Some witnesses may testify about matters that they did not personally see or hear. Yet, certain inferences may be drawn from their testimony. This is referred to as circumstantial evidence.
Circumstantial evidence can sometimes be as compelling as direct evidence. Every Judge in Canada seems to use the same example of circumstantial evidence when explaining it to a jury. Perhaps it has been used so often because Judges feel that it is practical and works when explaining the difference between direct and circumstantial evidence. Here is how most Judges explain circumstantial evidence to jurors:
A witness might say that he or she observed a woman enter the courthouse lobby today wearing a raincoat and carrying an umbrella; both dripping wet. If you believe that witness, you might conclude that it was raining outside at the time the woman entered the courthouse, even though the evidence suggesting that it was raining at the time was indirect. The witness was not outside and did not personally observe it raining. But the witness did see the raincoat of the woman who entered the courthouse at that time, and, her umbrella dripping water, and, from those observations, the witness might infer that it was likely raining at the time that woman entered the courthouse. Indirect evidence is circumstantial evidence. Sometimes circumstantial evidence can be just as compelling as direct evidence.
Circumstantial evidence is evidence providing a basis for an inference about a fact in dispute. It is provided by a witness who did not actually see, hear or experience the fact. The witness did, however, experience an event or occurrence, thought to be relevant to the case, and from which the Judge or jury may or may not draw the inference that was drawn by the witness. Circumstantial evidence may emanate from the witness’s testimony under oath as to what they saw, heard or experienced. But the witness’s inferences may not be the inferences drawn by the Judge or jury.
Circumstantial or indirect evidence is any item of evidence, whether testimony or exhibit, other than the testimony of an eyewitness to a fact in issue at the trial. The witness may have deduced what has occurred by drawing an inference from what the witness saw or heard. Inferences may be drawn logically and reasonably from a set of facts such as the example of the raincoat and umbrella observed to be dripping wet. The inference drawn by the witness is often not the only inference possible. Judges and jurors are asked to consider the circumstantial evidence, its possible inferences, and determine its reliability. As to the fact or facts observed and whether the inference proffered is the only reasonable inference to be drawn becomes a question for the trier of fact to determine.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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