Circumstantial Evidence
Feb. 27th, 2007 09:36 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png)
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.)
no subject
Date: 2007-02-28 05:08 am (UTC)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.
no subject
Date: 2007-02-28 07:16 am (UTC)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.
no subject
Date: 2007-02-28 04:41 pm (UTC)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.
no subject
Date: 2007-02-28 04:58 pm (UTC)No mention if it was actually snowing at the time.
no subject
Date: 2007-02-28 04:57 pm (UTC)Fingerprints or DNA doesn't bother me: it's cold out, I wear gloves when it's cold.
I agree with
no subject
Date: 2007-02-28 07:33 pm (UTC)no subject
Date: 2007-02-28 07:41 pm (UTC)no subject
Date: 2007-03-01 12:09 am (UTC)no subject
Date: 2007-03-01 12:13 am (UTC)And that's not a dodge.
no subject
Date: 2007-02-28 04:56 pm (UTC)I thought I'd said that, but I obviously hadn't. Sorry.
no subject
Date: 2007-02-28 07:45 pm (UTC)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.
no subject
Date: 2007-03-01 12:31 am (UTC)