Wednesday, December 13, 2006

Plain English: circumstantial evidence

My own effort at plainifying the Texas Pattern Jury Charges.

Before Schiess
A fact may be established by direct evidence or by circumstantial evidence or both.

A fact is established by direct evidence when proved by documentary evidence or by witnesses who saw the act done or heard the words spoken.

A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved.

After Schiess
During the trial, you will hear two kinds of evidence. They are direct evidence and indirect evidence.

Direct evidence means a fact was proved by a document, by an item, or by testimony from a witness who heard or saw the fact directly. Indirect evidence means the circumstances reasonably suggest the fact. Indirect evidence means that based on the evidence, you can conclude the fact is true. Indirect evidence is also called “circumstantial evidence.”

For example, suppose a witness was outside and saw that it was raining. The witness could testify that it was raining, and this would be direct evidence. Now suppose the witness was inside a building, but the witness saw people walking into the building with wet umbrellas. The witness could testify that it was raining outside, and this would be indirect evidence.

A fact may be proved by direct evidence or by indirect evidence or by both.

My reluctance to use the word circumstantial is based on research done by Peter Tiersma:

[C]ircumstantial evidence is to some extent what I call a legal homonym: it has a fairly technical legal meaning that differs from how it's ordinarily used. Most people tend to think of circumstantial evidence as referring to weak or less reliable evidence, whether direct or indirect.

Peter Tiersma, Communicating with Juries: How to Draft More Understandable Instructions, 10 Scribes J. legal Writing 1, 35 (2005-2006).

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