Circumstantial Evidence and the Reasonable Hypothesis of Innocence

May 12, 2015

“Circumstantial evidence is a very tricky thing. It may seem to point very straight to one thing, but if you shift your own point of view a little, you may find it pointing in an equally uncompromising manner to something entirely different.” –Sir Arthur Conan Doyle, “The Adventures of Sherlock Holmes.”




I can remember, as a child, watching TV shows like Law and Order, where a defense attorney would often interject as strenuously as possible that DA Jack McCoy “had nothing,” that the “whole case was circumstantial.”  And so, like many, I grew up with this notion that circumstantial evidence was a dirty word; it was bad. And any lawyer who had to rely on circumstantial evidence had a terrible case. But as cases in the media have demonstrated—including both the Aaron Hernandez case and the Casey Anthony case—circumstantial evidence is not only good evidence; it is also the type of evidence that can cause you to be arrested, or even convicted of a crime. So what is circumstantial evidence? And how did it play out in these renowned cases?

Circumstantial Evidence is exactly what it sounds like. It is evidence of certain facts and circumstances that indicate that a person was involved in a specific crime. More often than not, it is something like a fingerprint or DNA found at the crime scene. Prosecutors usually use this biological evidence to show that the only way the defendant’s fingerprint (or DNA) could be at the scene of the crime is if the defendant were involved in the crime.

In the past few years however, technology has had an important role in expanding the types of circumstantial evidence available in criminal cases to include things like cell phone records (which are frequently used by prosecutors to track a suspect to and from the crime scene), text messages (which discuss details of the crime), or even photos or posts on social media (where some individuals have been known to post photos of themselves with money and/or jewelry which is proven to be recently stolen from the victim).

One prominent case of circumstantial evidence was the case against Casey Anthony. In that case, prosecutors claimed that she had researched certain things about how to make chloroform and “neck breaking.” Prosecutors tried to use these facts, along with evidence of her reputation for partying after her daughter’s disappearance, to show that she must have killed her daughter. Why else would you search for those terms on your computer?   However a single circumstance, or even two, is often not enough to prove guilt of a crime. And that may be why the jury found Casey Anthony not guilty.  In Florida, where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. This is why there needs to be more. And when the prosecution is successful in obtaining a conviction, there usually is.  The perfect example of this is the Aaron Hernandez case.

In that case, there was no “direct evidence” linking Hernandez to the crime. There was no murder weapon found on Hernandez, and there were no eyewitnesses who testified that Hernandez was involved, or even at the scene of the crime. Yet, prosecutors were able to build a case – and obtain a conviction – based on hundreds of witnesses and circumstances which indicated that Hernandez was, in fact, involved in the murder.

In the Hernandez case, prosecutors were able to string together, not just one circumstance, but hundreds of circumstances all which pointed to the fact that Hernandez must have been involved in the crime including:

Surveillance Video.  Almost immediately upon becoming a suspect in the killing, officers went to Hernandez’s home and noticed a surveillance video system. Police were able to retrieve video from the system (which Hernandez (unsuccessfully) tried to delete) that showed Hernandez holding what appeared to be a firearm minutes after the shooting. It also showed him looking relaxed in his basement with the alleged gunmen/accomplices, just hours after the killing. This video made it difficult to argue that (a) there was no proof that he ever had a gun, and (b) that Hernandez was “afraid” of his accomplices. The circumstances of his possessing a firearm shortly after the murder indicate that he had the means to carry out the crime – contrary to his statement and his defense.

Fingerprints. While Hernandez initially denied being involved in the crime, his fingerprints, along with the fingerprints of the victim and his accomplices, were found in the vehicle that the victim was seen driving off in just before he was murdered.

Other suspicious circumstances. Additionally, Hernandez was seen by a hotel worker with a pistol tucked into his waistband just 48 hours before the crime occurred – negating any theory that he never possessed a firearm.

Cellular Telephone Records. Prosecutors also used cell phone records and text message records to show that Hernandez’s phone was inexplicably not connected to his cell phone network for a 20 hour period; and, it was suspicious because this period coincided with the time that the victim, Odin Lloyd, was killed. Importantly, his phone went back on the network the day after the murder. Additionally, cell phone records were used to show that various messages were sent to Hernandez – including by the victim – during this 20 hour dead period. And, perhaps most importantly, there were five phone calls placed to the victim in the hour before the murder, and all of these calls were placed by the accomplice (whom, as discussed above, was seen with Hernandez in surveillance videos the entire night of the murder), just before the murder. These circumstances were used to show that (a) he was trying to hide something by taking his phone “off-line” during the relevant period; (b) that he was in constant contact with the victim just before the murder; and (c) that his alleged accomplice – whom he was with both before AND after the murder – was calling the victim repeatedly just before the murder took place. These circumstances place both Hernandez, and his cohorts, as being with Lloyd around the time that he was killed.

Prosecutors were also able to present text messages between Hernandez and his fiancé, in which he tells her (in code) to dispose of items found in the basement. The prosecution then tied this evidence together with the surveillance video shortly after the text, showing the fiancé coming from the basement (the same location as Hernandez was seen going to with the guns) and throwing out a large box and trash bag on the same day of the murder. This circumstantial evidence showed that (a) Hernandez had something to hide (and as prosecutors argued, it was the gun), and (b) that the item being hidden/destroyed was the gun used in the crime (for obvious reasons).

The evidence used included the surveillance footage, cellphone records, and testimony from approximately 130 witnesses who pieced together suspicious circumstances that led to only one reasonable conclusion: Hernandez was involved in committing the murder.

I’ve been asked since the verdict, how it was possible to sentence Hernandez to life if there is no weapon and no eyewitness testimony. The simple answer is that this is a jury question. If the jury determines that the circumstances show beyond a reasonable doubt that Hernandez had the weapon, and the circumstances show he was at the scene of the crime, it can be enough to say he was involved in the murder. And, as long as the jury determines he is involved in the murder, he can be sentenced to the penalty for first-degree murder (which, in Massachusetts, is life in prison without parole; this is the same penalty in Florida).

This is also an important lesson in evidence, and how it plays out in the courtroom.  Legally, it does not matter that the prosecutor does not have the murder weapon. If there are mounds of evidence pointing to the fact that the defendant had the weapon, that can be enough to secure a conviction.  Perhaps more importantly, if there is proof (as there was in the Hernandez case) that the defendant tried to destroy evidence tying him to the crime, the prosecution can (and often does) use that fact to argue that he must be guilty (because he wouldn’t be trying to cover up evidence unless he knew the evidence pointed at himself). It is yet another circumstance, another piece of the puzzle, pointing to guilt.

As you can see, circumstantial evidence can be weak (as in the Casey Anthony case), or it can be strong (as in the Hernandez case). The strength of the case often depends on the number of circumstances the prosecution can piece together, and the ability of a skilled attorney to show how – as Sherlock Holmes put it – the evidence can be viewed in another light. Showing how the evidence can be viewed differently, can result in successful acquittals. It takes an experienced attorney to show the judge and the jury what the evidence points to, and why it does not point to their client’s guilt.