Geoff Symon's Forensics For Fiction Flubs – Circumstantial Evidence

I'm so excited to have uber amazing Geoff Symon as a guest. I attended several of his workshops at #RW2018 and found him vastly entertaining while giving us serious information. Please welcome Geoff. 

Forensics For Fiction Flubs – Circumstantial Evidence

 Thanks, L.A., it's a pleasure to be here today.

One of the most frequently misused terms from the investigative community by writers of entertainment is "Circumstantial Evidence.” Quotes like “it’s circumstantial at best,” “you brought me in here for this circumstantial case? My client will walk!” and “All you have is circumstantial evidence! You got nothin’!” express a belief that circumstantial evidence is weak, inapplicable and useless in a case. The truth is it’s the exact opposite.

Circumstantial evidence is just that – Evidence, and therefore by definition, it works to prove or disprove an allegation.

There are two main categories of evidence: Direct and Circumstantial. Direct evidence is an unquestionable statement of fact. It is evidence that requires no interpretation because the evidence itself (the statement) tells the story. Legally, what that boils down to is an eyewitness account of the crime. In the digital age, this can also mean a video recording of the crime. 

So, when a witness testifies that she saw the suspect shoot the victim with a gun, there is no inference that needs to be made. The suspect shot her. The only thing a defense team can do is try to discredit the testimony as an outright lie or misinterpretation. But, there is no wiggle room as far as what the account tells. To be clear, not all eyewitness accounts are counted as direct evidence. The description must be a first-hand account of the crime itself. If this witness saw the suspect in the vicinity of the shooting at the approximate time it occurred, that would fall into the circumstantial category.

Circumstantial evidence, then, is everything else that is not an eyewitness/video account. Officially, it is evidence that requires some level of inference.

For instance, in the example above where the witness simply saw the suspect in the area, this requires us to take extra steps in our minds to put the gun in his hand in order to conclude he shot the victim. Seems pretty flimsy as far as evidence goes, doesn’t it? Except there’s so much more included in this category. Fingerprints, footprints, murder weapons and, yes, even DNA are all considered circumstantial evidence. They all require you to create the story in your mind to put it all together, unlike direct eyewitness testimony that tells the story for you. But, I think we can all agree that a case that has fingerprints, DNA, and possession of the murder weapon is a VERY strong case. And yet, it’s merely a circumstantial case.

Many argue that direct evidence is stronger than circumstantial evidence, but the concession must be made that circumstantial evidence can be extremely powerful on its own. The reality of the world we live in is the vast majority of crimes don’t have an eyewitness or a video capture. So if circumstantial evidence was deemed to be ‘useless’ then hardly any wrongdoing would be solved. The U.S. legal system accommodates this by having a “Burden of Proof” requirement. In layman’s terms this simply establishes how much circumstantial evidence is needed for us all to agree this suspect is guilty. There are different levels of the Burdens of Proof, depending on the severity of the infraction. 

For example, in civil cases the Burden of Proof is a Preponderance of the Evidence, which means, does the evidence show the suspect is more likely guilty than not? It’s a 50% rule. If the evidence can make the judge feel 51% certain the suspect did it, he’s guilty. In criminal cases, however, the Burden of Proof becomes much greater. It’s no longer the “most likely” standard, but instead rises to Beyond a Reasonable Doubt. This means that an average person would have no doubt that the suspect is guilty. If there is a legitimate doubt whether the suspect did the crime, then he cannot be found guilty. This is much more difficult to prove than a Preponderance of the Evidence case.

Using the Beyond a Reasonable Doubt standard in a circumstantial evidence case, if the only proof the prosecution had was the suspect was seen arguing with the victim earlier in the day, would not be enough to erase the doubt that he was involved in the shooting.

People have arguments all the time - that does not mean they shoot each other. Likewise, not all shootings are because the two argued earlier that day. But when you start adding other circumstantial evidence so that not only were they seen arguing early in the day, but gas receipts show his car was out at 3AM (around the time of the shooting), his footprints were found outside her window and his fingerprints were found on the gun, you now have a very strong case against this suspect. Each of these pieces of the evidence, however, is still only circumstantial evidence. All of it works together to make a case just as strong as any direct evidence investigation.

So be careful using dialogue like, “it’s just a circumstantial case” in your books, because circumstantial evidence is what often brings the bad guys to justice.

Bio:

Geoff Symon is a 25-year federal forensic investigator, teacher, and consultant. For the past several years, he has shared his expertise by teaching authors about real-life forensics through lectures, online courses, and his Forensics for Fiction series of books.  

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