Circumstantial Evidence in California Criminal Law

Circumstantial evidence . . . which is defined as evidence that only indirectly proves that a certain fact is true . . . is a legitimate form of evidence in California criminal courts.1. Many guilty verdicts are based on circumstantial evidence.

Definition of circumstantial evidence

The phrase "circumstantial evidence" is probably familiar to anyone who's seen a cop show or a courtroom thriller. But not many people understand the legal definition of circumstantial evidence . . . or how circumstantial evidence may be used in California criminal jury trials.

In the context of California criminal law, circumstantial evidence . . . which is also known as indirect evidence . . . means evidence that does not directly prove that the defendant is guilty of the charged crime. Instead, it is evidence of another fact . . . from which a person could then reasonably conclude that the defendant is guilty.2

One of the best ways to understand circumstantial evidence is to contrast it with direct evidence. Direct evidence is evidence that directly proves the key fact.3

Some examples of direct vs. circumstantial evidence are:

  • William, a witness, walks into a courtroom and testifies that it is raining outside. That is direct evidence that it is raining.

    But if Will testifies only that he saw people walk into the courthouse wearing raincoats and with wet hair, that is circumstantial evidence that it is raining.
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    • Vicki, a robbery victim, testifies in a courtroom that a man named Scott is the one who robbed her. That is direct evidence that Scott is guilty of robbery.

      But if Vicki testifies only that a man wearing a red shirt robbed her . . . and another witness testifies that he saw Scott running away from the scene of the robbery wearing a red shirt . . . that is circumstantial evidence that Scott is guilty of robbery.
  • Anna is charged with embezzling funds from her employer, a man named Brad. One of Anna's coworkers signs a statement confessing that she helped Anna with the embezzlement. This is direct evidence that Anna is guilty of California embezzlement.

    But if Brad, Anna's boss, testifies only that funds started disappearing from his company account right around the time he hired Anna -- and Anna's neighbor testifies that Anna started driving a flashy new car not long after that -- that is circumstantial evidence of Anna's guilt.
How circumstantial evidence is used in California criminal cases

Some people mistakenly believe that circumstantial evidence may not be used to prove that a defendant is guilty of a crime. But this is incorrect.4

In fact, there is no California evidence rule that prevents the use of circumstantial evidence in a criminal case. In fact, circumstantial evidence carries the same weight as direct evidence for proving a defendant's guilt or innocence.5

In order to help you better understand circumstantial evidence in California law, our California criminal defense attorneys will address the following:

1. The Legal Definition of Circumstantial Evidence
2. The Use of Circumstantial Evidence in California Criminal Cases
3. Legal Defenses Against California Criminal Charges Built on Circumstantial Evidence
4. Circumstantial Evidence and Related Issues in California Criminal Law

4.1. Alibi as a legal defense

4.2. Mistaken eyewitness identification

4.3. Motion to suppress evidence

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. The Legal Definition of Circumstantial Evidence

Circumstantial evidence is also known as "indirect evidence."6

Simply put, the California legal definition of circumstantial evidence is evidence that doesn't directly prove a key fact. Instead, circumstantial evidence is evidence of another fact from which a person can then reasonably infer . . . or conclude . . . that the key fact is true.7

Direct evidence, on the other hand, is evidence that directly proves the key fact.8

This distinction may sound simple. However, it can be a bit more complicated to apply in practice.

The distinction between direct and circumstantial evidence

Let's take a hypothetical trial for California murder. The victim is a man named Pierce who was found strangled in his apartment. The suspect is an ex-girlfriend of Pierce's named Sally.

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The prosecution offers five pieces of evidence to support the theory that Sally is the murderer. Can you tell which of these are direct evidence? Which ones are circumstantial evidence?

  1. Testimony from a friend of Sally's who claims that Sally confessed to her that she killed Pierce;
  2. Evidence that Pierce was strangled with a type of rope frequently used in rodeos . . . and the fact that Sally is an amateur cowgirl who sometimes performs in rodeos;
  3. Evidence that Sally's fingerprints were found in Pierce's apartment;
  4. Testimony from a neighbor of Pierce's saying that he saw a woman he later identified in a lineup as Sally leaving Pierce's apartment on the night of the murder; and
  5. Testimony from another neighbor of Pierce's who claims he saw a woman in a leather jacket leaving Pierce's apartment on the night of the murder . . . joined with testimony from Sally's friend that Sally frequently wears a leather jacket.

It turns out that the only piece of direct evidence in the prosecution's case is Item #1—Sally's friend's testimony that Sally confessed to the murder. This testimony . . . if it is true . . . directly supports the conclusion that Sally is the killer.

But the other items of evidence prove things that . . . if true . . . only indirectly support the conclusion that Sally is the killer.

Item #2 just proves that the murder weapon is something that Sally might have had in her possession.

Items #3, 4, and 5 only tend to prove that Sally was in Pierce's apartment on the night of the murder . . . not that she killed him.

From these facts -- that the murder weapon is something Sally had access to, and that Sally was in Pierce's apartment on the night of the murder -- a jury could conclude that Sally killed Pierce.

But none of those four pieces of evidence, even if true, necessarily leads to that conclusion. That is what makes it circumstantial evidence.

2. The Use of Circumstantial Evidence in California Criminal Cases

California law does not draw any distinction between direct evidence and circumstantial evidence. They are entitled to equal weight in proving a defendant's guilt or innocence.9

Circumstantial evidence of criminal intent

Some California crimes require the prosecution to prove not only that the defendant did a particular act, but also that the defendant had a particular mental state or intent. (These crimes include

  • murder, in which the defendant needs to have acted with "malice aforethought,"10
  • California burglary, for which the defendant needs to have intended to commit a felony or theft,11 and
  • mail fraud, where the defendant needs to have intended to deceive or defraud someone else.12 )

For crimes like these, circumstantial evidence may also be used to prove that the defendant had the specific intent necessary to be found guilty.13

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Example: Daniel is caught red-handed trying to break into someone's house. In order to convict him of burglary, the prosecution needs to show that he intended to steal items from the house once inside.14
The prosecution introduces evidence that Daniel drove to the house in a rented moving van . . . which he could have used to haul away items stolen from the house. The prosecution also introduces testimony from a friend of Daniel's who says that Daniel had been talking about desperately needing money.
These two pieces of evidence are circumstantial evidence that Daniel intended to steal from the house after he entered it.

Limitations on circumstantial evidence

Even though circumstantial evidence gets the same weight as direct evidence in proving a criminal case,15 there are still limitations on a jury's ability to convict someone based on circumstantial evidence.

First of all, before a jury can conclude that a defendant is guilty based on circumstantial evidence, the prosecutor must prove every fact necessary for a finding of guilt beyond a reasonable doubt.16

Example: Let's return to our example of Sally from Section 1 above.
Sally is accused of strangling Pierce in his apartment. The circumstantial evidence offered by the prosecution includes testimony from two witnesses who claim they saw her -- or someone dressed like her -- leaving Pierce's apartment the night he was killed.
BUT let's say Sally's criminal defense attorney pokes holes in that testimony. Sally and her attorney introduce evidence that one of the eyewitnesses has terrible eyesight . . . and the other has a history of pathological lying.
Because of this, the jury may not be convinced beyond a reasonable doubt that Sally was even at Pierce's apartment that night. If they are not convinced of this, they should not convict her.

Second, before a jury can convict a defendant based on circumstantial evidence, the jury must be convinced that the only reasonable conclusion they can draw from the circumstantial evidence is that the defendant is guilty.17

In other words, if there is any other reasonable conclusion that might be drawn from the circumstantial evidence, the defendant should not be convicted of the crime. However, any alternative conclusion has to be "reasonable."18

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Example: Let's return to our example of Sally from Section 1 above.

The circumstantial evidence that Sally is the one who strangled Pierce includes:

1) the fact that the murder weapon is a kind of rope she uses,
2) testimony from Pierce's neighbors that she may have been at his apartment the night of the murders, and
3) her fingerprints in Pierce's apartment.
This evidence does point to the conclusion that Sally murdered Pierce. But that is not the only reasonable conclusion that the evidence supports.
For example, it could be that Sally simply visited Pierce the night of the murder, bringing a piece of her rope with her, and then went home, leaving behind the rope. The real murderer then could have entered the apartment and strangled Pierce with the rope Sally left behind.
At Sally's trial, her criminal defense attorney presents this theory to the jury . . . and reminds them that they can't convict Sally as long as this theory is also reasonably supported by the evidence.
3. Legal Defenses Against California Criminal Charges Built on Circumstantial Evidence

A large number of California criminal cases are built mostly or entirely on circumstantial evidence. And sometimes defendants are found guilty only on the basis of circumstantial evidence.19

But -- even though California law requires juries to give the same weight to circumstantial evidence that they do to direct evidence20 -- in reality it can be harder for prosecutors to get a guilty verdict when circumstantial evidence is all they have.

For example, some commentators feel that the not-guilty verdict for Casey Anthony . . . a Florida woman accused of killing her daughter . . . was due to the fact that the prosecution's case was built entirely on circumstantial evidence.21

Potential legal defenses against criminal charges based on circumstantial evidence include:

The circumstantial evidence supports reasonable conclusions other than guilt.

As we discussed above, a jury may not render a guilty verdict based on circumstantial evidence as long as that evidence could also reasonably support the conclusion that the defendant is innocent.22

As Newport Beach criminal defense attorney Neil Shouse23 puts it:

"It's a rare case indeed in which the only logical conclusion to be drawn from circumstantial evidence is that the defendant is guilty. A good criminal defense attorney can make the argument to the jury that it's also possible that the defendant is just a person who was in the wrong place at the wrong time . . . not a criminal."

The circumstantial evidence is not reliable

Every fact that supports a conclusion of guilt (including facts that are derived from circumstantial evidence) needs to be proven beyond a reasonable doubt.24 But evidence can be unreliable for all sorts of reasons.

Perhaps eyewitness testimony comes from someone who has a history of being unreliable, or who bears a grudge against the defendant. Maybe forensic evidence is presented that relies on scientific methods that haven't fully proven themselves yet.

If any fact in the logical chain is not proven by evidence that is reliable beyond a reasonable doubt . . . then the chain leading to a conclusion of guilt is broken . . . and the jury is not supposed to convict based on circumstantial evidence.25

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4. Circumstantial Evidence and Related Issues in California Criminal Law

4.1. Alibi as a legal defense

A common type of circumstantial evidence is eyewitness testimony or other evidence that you were near the scene of the crime when it occurred.

And one of the best ways to counter this circumstantial evidence is with evidence that you were actually somewhere else ... the legal defense of alibi. If you present an alibi defense -- and there is any reasonable doubt that you were actually present when the crime was committed -- then you are not guilty of that crime.26

4.2. Mistaken eyewitness identification

Because eyewitness testimony putting you near the scene of the crime is such a common form of circumstantial evidence in California criminal cases, mistaken eyewitness identification is often an important issue in circumstantial evidence cases.

Eyewitness identification of a culprit -- in a pretrial lineup, for example -- is notoriously unreliable. It may even be the leading cause of wrongful convictions in the United States.27

If you are charged with a crime based in part on an eyewitness identifying you as having been near the scene of the crime, you and your attorney may be able to debunk this so-called "evidence."

4.3. Motion to suppress evidence

Any evidence – circumstantial or direct – may have been wrongfully obtained. When this is the case, a California motion to suppress evidence is an important tool.

For example, if circumstantial evidence was obtained through an unlawful or unreasonable search or seizure, your criminal defense attorney may file a motion under Penal Code 1538.5 PC.28

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If you or loved one is charged with Penal Code 1538.5 PC circumstantial evidence and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Legal References:

  1. Judicial Council of California Criminal Jury Instructions ("CALCRIM") 223 – Direct and Circumstantial Evidence. ("Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself. For example, if a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining. Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may logically and reasonably conclude the truth of the fact in question. For example, if a witness testifies that he saw someone come inside wearing a raincoat covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it was raining outside.")
  2. See same.
  3. See same.
  4. See M. Alex Johnson, 'Circumstantial' – the Scarlet C?, NBCnews.com, Apr. 21, 2003.
  5. CALCRIM 223 – Direct and Circumstantial evidence. ("Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.")
    See also People v. Lim Foon, (1915) 29 Cal.App.270, 274. ("The common notion with respect to the proofs in criminal cases is that a stronger case should be made before a conviction is justified where, for a conviction, sole reliance is placed upon evidence of purely a circumstantial character. This is, of course, an erroneous notion, the true rule being that the degree of proof necessary to a conviction is precisely the same whether the proof relied upon for a conviction be direct or circumstantial.")
  6. CALCRIM 223 – Direct and Circumstantial evidence, endnote 1, above.
  7. See same.
  8. See same.
    See also Evidence Code 410 EC – Direct Evidence Defined [contrast with circumstantial evidence]. ("As used in this chapter, "direct evidence" means evidence that directly proves a fact, without an inference or presumption, and which in itself, if true, conclusively establishes that fact.")
  9. CALCRIM 223 – Direct and Circumstantial evidence, endnote 5, above.
  10. Penal Code 187(a) PC – Murder defined [may be proved by circumstantial evidence]. ("(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.")
  11. Penal Code 459 PC – Burglary [may be proved by circumstantial evidence]. ("Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the [California] Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary.")
  12. Miller v. Yokohama Tire Corp., (9th Cir. 2004) 358 F.3d 616, 620. ("To allege a violation of mail fraud under § 1341, it is necessary to show that . . . (3) the defendants did so with the specific intent to deceive or defraud [which may be shown by circumstantial evidence].")
  13. CALCRIM 225 – Circumstantial Evidence: Intent or Mental State. ("A[n] (intent/ [and/or] mental state) may be proved by circumstantial evidence.")
  14. Penal Code 459 PC – Burglary [may be proved by circumstantial evidence], endnote 11, above.
  15. CALCRIM 223 – Direct and Circumstantial evidence, endnote 5, above.
  16. CALCRIM 224 – Circumstantial Evidence: Sufficiency of Evidence. ("Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.")
  17. See same. ("Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.")
    See also People v. Ybarra, (2007) 156 Cal.App.4th 1174, 1187. ("Implicit in Ibarra's argument is the assumption that circumstantial evidence and direct evidence are similarly situated, but that is not so. Circumstantial evidence involves a two-step process -- first, the parties present evidence and, second, the jury decides which reasonable inference or inferences, if any, to draw from the evidence -- but direct evidence stands on its own. So as to direct evidence no need ever arises to decide if an opposing inference suggests innocence. ")
  18. See same.
  19. See Thomas J. Gardner et al., Criminal Evidence: Principles and Cases (2010), at 71. ("In most criminal cases, the government uses a combination of direct evidence and circumstantial evidence. However, in some cases, circumstantial evidence alone is used.")
  20. CALCRIM 223 – Direct and Circumstantial evidence, endnote 5, above.
  21. Michelle Fabio, Why Can't Some Juries Convict on Circumstantial Evidence?, Legalzoom, Nov. 2011.
  22. CALCRIM 224 – Circumstantial Evidence: Sufficiency of Evidence, endnote 17, above.
  23. Newport Beach criminal defense attorney Neil Shouse is the Managing Attorney of Shouse Law Group. He is a former Los Angeles County Deputy District Attorney, where he worked on complex, high profile gang, murder, and firearms cases. Now, Shouse has turned the inside knowledge he gained as a prosecutor into extraordinary expertise in criminal defense law, including defense in circumstantial evidence cases . . . thanks to which he frequently appears as a guest legal commentator on national television. He appears in criminal court defending clients throughout the Bay Area and the rest of California.
  24. CALCRIM 224 – Circumstantial Evidence: Sufficiency of Evidence, endnote 16, above.
  25. See same.
  26. CALCRIM 3400 – Alibi [may be used to oppose circumstantial evidence that the defendant was at the scene of the crime]. ("The People must prove that the defendant committed <insert crime[s] charged>. The defendant contends (he/she) did not commit (this/these) crime(s) and that (he/she) was somewhere else when the crime[s] (was/were) committed. The People must prove that the defendant was present and committed the crime[s] with which (he/she) is charged. The defendant does not need to prove (he/she) was elsewhere at the time of the crime. If you have a reasonable doubt about whether the defendant was present when the crime was committed, you must find (him/her) not guilty.")
  27. Richard S. Schmechel, Timothy P. O'Toole, Catherine Easterly and Elizabeth F. Loftus, Beyond the Ken? Testing Jurors' Understanding of Eyewitness Reliability Evidence, 46 Jurimetrics, Winter 2006, p. 184. ("Such resistance is all the more surprising because long before DNA exoneration could prove what is now known - that mistaken eyewitness identifications [including those used as part of a circumstantial evidence case] are the leading cause of wrongful convictions - courts recognized that eyewitness evidence is not as reliable as many jurors think it is.")
  28. Penal Code 1538.5 PC - Motion to return property or suppress evidence [including circumstantial evidence]. ("(a)(1) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: (A) The search or seizure without a warrant was unreasonable. (B) The search or seizure with a warrant was unreasonable because any of the following apply: (i) The warrant is insufficient on its face. (ii) The property or evidence obtained is not that described in the warrant. (iii) There was not probable cause for the issuance of the warrant. (iv) The method of execution of the warrant violated federal or state constitutional standards. (v) There was any other violation of federal or state constitutional standards.")

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