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Volume 30, Number 4 (1996) reprinted by permission of the Law Review© cite as 30 U.S.F.L. REV. 985
By PAUL BERGMAN*
THIS ARTICLE COMES to the defense of that screenwriter's
favorite whipping person (nee "boy"), circumstantial evidence. Movie lawyers
regularly deride their adversaries' cases as "nothing but a bunch of circumstantial
evidence," with a sneer usually reserved for something they have mistakenly
stepped into. Yet, the plea often falls on deaf ears, because countless
courtroom films depict innocent persons as victims of faulty conclusions
drawn from circumstantial evidence.
For example, in Fury,1 an innocent man is arrested and nearly burned to death by vigilantes when the serial number on a $5 bill he is carrying happens to match that on kidnap ransom money. In A Cry in the Dark,2 jurors mistakenly convict a mother of murdering her infant child after hearing scientific evidence about blood and saliva. An innocent schoolteacher is convicted of murder in They Won't Forget,3 after the jury hears evidence that he was planning to leave town and that his coat had a spot of blood on it. Further, in Let Him Have It,4 a mentally retarded youth is convicted of murdering a police officer after a jury concludes that by uttering the words "let him have it" to his companion, the youth was telling the companion to "start firing" rather than to "hand over your gun." Films sometimes acknowledge that direct evidence too can be misleading. Police may coerce confessions out of innocent suspects,5 and eyewitnesses may be mistaken.6 But a key difference exists between films' treatment of direct and circumstantial evidence. Films give audiences the impression that circumstantial evidence is inherently flawed, leading to inevitable and frequent miscarriages of justice. By contrast, direct evidence is inherently reliable. Mistakes are the exception rather than the rule and usually caused by rogue cops or venal witnesses. Thus, movie lawyers never make statements such as, "They've got nothing but a bunch of eyewitnesses." Movies' differing attitudes towards direct and circumstantial evidence mirror popular sentiment, which places greater value on eyewitness testimony.7 But the accuracy of that sentiment is questionable; research suggests that a majority of wrongful convictions are associated with mistaken eyewitness identification.8 Focusing on Beyond a Reasonable Doubt,9 one of film's most explicit and entertaining indictments of circumstantial evidence, this essay suggests that the gulf between direct evidence and circumstantial evidence is a product of screenwriters' imaginations. The outcome of nearly every case depends on circumstantial evidence, even when direct evidence is available. Thus, no matter what movie lawyers want us to believe, circumstantial evidence is neither more nor less reliable than direct evidence, for the credibility of the latter depends on the former. I. The Story of Beyond a Reasonable Doubt Tom Garrett is a successful writer who is soon to marry wealthy Susan Spencer. Susan's father, Austin, is a newspaper publisher who rails against District Attorney Thompson's penchant for executing murderers convicted on the basis of circumstantial evidence.10 To demonstrate that circumstantial evidence is too misleading a basis for capital punishment, Austin develops a scheme to plant clues implicating an innocent person in an unsolved murder. When the person is convicted and sentenced to death, along will come Austin to reveal the person's innocence. A chastened public will then renounce circumstantial evidence as a basis of capital punishment and properly dispose of litter. Garrett volunteers to become the fall guy in Austin's plan, figuring to turn the experience into another bestseller. The right kind of case soon comes along, the unsolved murder of nightclub dancer Patty Gray. Photographing their every step, Garrett and Austin spread traces of Patty's body makeup inside Garrett's car and toss Garrett's cigarette lighter into the bushes near where Patty's body was found. Garrett also dresses like the man who was seen picking up Patty on the night she died, and starts dating Patty's friend Dolly. Dolly becomes fearful, and alerts the police to Garrett's attentions. When Garrett takes Dolly on a ride and begins attacking her, he's arrested for murdering Patty. With the planted evidence, Thompson easily builds a strong case against Garrett. Wilson, Garrett's attorney, must have a sense that the trial is being run by the gamblers who fixed the 1919 World Series. Garrett is even hoisted on unplanted petards. First, Thompson proves that Patty suddenly came into possession of $3000 around the time that Garrett withdrew this same amount from his bank account. Garrett explains that he withdrew the money to buy an engagement ring for Susan, but the coincidence is additional circumstantial evidence of Garrett's guilt. Second, Thompson has evidence that Patty's killer smoked a pipe. Garrett denies that he's a pipe smoker, but Thompson demonstrates that matchbook covers in Garrett's garage were stained by a pipe smoker.11 Garrett receives his death sentence calmly; now it is Austin's and Garrett's turn at bat. But in the first plot twist, Austin, while on his way to deliver the exculpatory evidence to Thompson, dies in a fiery automobile accident that also destroys all the photographs. Garrett hurriedly reveals the secret scheme to Susan and his attorney, Wilson, who appeal to Thompson for mercy. But Thompson is not interested. In fact, to prevent the Governor from granting Garrett a pardon, Thompson instructs his assistant Bob Hale, Susan's old flame, to look for more evidence connecting Garrett to Patty. However, the only new information that Hale can dig up is that years ago, Patty was known as Emma. In the second plot twist, with Garrett's execution imminent, Austin's executor dramatically finds Austin's letter detailing the scheme to implicate Garrett. The executor rushes the letter to Thompson, who finally agrees that he's been had. Just in the nick of time, Thompson instructs the Governor to pardon Garrett. But now comes the final plot twist. Just before the Governor can pardon him, Garrett meets with Susan to talk over his good fortune. Garrett carelessly refers to Patty as "Emma," revealing to a shocked Susan that he had known the murdered woman all along. With the cat out of the bag, Garrett confesses to Susan that he killed Patty. Garrett had married Patty long ago, and had mistakenly assumed that she had gotten a divorce. When Garrett heard of Austin's scheme, he figured that he had a foolproof way to get rid of Patty and clear the aisle for his marriage to Susan. After a moment of indecision, Susan tells Hale of Garrett's guilt. Hale calls the Governor, who is moments away from signing Garrett's pardon. After the call, the Governor slowly returns his pen to its holder and Garrett to Death Row. II. The Ubiquitousness of Circumstantial Evidence Austin and generations of movie lawyers insist that the public cannot have full confidence in verdicts based on circumstantial evidence. Only direct evidence is the sine qua non of accurate verdicts. Let's examine this familiar chant. The probative worth of circumstantial evidence rests on inferences.12 Inferences are mental linkages based on generalizations, which by definition are accurate less than 100% of the time. For example, consider Garrett's cigarette lighter, one of the planted items of circumstantial evidence. The jury can infer that the lighter links Garrett to Patty's death because everyday experience allows jurors to generalize that "people whose cigarette lighters are found near the scene of a murder sometimes have been personally present at the murder scene"13 and "people who have been personally present at the scene of a murder sometimes have committed the murder."14 However, such generalizations are subject to numerous exceptions, which themselves rest on generalizations. For example, a person may be present at the scene of a murder without being a murderer. And Garrett might testify that he loaned his lighter to a friend the month before Patty's murder and never got it back. Based on this testimony, Garrett would ask the jurors to accept the accuracy of a generalization that "objects are sometimes found in places that their owners have not personally visited." Thus, in summary form the attack on verdicts based on circumstantial evidence proceeds as follows: First, the probative worth of circumstantial evidence rests on generalizations. Second, generalizations are by definition subject to exceptions and thus might produce incorrect inferences. Third, the possibility of incorrect inferences renders verdicts based on circumstantial evidence inherently untrustworthy. The attack has undeniable appeal. In real life, unlike in most movies, we can never be certain that we know "what really happened." Unfortunately, even if movie lawyers generally assure us to the contrary, the predicament does not vanish in the presence of direct evidence. For example, assume that Thompson produced a witness who testified, "I saw Garrett kill Patty." This is quintessential direct evidence; no inference is necessary to link the evidence to the legal conclusion. But the testimony supports a verdict of guilty only if the jury believes that the testimony is true. Therefore, Thompson would undoubtedly want to offer additional evidence bolstering the credibility of this testimony. For instance, Thompson might elicit testimony suggesting: (1) that the witness does not know Garrett and therefore has no axe to grind against him and (2) that the witness was standing only 10 feet away from the scene of the crime and therefore had an excellent opportunity to observe the killer. What is the term for such credibility-bolstering evidence? Circumstantial evidence! That is, a witness' neutrality bolsters credibility only because a generalization allows jurors to infer that "people who have no interest in the outcome of a case sometimes report their observations accurately." But as usual, exceptions exist. For example, a juror might conclude that the neutrality evidence undermines the testimony's believability, based on generalizations that "people who do not know a person sometimes do not pay close attention to what that person is doing" and "people who do not pay close attention to what a person is doing sometimes misperceive events." Conclusion Thus, the charge that verdicts based on direct evidence are more trustworthy than those based on circumstantial evidence is untrue, because circumstantial evidence determines the credibility of direct evidence. To see this even more clearly, give Thompson two eyewitnesses. Each says, "I saw Garrett kill Patty." If jurors believe that each eyewitness bolsters the credibility of the other, it is only because the jurors implicitly accept a generalization such as, "people whose observations agree with those made by other people sometimes are accurate." Still, a contrary inference is possible because a juror might accept a generalization that people whose observa- tions agree with those made by other people sometimes conspire to tell identical but false stories." The charge that an adversary's case is "nothing but a bunch of circumstantial evidence" reflects people's deeply felt desire for certainty. "If only we had direct evidence, we'd know what really happened," is the implicit message of movies such as Beyond a Reasonable Doubt. But no matter how entertainingly it is delivered, the message is inaccurate. Circumstantial evidence dominates every case, and while our justice system is committed to fair procedures, we must trust judges and jurors to draw factually correct inferences - as the jurors here did in convicting Garrett. Austin's and Garrett's miscalculations in Beyond a Reasonable Doubt go beyond the probative worth of circumstantial evidence. Austin's scheme provides Garrett with the impetus to kill Patty. But having done the deed, perhaps Garrett should have backed out of the plan. Garrett already stands a good chance of getting away with the crime, as the police tell Austin that they have no idea who killed Patty. Even if the police were suddenly to dig into Patty's past and find that she was married to Garrett, that would hardly prove that he killed her. Besides, the police are probably more likely to find out about the marriage once they arrest Garrett and try to build a case against him. On balance, Garrett should have suggested to Austin that they scrap the original plan and instead blow the lid off the unfair treatment of jaywalkers. Moreover, it was risky business for Austin and Garrett to have only one set of photos. Granted, bonus prints were not yet a popular marketing device in the mid-1950s. But Austin owned a newspaper; he surely could have sprung for a spare set of prints as insurance. If the dramatic turn of events at the end of Beyond a Reasonable Doubt "did in" Garrett, think of its effect on future defendants. Who would want to be the next defense attorney who goes in to District Attorney Thompson to complain that the prosecution case is nothing but a bunch of circumstantial evidence? |
