Circumstantial Evidence

[kate_nepveu]

This morning, I was in Rochester to argue two cases. When there are a lot of cases on the calendar before mine, I do my best to pay attention to them: it keeps me awake, it's educational on a number of levels, and I'm not going to be able to concentrate on my own case during other people's arguments (I prepare ferociously ahead of time instead). Today, I was rewarded with an interesting set of facts, which I believe went something like this:

Criminal conviction for drug possession. Defendant had jumped out of a still-running car and run through a series of backyards. He was eventually arrested some distance away (I did not hear any of the distances). A bag of drugs was found on the ground near a fence, which defendant had jumped over; the jumping was the only time the pursuing officer lost sight of defendant. It was a cold snowy day, and there were only two sets of footprints in the backyard, defendant's and the officer's. The bag was warm to the touch.

Is that sufficient evidence to convict defendant of possession? Recall that possession must be proved beyond a reasonable doubt.

(I think one of the justices said it would make an interesting law school test question.)

Then when I got home, I found myself with another circumstantial evidence question, which amused me. The faucet in the back wall of the house was on. A quick call to Chad confirmed that he hadn't left the water running for some reason, so I went out and turned it off. The faucet turned easily, and there were pieces of icicles on the ground around it. I immediately concluded that a falling icicle had hit the faucet in just the right way to turn it on—which is perhaps somewhat more improbable than the case I heard this morning, but since the stakes are so much lower, I am perfectly happy to accept it.

Do you all have any interesting examples of circumstantial evidence? Or want to weigh in on these examples?

(Note to self: find a "lawyerly" icon.)

Comments

[filkerdave.livejournal.com]

I have to say, if I were on a jury for the posession case, I would vote to convict based on that evidence. It may be technically circumstantial, but the circumstances make it entirely reasonable.

[kate_nepveu]

I should've been clearer: circumstantial evidence is perfectly permissible. (I once saw a fascinating presentation in the Manhattan DA's office about trying a murder case with no dead body. The two defendants were convicted, and I will probably remember their names the moment I go to bed.)

[kate_nepveu]

Sante and Kenneth Kimes. (Google is a wonderful thing: "mother son murder manhattan no body" and there it was.)

[prince-corwin.livejournal.com]

I think I would want to drill down into this notion of "warm to the touch" and how it was determined.

[kate_nepveu]

That I can't help with.

This is one of the tricky things about listening to other people's oral arguments: familiarity with the facts is assumed. I play a little game with myself, marking down on the calendar if I think the appeal is going to be granted or denied, and on one of the cases today I had to put a question mark, because the issues were highly factual and I didn't have enough context.

[desdenova.livejournal.com]

drill down

I'm sorry, I have to kill you now.

("Drill down on that" was one of the repeated-ad-nauseum bizspeak phrases from a horrible 2-day meeting I had back in November, and you just gave me a flashback.)

[montoya.livejournal.com]

Can you take that off-line?

[prince-corwin.livejournal.com]

You can't kill the already dead.
(I'm posting this from work.)

[kjn]

That can't die that forever works?

[doire]

Warm to the touch is a tricky idea.

I look for amber hidden amongst pebbles at the beach. A good distinguishing characteristic is that it feels "warm to the touch". But of course it's not, it's at the ambient temperature. It has a higher thermal resistance and lower thermal mass than the other pebbles, so the heat flow from your fingers is lower, and so, it feels warmer.

I'd expect a bag of drugs to feel warmer than surrounding snow or ground.

[kate_nepveu]

On thinking about this, I remember the phrase "not frozen" and am less sure about "warm."

Ah, the unreliability of eyewitness testimony!

[rachelmanija.livejournal.com]

I would have convicted on the warm bag case.

In the case where I was a jury member, we ended up deadlocking on two counts of possessing a stolen forklift and scissor lift. I felt that given that the property was in fact stolen, was found on a tow lot run by the defendant, was the sort of item that would be useful in his line of work, that other stolen property was also on the lot, that they had both been stolen right around the time when he took possession of the lot, that both were very valuable (so were unlikely to have been stolen and then immediately ditched, that he would have known their value due to his line of work, and that one of the lifts had been hotwired and its ID numbers scratched out, was sufficient to convince me beyond a reasonable doubt that he had either stolen it himself or he had at least known that it must have been stolen, if it had been on the lot before he took possession of it.

Exactly half the other jurors felt that it was possible that the lifts had been dumped on the lot prior to the defendants' possession of the lot, and that he had no idea where they came from.

[kate_nepveu]

That's an interesting one. Did the defendant testify?

[rachelmanija.livejournal.com]

No, he didn't. I was influenced in the matter of the forklifts by the overwhelming evidence that he was running a chop shop and possessed a stolen vehicle (which he was chopping), and we did convict on those counts; I figured that since he had definitely recieved one form of stolen property, and was running an illegal stolen car business, the odds that he would have not only innocently had stolen property abandoned on his lot, but also not know that it was stolen, were low. Personally, I think the lifts were on his property because he either personally stole them or had his associates steal them.

But there was definitely much less evidence linking him to the lifts than there was linking him to the car. For instance, he had been seen and recorded doing various things to the car, but no one testified that they had ever seen him doing anything with the lifts, so he theoretically could have not even known that they were there, though that's like me theoretically not knowing that I have a sofa in my living room.

[kate_nepveu]

though that's like me theoretically not knowing that I have a sofa in my living room

There are days . . .

But I see what you mean. Do you think it was a compromise verdict, explicitly or implicitly?

[rachelmanija.livejournal.com]

Yes, implicitly.

At the end we sent some questions to the judge (about a citizen's responsibility for stuff on his property that might not belong to him) and after answering them, the judge asked us one by one if we thought the answers meant we might be able to reach a verdict after deliberating some more. Since I was juror # 1, he asked me first. I said I thought it was possible. Then one by one, every other juror said, "No, no, absolutely not." While shooting vibes of loathing in my direction.

At that point the judge dismissed us.

[geniusofevil.livejournal.com]

wow, you have an interesting job

[kate_nepveu]

And those weren't even my cases!

[montoya.livejournal.com]

"You don't have to wonder," declared Encyclopedia. "Those are his drugs!"

How did Encyclopedia know the man had dropped the drugs? Turn to page 87 to find out.

Unrelatedly, shouldn't you have turned off the water to outside faucets for the winter?

[mmcirvin.livejournal.com]

Trapped in his own lie, Bugs Meany confessed to hiding the heroin in the stolen catcher's mitt.

[orzelc.livejournal.com]

Unrelatedly, shouldn't you have turned off the water to outside faucets for the winter?

Probably, but I forgot about it because it was so warm in the fall.

[kate_nepveu]

1) Hah;

2) It wasn't just warm in the fall, it was well over 50 F into December.

[montoya.livejournal.com]

We went to turn our water off, and... hey, we never turned it on last year. I guess we're not big into hoses?

[mmcirvin.livejournal.com]

I use circumstantial evidence frequently when trying to debug software problems. I've gotten particularly good at guessing the cause of a graphics bug just by eyeballing the crazy garbage on the screen.

It doesn't always work. If I can make intuitive leaps five or six steps ahead of what I can prove, I can often diagnose and fix bugs much faster than with a systematic approach to isolating the trouble--of course, I have to do some experiments to verify that I made the right guess. But every so often, I get burned by this approach, because I made a wrong assumption about how the code works or because a coincidence mimicked what I thought was significant. Then, I have to back up and proceed by more methodical baby steps, verifying every step in my deduction--and of course the whole process takes longer than if I had started with this approach in the first place. So there's an art to finding the optimum mix of provable deduction and intuitive induction from circumstantial evidence.

[kate_nepveu]

I used to find myself doing a lot of intuitive leaps when doing proofs or similar things--I could see how to get where I was going, but I couldn't have told you how.

[dlganger.livejournal.com]

I just read this out loud to a friend and he immediately responded, "No." When I asked why not, he pointed out that absent any fingerprint evidence, there's no way to tell whether the defendant or the officer dropped the bag. Enough room for reasonable doubt.

[kate_nepveu]

Credibility is traditionally almost exclusively for the jury to determine. I'll just point out that under this reasoning, no-one could ever be convicted of possession unless there was, say, photographic evidence of the defendant with the drugs before there was any contact with the police.

[dlganger.livejournal.com]

Or more than one witness. There are people who do reason exactly in this fashion -- that when you have one person's word against another's, you don't have reason to give either precedence.

[lundblad.livejournal.com]

I wouldn't convict on the drugs. A cop saying the bag was "warm to the touch" is a ridiculous piece of non-evidence. (And I've been on a convicting jury, so I'm not just a softie!)

[prince-corwin.livejournal.com]

That's why I wanted more evidence.

It might sound like I'm going all CSI (how long would a bag of drugs at inner coat pocket temperature stay warm on a given day...?) but really, I'm astonished that cops in the middle of a foot pursuit would IMMEDIATELY stop and collect thermal data on a bag of drugs, rather than continue on foot and try to catch the guy.

I've have had a field day with defense questioning on that one.

[houseboatonstyx.livejournal.com]

That's my take: Sez who? Who sez the bag was warm? Who sez there were only two sets of tracks?

I'd want a lot of questions answered, and there might be good reasons why this was the only evidence (if it was the only evidence). But in this day and age, there ought to be fingerprints or some kind of DNA evidence.

There's a lot of difference between this case and your icicle. You saw the evidence for yourself. No one had any motive to misinterpret it.

[prince-corwin.livejournal.com]

I think the issue of credibility is a related but logically distinct issue.

I have no idea how much credibility a typical jury is willing to extend to a police department, or what that police department's record happens to be. But it's easy for me to imagine a jury accepting the statements that there were only two sets of tracks. It's easy for me to imagine there being multiple police witnesses to back that up and I can even imagine that the issue of tracks might have come up often enough that someone would have the presence of mind to take a picture for documentary evidence.

Where I have difficulties is believing that the department is *so* methodical that they applied that sort of mentality to the temperature of a bag in the snow. And documented it. Accurately. Fast enough for it to be meaningful. Doire makes the very good point that different materials have different thermal conductivities, and the idea of "warm to the touch" is pretty ludicrously subjective and wishy-washy.

It strikes me as the sort of embellishment that came up while the police were trying to figure out hwo to strengthen their case after the fact-- to the point that I think the case actually sounds weaker for its inclusion.

[kate_nepveu]

As I said above, I'm now pretty sure the phrase "not frozen" was used and less sure about "warm."

No mention if it was actually snowing at the time.

[kate_nepveu]

Multiple police officers testified that there were only two sets of tracks (pursuing officer; two different arresting officers; maybe some others as well).

Fingerprints or DNA doesn't bother me: it's cold out, I wear gloves when it's cold.

I agree with prince_corwin that this is fundamentally a credibility issue.

[prince-corwin.livejournal.com]

So does this put me on your, "I want him on my jury," list, or your, "Keep him the hell away from my jury," list?

[kate_nepveu]

I don't try jury cases any more. =>

[prince-corwin.livejournal.com]

Dodge.

[kate_nepveu]

Depends on the case, but probably I would want you.

And that's not a dodge.

[kate_nepveu]

They didn't, they went back after the guy was arrested.

I thought I'd said that, but I obviously hadn't. Sorry.

[houseboatonstyx.livejournal.com]

If they found the bag when they went back after the arrest, then the bag could hardly have been still warm from body heat. "Not frozen TO THE GROUND" would make a lot of sense, or as someone says, how much snow was on the bag -- but that makes a longer window of time it could have lain there (depending on weather). "Not frozen" alone doesn't make much sense unless it was some liquid kind of drug.

Let's see. Your icicle had opportunity and means, and doesn't need a motive. The guy also had opportunity and PRESUMABLY had means (ie the bag); either he had a negative motive or was trying to dispose of the evidence. Your coincidence was the existence of an icicle in the right place, but that's already taken care of: you found the remains.

Giving the cops full credibility, then the coincidence factor here is how common it is for bags of drugs to be lying around in that neighborhood, which is not already taken care of.

I'd want to know a lot of things before making a decision, including whether the guy was seen carrying the bag in his hand or whether it was presumably in his pocket. Whether he'd passed places where he could have hidden the evidence if he were trying to dispose of it. Etc.

Hm, another point. If they found the bag when they came back, and it WAS still warm, the defense attorney could use the warmth as evidence that someone else had dropped it after the chase had passed by. Didn't the accompanying cops observe two sets of tracks and then follow along leaving their own tracks on top? If they did, then there's a window for someone else to have dropped the bag before the cops came back.

Of course the idea of a second person being there at just the right time to drop the bag is like the idea of another person turning on your faucet: unlikely, unnecessary.

[kate_nepveu]

This is why it's a good law school hypothetical!

[theweaselking.livejournal.com]

Am I the only one who thinks that jumping out of your still-running car and sprinting away from cops, leaping fences, until you're dragged down, is the kind of thing that DOES tend to indicate that the drugs are yours?

That's the kind of thing that makes "the drugs were there to begin with" and "the drugs belonged to the cop" seem less likely, to me.

(More important than the temperature of the drug bag, I'd want to know how much snow was on them. If it's a cold snowy day, that should tell you how long the drugs were there before the cop found them.)

[kate_nepveu]

Not clear if it was snowing.

You could say that the defendant knew the cops were going to try and set him up; one could imagine a case where the local cops were known to be so corrupt that this would have some plausibility. I don't know anything, either good or bad, about the reputation of this particular police force.

[theweaselking.livejournal.com]

But in that case, I would expect that explanation to come up. If I'm trying to establish reasonable doubt about whether the drugs found in this situation are mine, I would definitely want to make sure the jury knew I had a motive for running that wasn't "I was carrying drugs".

[kate_nepveu]

Remember, I was only hearing a very sketchy version of the facts; and there are often sound reasons for the defendant not to testify, regardless.

All the same, I didn't hear anything that pointed explicitly to a set-up defense.

[prince-corwin.livejournal.com]

I recall there was actually a Supreme Court case that touched on this within the last few years, but I don't recall what the decision was. The crux of the issue was whether or not running from the police on sight was a reasonable action or an indicator of guilt.

[kate_nepveu]

http://supct.law.cornell.edu/supct/html/98-1036.ZS.html

To be extra-technical about it, it's whether it gives rise to a reasonable suspicion justifying an "investigatory stop."

Here, the defendant was observed speeding and making an illegal turn, so they had reason beforehand to stop him (I left that out because it didn't seem relevant to the possession issue. That may've been a mistake; I was very tired last night.).

[houseboatonstyx.livejournal.com]

Guilt of what? It might be evidence that he was guilty of something, or thought he was, or thought the police might set him up, or might beat him up....

Whether flight is evidence of guilt of whatever the police eventually charge him with, is another question.

[kate_nepveu]

See prior comment. It's whether it gives reasonable suspicion to briefly detain someone for an investigatory stop & frisk.