2.4-1 Direct and Circumstantial Evidence
Revised to December 1, 2007 (modified June 13, 2008)
The evidence from which you are to decide what the facts are consists of: 1) the sworn testimony of witnesses both on direct and cross examination, regardless of who called the witness; 2) the exhibits that have been admitted into evidence; 3) any facts that the court judicially noticed; and 4) any stipulations of the parties.
In reaching your verdict, you should consider all the testimony and exhibits admitted into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. These include:
Arguments and statements by lawyers. The lawyers are not witnesses. What they have said in their closing arguments is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls. It is not proper for the attorneys to express their opinions on the ultimate issues in the case or to appeal to your emotions.
Testimony that has been excluded or stricken. [<Include if appropriate:> Some testimony and exhibits have been admitted for limited purposes; whenever I have given a limiting instruction, you must follow it.]
The document called the “information,” which you will have with you at the time of deliberation. The information is merely the formal manner of accusing a person of a crime in order to bring (him/her) to trial. You must not consider the information as any evidence of the guilt of the defendant, or draw any inference of guilt because (he/she) has been charged with a crime. [<Include if appropriate:> You will note that each count in the information contains within it the alleged time, date and location of the offense. The state does not have to prove the exact time, date or location of the offense beyond a reasonable doubt. However, the state must prove each element of each offense, including identification of the defendant, beyond a reasonable doubt.]
There are, generally speaking, two kinds of evidence, direct and circumstantial. Direct evidence is testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is indirect evidence, that is, evidence from which you could find that another fact exists, even though it has not been proved directly. There is no legal distinction between direct and circumstantial evidence as far as probative value; the law permits you to give equal weight to both, but it is for you to decide how much weight to give to any particular evidence.
Circumstantial evidence of an event is the testimony of witnesses as to the existence of certain facts or evidence or the happening of other events from which you may logically conclude that the event in question did happen. By way of example, let us assume that it is a December night and you're preparing to retire for the evening. You look out the window and you see it is snowing. You wake up the next morning, come to court, and testify that the night before it was snowing in the area of your house. That is direct evidence of the fact that it snowed the night before. You saw it and you came into court and testified to that fact.
Now assume that it is another December night, the weather is clear, there is no snow on the ground, and you retire for the evening. You wake up the next morning, you look out the window and you see snow on the ground and footprints across your lawn. You come into court and you testify to those facts. The evidence that the night before there was no snow on the ground and the next morning there was snow on the ground and footprints across your lawn is direct evidence. That direct evidence, however, is circumstantial evidence of the fact that some time during the night it snowed and that some time thereafter someone walked across your lawn.
The only practical difference between direct and circumstantial evidence is that when you have direct evidence of some fact, the main thing you have to do is determine the believability of the direct testimony given, the credibility of the witness. With circumstantial evidence, you must first determine the credibility of the witness or witnesses and decide whether the facts testified to did exist. Then you must decide whether the happenings of those events or the existence of those facts leads logically to the conclusion that other events occurred or other facts exist, and ultimately, whether the crime alleged was committed by the accused.
There is no reason to be prejudiced against evidence simply because it is circumstantial evidence. You make decisions on the basis of circumstantial evidence in the everyday affairs of life. There is no reason why decisions based on circumstantial evidence should not be made in the courtroom. In fact, proof by circumstantial evidence may be as conclusive as would be the testimony of witnesses speaking on the basis of their own observation. Circumstantial evidence, therefore, is offered to prove a certain fact from which you are asked to infer the existence of another fact or set of facts. Before you decide that a fact has been proved by circumstantial evidence, you must consider all of the evidence in light of reason, experience and common sense.
In State v. Crafts, 226 Conn. 237 (1993), the defendant argued "that the accumulation of multiple 'reasonable' inferences runs the risk of producing ultimate findings that contain 'reasonable doubts.'" Id., 244. The Court rejected this because it rested "on the assumption that inferential thinking necessarily proceeds in a pyramid of dependent inferences, so that ultimate findings inherently include the possible alternatives that may exist in the underlying inferences." Id., 244-45. "[I]nferential reasoning relies on the entirety of the evidence to support initial and then to reinforce subsequent inferences such that the ultimate conclusions are found beyond a reasonable doubt." Id., 246 n.4.
The Court cites several cases from other jurisdictions that require that when the case is based on circumstantial evidence, the state has the burden of proving that no innocent explanations exist. Id., 247 n.5. The Court finds that such a rule is not necessary. "[O]ur rule comports with the basic understanding that it is the jury's function to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." Id., 247.
The two-inference rule
The two-inference rule, which requires that any conclusion reasonably to be drawn from the evidence that is consistent with the innocence of the accused must prevail, does not apply to inferences drawn from evidentiary facts. State v. Salz, 226 Conn. 20, 29 (1993); State v. Foord, 142 Conn. 285, 294 (1955). "[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury's function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted.) State v. Grant, 219 Conn. 596, 604 (1991). This distinction between proof of guilt and establishment of evidentiary facts illuminates "the difference between the jury's function in drawing inferences from specific facts or evidence and its function in coming to the ultimate conclusion as to guilt or innocence on the basis of all the evidence." State v. Dumlao, 3 Conn. App. 607, 616 (1985).
Facts and standards of
Numerous cases have found it error to instruct the jury to apply the "more probable than not" standard to circumstantial evidence. See State v. Rodgers, 198 Conn. 53, 56-60 (1985); State v. McDonough, 205 Conn. 352, 355-56 (1987), cert. denied, 485 U.S. 906, 108 S.Ct. 1079, 99 L.Ed.2d 238 (1988); State v. Lee, 53 Conn. App. 690, 699 n.5 (1999), and cases cited therein. The Court acknowledges that "as an abstract proposition, it is not illogical to draw an inference if the evidence establishes that it is probable," but recognizes that such instructions have "potential for misleading a jury concerning the state's burden to prove each element of the crime beyond a reasonable doubt." State v. McDonough, supra, 355-56.
Courts have been criticized for instructing that facts, whether direct or inferred, must be proved beyond a reasonable doubt. See State v. Williams, 220 Conn. 385, 397-400 (1991) (erroneous to instruct that evidentiary facts had to proved beyond a reasonable doubt); State v. James, 211 Conn. 555, 581 (1989) ("[t]he state may well have complained that such an instruction imposed a far greater burden upon it than the standard requirement that only the inference of guilt as to each element of the crime, as distinguished from the totality of the subordinate facts from which the inference is to be drawn, need be proved beyond a reasonable doubt."); State v. Francis, 83 Conn. App. 226, 239-43, cert. denied, 270 Conn. 912 (2004) (requiring facts to be proved beyond a reasonable doubt is overly favorable to the defendant).
that the jury must find every element proven beyond a reasonable doubt in order
to find the defendant guilty of the charged offense, [but] each of the basic and
inferred facts underlying those conclusions need not be proved beyond a
reasonable doubt. . . . If it is reasonable and logical for the jury to
conclude that a basic fact or an inferred fact is true, the jury is permitted to
consider the fact proven and may consider it in combination with other proven
facts in determining whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime charged beyond a
reasonable doubt." (Internal quotation marks omitted.) State v. Martin,
285 Conn. 135, 147-48 (2008); see also
State v. Pinnock, 220 Conn. 765, 771 (1992). "It is axiomatic that the
state's burden of proof beyond a reasonable doubt applies to each and every
element comprising the offense charged. But this burden of proof does not
operate upon each of the many subsidiary, evidentiary, incidental or subordinate
facts, as distinguished from elements or ultimate facts, upon which the
prosecution may collectively rely to establish a particular of the crime beyond
a reasonable doubt." (Internal quotation marks omitted.) State v. Williams,
supra, 220 Conn. 398; State v. McDonough, supra, 205 Conn. 362 (Callahan,
J., concurring); see also State v. Gonzalez, 205 Conn. 673, 694
(1987) (Callahan, J., concurring).