moe was not somewhere else and that it was Moe’s fingerprints on the safe embedded in the sidewalk with Curly underneath, then the prosecution doesn’t really need Larry’s testimony at all.

(In the world of the Three Stooges, of course, it goes without saying that Moe is strong enough to lift a two-ton safe up and over a windowsill.)

Speaking in general, not of Moe in particular — it is only fair to mention that he is not responsible for dreaming up the Stooges analogy — Garland said that all of the problems involved with establishing an eyewitness’ credibility can be “very threatening to the strength of the case. A good, strong circumstantial case is often better than an eyewitness account.”

Famous cases in history
Indeed, some of the most prominent criminal trials in recent years were based solely or largely on what the public would dismiss as “merely circumstantial evidence”:

  • Ethel Kennedy’s nephew Michael Skakel was convicted last June of killing 15-year-old Martha Moxley in Norwalk, Conn., in 1975. Nobody saw Skakel do it. Prosecutors were never able to place him at the scene. His fingerprints were never found on the 6-iron golf club that killed Moxley — even though his family owned the 6-iron.

Instead, the prosecution relied on secondhand reports of confessions (in one instance, a third-hand report) and inconsistencies in the alibis Skakel had given in the intervening quarter-century to build a circumstantial web of evidence that persuaded the jurors.

  • Similarly, no one saw David Westerfield abduct 7-year-old Danielle van Dam in February 2002. No one saw him dump her body 25 miles away. Police found no evidence that he had ever been in Danielle’s home in Sabre Springs, Calif.

They did, however, find Danielle’s prints and traces of her DNA in Westerfield’s motor home, along with traces of her blood on a jacket he took to be dry-cleaned. That turned out to be very compelling, indeed, conclusive, evidence for the jury. It was also purely circumstantial as defined by the law.

  • Bobby Frank Cherry, 71, was convicted last year of killing four young black girls with a bomb that exploded outside Sixteenth Street Baptist Church in Birmingham, Ala., in 1963. Prosecutors called no witnesses who saw Cherry plan or carry out the bombing.

They did, however, present extensive evidence that Cherry, a member of the Ku Klux Klan, was a virulent racist, along with two of the three other men believed to have been involved in the bombing. They presented secondhand reports that he had confessed to friends and family members. They played FBI surveillance audiotapes in which Cherry and other Klansman discussed the case and their culpability.

The evidence was powerful and persuasive enough for jurors to convict him almost 30 years after the fact. But all of the evidence — including FBI tapes on which Cherry himself could be heard bragging about the bombing — was circumstantial as defined under the law.

And that is where the public gets its misconception about circumstantial evidence. The fact that a case is circumstantial does not mean that it is weak. It simply means that jurors must weigh the evidence and take the second step of reaching an independent conclusion.

“I am always astonished by the view that abounds in our society that circumstantial evidence is somehow not good enough,” Garland said. “... Circumstantial evidence is nothing more than what we live by on a daily basis as a matter of common sense.”