Since the beginning of last week my partner, Blerina Jasari, and I have been involved in a jury trial in federal court in Washington, D.C. During the trial, a significant hole emerged in the government’s case. One of the elements the government must prove to convict our client is that he knew the place where he was located had been “restricted” at the time he was there—essentially a trespass statute. The government had offered evidence that the property was posted with paper signs on snow fencing and “bike racks” at 6:00 am in the morning. On cross examination, the government’ s sole witness on notice agreed that the snow fencing, bike racks and signs were gone by 11:00 a.m. The first evidence of our client being on the premises consists of a video of him being there at 2:30 p.m.
The government has sought to overcome this shortcoming by arguing “circumstantial evidence”. According to the government, our client simply must have known the grounds were restricted, inviting the jury to use its “common sense”. It is an appeal I have seen often over the years, and defense lawyers, particularly young lawyers, fail to attack this argument aggressively. We must be careful to dissect the “circumstantial evidence” the government proffers to ensure it leads only to the conclusion the government wishes to make. We also need to argue that the evidence, if ambiguous, does not lead to proof beyond a reasonable doubt.
This brings me to a discussion I had two weeks ago with a police officer and a prosecutor in Pennsylvania. I try to stay out of state court whenever I can, but, as the facts of this case will show, not hard enough.
The client faces multiple white-collar allegations across the Commonwealth, but this particular case was different. It involves the intentional “abuse” of a snake—a third degree felony in Pennsylvania (or so a police officer in Central Pennsylvania thinks). It seems that the defendant owned a boa constrictor, hereafter known as the “decedent”. The precise age and origins of the decedent were unknown, but he (my apologies, but the sex of the decedent is also unknown, so I am defaulting to “he”—we can deal with pronouns at some other point if we have to) was known to reside in an aquarium owned by the defendant. At least two credible witnesses will testify that the decedent died in his aquarium. The carcass should have been thrown in the trash, but it was not. Instead it decayed in the aquarium until the landlord called the police.
The officer quickly ascertained that the animal in the aquarium was a snake and that it was dead, “decomposed” as he explained the situation. He then filed a felony criminal complaint and had an arrest warrant issued. My client was duly arrested and incarcerated for this snakicide.
To confess, I did not take this particular charge seriously. After all, the definition section of the Animal Cruelty Statute does not include “snake” as an “animal” within the meaning of the statute. Also, I felt confident that once the assistant district attorney and the police officer understood the facts of the case, they would dismiss the charges. I was wrong.
First, the assistant district attorney explained to me that she was not the “animal” assistant district attorney and therefore not the person to talk to about dismissal. Apparently, there is an assistant who is dedicated to the prosecution of animal cases. The police officer then told me that he had talked to that assistant who told him definitely that a snake is an animal. The concept of a statutory definition seemed beyond him.
I then decided to switch tactics and ask the police officer what evidence he had that the snake was abused. He told me it was an obvious circumstantial evidence case based upon the fact that the snake died, bolstered by the fact that the defendant had failed to provide the decedent with a proper funeral. I then asked him if he knew when the snake died. He said he did not. I asked him if he knew how the snake died. He said he did not. I asked him if a necropsy had been performed on the snake—he said he didn’t know what that word meant.
I then said, “so you have no evidence to prove that the snake was abused”. He then replied “and you can’t prove it wasn’t abused either”. I then said, “but the Commonwealth has then burden of proof”. The police officer gave me a puzzled look like I was using some tricky lawyer language that he didn’t understand. I turned to the prosecutor, and she said, “will your client plead to a misdemeanor?” I said “no”.
We are now headed to trial on this matter, although I believe the judge will dismiss the case if reason doesn’t prevail in the district attorney’s office. But as I left, the police officer said to me, “you know, circumstantial evidence is just as good as direct evidence”. I stared at him thinking that not more than a month ago, I had been at a meeting in this county concerning the opioid crisis where the district attorney and the chief of the very department this officer belonged to explained how they were overwhelmed by the crisis and lacked the resources to properly combat it. Perhaps if they diverted the resources used to combat suspicious snake deaths and diverted them to trying to solve a real problem, they might accomplish something good, but I said nothing.
Again, maybe I have simply been around too long.
The Quality of Circumstantial Evidence.
The meaning of circumstantial evidence depends, to some extent, on an application of logic. Perhaps that is too big a word. Let’s go with common sense. Circumstantial evidence is evidence that points to the existence of some fact. Wet grass, rain drops on cars, and people folding their umbrellas might, for example, be evidence that it recently rained. In the real world, circumstantial evidence is frequently used to prove intent in a fraud case. The fact that the defendant asked a witness to lie, for example, would indicate the defendant knew the truth would be harmful to him or her.
But circumstantial evidence has its limits and frequently runs afoul of Federal Rule of Evidence 401: “Evidence is relevant if. . .it has a tendency to make a fact more or less probable than it would be without the evidence; and . . .the fact is of consequence in determining the action”. This same rule applies to both direct and circumstantial evidence. The question that should always be asked is: does this evidence make a fact more or less probable?
Often times evidence offered by the government does not make a disputed fact more or less probable. Take the example of the animal abuse case involving the snake. Does the snake’s death make it more or less probable that the snake was abused? Well, the unfortunate fact is that all snakes die even though the vast majority of snakes are not abused. All humans die as well, but the discovery of a dead human is not circumstantial evidence that a murder occurred. Without knowing a cause of death, the fact that a person died is utterly meaningless in establishing whether it was a homicide or not.
Consider this scenario: the witness hears a gunshot in a house. The witness runs to the house and sees Bob leaving the house, a revolver in his hand and smoke coming out the barrel. The witness then enters the house and sees the victim lying on the ground face up, a bullet hole in his chest. This would be circumstantial evidence that a murder occurred and that Bob committed the murder.
Do you see the difference between the dead snake scenario and the dead human in the preceding paragraph? If not, it’s probably time to quit being a lawyer and start looking for a position in the snake law enforcement division of a local municipal police department.
We as defense counsel need to be more aggressive in pressing relevance objections. Calling a piece of testimony “circumstantial evidence” does not relieve the government of its burden to establish the relevance of the testimony. The government will often introduce evidence of a witness’s wealth or the fact that they owned a private jet or owned an expensive piece of art. What is the issue in the case? If it’s a fraud case, the defendant’s lifestyle is not “circumstantial evidence” of fraud or any of the elements of the fraud. Sometimes the government will offer this evidence to show motive under Federal Rule of Evidence 404(b), but the issue should be: can the government actually link the specific property to any motive. If the evidence is just hanging out there, it is not relevant to any issue in the case.
Note that even if evidence does have some remote probative value, it can nevertheless be deemed inadmissible under Federal Rule of Evidence 430.
Understanding the relevance of evidence begins with understanding both the elements of the offense charged as well as the elements of any defense raised. Those two understandings should be like walls that separate relevant from irrelevant evidence. So, the alleged victim in a fraud case had a dog named Snoopy. Who cares? It’s irrelevant. So, the defendant didn’t visit his mother in the nursing home before she died. Who cares? It’s irrelevant. In a wire fraud case (See Understanding Mail and Wire Fraud), there are specific elements the government must prove, and those elements establish the scope of admissible evidence. Was a false statement made? Was it material? Was it relied upon? Was there a loss? Was there an “intent to defraud”? Were the “wires” used? If evidence is offered that doesn’t go to one of these elements, it is likely irrelevant.
The Fear of Over-Objecting.
Sometimes, attorneys will forego valid objections because they fear they will antagonize a jury or a judge. This is a legitimate consideration. Objecting too often, particularly when the objections are overruled, can antagonize a judge or jury and distract from an attorney’s presentation. Nevertheless, the decision to forego an objection should be as calculated as the decision to object, although different considerations come into play. For me, I don’t object if I think the evidence will come in anyway or if I feel the evidence is harmless (often times, however, one can only determine that evidence is harmless if he or she knows what the government is ultimately going to do with it). When in doubt, however, one should object to inadmissible evidence.
One way to avoid over-objecting, especially for less experienced lawyers, is to prepare a trial brief outlining the elements of the offense and any relevant defenses and then address how anticipated testimony will fit in or not fit into the case. Another mechanism is the motion in limine, which will at least alert the trial judge to an issue.
Circumstantial evidence can be used by defense counsel just as it is used by prosecutors, but it must be real evidence that establishes some fact. It must be relevant, and it must not be ambiguous.
Take the testimony: “I saw the defendant leave in his car, and this is a picture of the parking space where the car was parked taken after the car left”. A prosecutor might offer this sort of evidence, but is it really circumstantial evidence? The short answer and the correct answer is “no”. It is a photo of an empty parking space. I once had a prosecutor attempt to admit this type of evidence. It is not circumstantial evidence. It is irrelevant, and it should be deemed inadmissible.
Finally, if the government is relying upon circumstantial evidence to prove an element of an offense, that evidence must establish guilt beyond a reasonable doubt. The government should not be permitted to lower the burden of proof by claiming “circumstantial evidence”. Reasonable doubt is the defense attorney’s friends, and the instructions used by the court should be repeated as often as is necessary in the defense argument. Circumstantial evidence never relieves the government of its burden of proving all elements of the offense beyond a reasonable doubt.