Understanding Direct and Circumstantial Evidence

Alright, hello and welcome to this evidence video capsule. And in this capsule, I'm going to start with a very basic concept. I'm going to explore the difference between direct and circumstantial evidence. Now, if you study a lot of evidence and look at evidence cases, you'll quickly notice that these terms come up a fair bit, and there is a distinction between direct and circumstantial evidence. But as this capsule will reveal, compared to historical times when there were very different rules of... proof in how these types of evidence can be used, these are not as significant today. The courts have tried to minimize the difference between the ways these types of evidence are applied. So to put it mildly, it's not particularly important to understand these terms in terms of how various rules are applied, but it is a good idea to understand what they are because there are a couple of times in the law when there will be significance attributed to the fact that a particular case is built on circumstantial evidence. as opposed to direct evidence. So let's dig right into it. Okay, so let's start with direct evidence, which is much easier to understand and much easier to apply. And you always know direct evidence when you see it, because essentially what you have is a witness who is providing directly what it is you need to prove. So in this case, direct evidence is essentially categorized by the idea that a witness gives you... the very inference that you need to prove. So in this case, for example, this is direct evidence of the fact that it rained yesterday. You have a witness. They have told you they saw it raining, so therefore it is direct evidence of the fact that it rained yesterday. And the reason you know that this is what I call direct evidence is that the links in the evidentiary chain of reasoning are direct. What I mean by that is, A, the witness says that it's raining. and you are using it to prove directly the proposition that is asserted, that it was raining. Therefore, it's direct evidence. The links in the chain are incredibly short. If you believe this witness, you can accept the fact that it was the exact proposition that the witness asserts, that it was raining. Therefore, step one, it was raining. Step two, it was raining. That is direct evidence. And guess what? That's the only type of direct evidence there is. When the proposition being tendered is exactly what it is you are trying to prove, we can call it direct evidence because we're not trying to draw any other conclusion from that fact. Now, how do we define circumstantial evidence? Well, look at this piece of testimony here and imagine that you're still trying to prove the same thing, that it was raining yesterday, okay? Now, can you do that with this piece of evidence? Yes, you can. but not in quite the same way. If you have a witness who says that they looked outside yesterday and noticed that the road was wet, it is certainly possible to draw the conclusion that it was raining yesterday. But as you will notice, I hope right away, this is very different from the direct evidence that we told you about earlier. In this case, what you have is proposition A, the road was wet, and you are trying to prove proposition B, that it was raining. And what you can do is, you can draw an inference, which means you use this evidence circumstantially. It is a circumstance that allows you to draw the inference that, well, if it was wet, it was likely raining. Therefore, it was raining. But suddenly, we've got three steps. And let me just stress that with circumstantial evidence, sometimes you'll have many, many more than three steps. This, let me stress right from the outset. This doesn't mean that circumstantial evidence is worse than direct evidence. That's not necessarily true at all. Sometimes circumstantial evidence will be incredibly, incredibly powerful. But it does mean that circumstantial evidence is different than direct evidence, in that you have to draw more links in your evidentiary chain of reasoning, plus it's not simply a matter of belief. You have a two-step reasoning process. First, you have to decide whether or not you believe this witness, which was true of direct evidence as well. But then you also have to decide whether the inference is the most likely possibility when you're trying to decide whether it was raining yesterday, because, of course, there could be other reasons why the road was wet. Again, I stress, it doesn't mean that circumstantial evidence is worse evidence than direct evidence. That's not true. You have lots of direct evidence, as you can imagine, given by people who are liars or just not telling the truth. Sometimes circumstantial evidence will be very, very powerful. But I stress that as you can see here, the reasoning process is different. And here's another interesting thing. Evidence can be both direct evidence and circumstantial evidence at the exact same time. It depends upon what it is you're trying to prove. So this evidence right here is direct evidence of the fact that it was raining yesterday. But it's circumstantial proof, if you need to prove, that people near John were carrying umbrellas. So guess what? Whether something is direct evidence or circumstantial evidence depends upon the assertion you are trying to prove. So if you need to prove in your case that it was raining yesterday, direct evidence. If you need to prove that people around where John was standing were carrying umbrellas, it's circumstantial evidence. And that's essentially the difference. It just depends upon what it is you're trying to prove. Circumstantial evidence is incredibly important, and it's especially important in criminal cases. And the reason why it's so important in criminal cases is because in a criminal case, as you know, You probably need to prove the actus reis, which is the act, and the mens rea, which is the intention. So let's just assume, as we do in this case, that we have a very simple assault case. Well, in most assault cases, you know, not all again, but in most assault cases, you can get direct evidence of the actus reis. That's not hard to get at all. So I have an eyewitness who saw Johnny punch that guy in the head. There we go. That's the actus reis. But let me just say that getting direct evidence of the mens rea is much harder. Now this satisfies. If you have a confession or a statement from John, that can provide direct evidence of intention to commit assault. But let me just say that in any case where your suspect does not speak, which is a lot of criminal cases, you need to use circumstantial evidence to get the mens rea. What I mean by that is the fact that you saw, you have a witness who saw Johnny punch somebody in the head, is direct evidence of the actus reas. But it can also provide circumstantial evidence of the mens rea because he looked like he was intending to punch him. That's the evidence I'm showing. I saw him punch him. He got up afterwards and was smiling after he punched a guy in the face. Therefore, I can infer circumstantially that he had the mens rea. So very important to use circumstantial evidence for a variety of propositions in a criminal case. So let me say a couple of them. recap a couple of important points. The truth is, most cases cannot be proven without circumstantial evidence. It's just, it's really hard to have direct evidence of every particular fact you need to prove. It does happen, but it's pretty rare. Some cases, as you can imagine, are built entirely on circumstantial evidence. That's all you have. A good example of this are cases revolving around identity, right? You may have direct evidence of somebody saying, yeah, it was that guy. But what you also have is a lot of circumstantial evidence saying, well, A was in the area, and A was after the event, was carrying a knife. These are all circumstantial pieces of evidence that tend to show the identity of the person who committed the crime. And those are really important pieces of evidence. Now, direct evidence turns mainly on whether you believe the witness. If you believe this witness and saw that it was raining, then you have proof of the fact that you are trying to establish. But circumstantial evidence requires a different form of reasoning. First of all, you have to believe, for whatever reason, the underlying statement. So again, just like with direct evidence, I have to believe that this witness saw that the road was wet. But then you have to go through a different pattern of reasoning, because now it's entirely possible that the fact that the road was wet shows that it rained yesterday. But it's also possible that the fact that the road was wet means that the street was cleaned. So how do you decide, in a case, which evidence to accept? Well, that is the basis of what we do when we are trying to use circumstantial evidence. So the answer, not surprisingly, requires a two-fold reasoning process, which is what makes this different from direct evidence. One, you have to decide whether or not you believe the witness. Same. And, you know, circumstantial evidence can also come in all forms. shapes and sizes. So sometimes it's not a matter of whether you believe the witness, but whether or not you believe what the particular piece of evidence is asserting. But the second form of reasoning, which doesn't exist with direct evidence, is that it requires you to evaluate all the conclusions in light of all the evidence. So the fact that the road was wet probably means it was raining, but it may mean that the street was being cleaned. So whether or not we should accept Proposition A or Proposition B... depends upon all the other evidence in the case. What it means is, if you have enough circumstantial evidence, there was clouds in the area, for example, more or less, likely that it was raining. We saw a lot of people around with umbrellas that day, more likely that it was raining. Or on the contrary, you know, at the same time as he saw the road was wet, somebody reported seeing a street cleaner, two streets over. Well, that makes it more likely that the streets were being cleaned. I realize these propositions are not something that would actually happen. We're never going to need to prove that it was raining in a particular place in this day and age without a good weather report. But you get the idea. Now, what it is you were trying to prove. in circumstantial evidence requires you to evaluate conclusions in light of all the evidence in the case. So as I suggested earlier, with direct evidence, what you have is A leads to B. I saw it was raining, therefore it was raining. But with circumstantial evidence, what you have is something different. I saw it was wet, and I'm trying to prove that it was raining. So what I can see is when roads are wet, we use a common sense proposition, and by the way, if that's confusing to you, I urge you to go watch the capsule on relevance, which is what this is all about. If it's wet, if streets are wet, it's most likely that they are raining. So therefore, it was raining. But what you'll see here is this shows you the difference between circumstantial and direct evidence. Circumstantial evidence requires use of an interim proposition, and sometimes, let me stress, it also requires obvious of other pieces of evidence. So for example, I said, well, we also saw that there were clouds in the area, and when there are clouds in the area, it's even more likely that it was raining. So you can strengthen your proposition by adding in additional facts. So you can do that, but by adding in links in the chain, you are making a more complicated inference that needs to be drawn. And therefore, we need to be careful to ensure, unlike here, where it's a very direct proposition, that the circumstantial proposition is a good one. And that's where courts have occasionally been wary. So very recently, in a case called Villa-Romain, the court sort of emphasized the difference between direct and circumstantial evidence. And Villa-Romain is particularly a case that is concerned about instructions to juries. But I think it's a good reminder for everyone who's involved in the evidentiary process about the importance of being careful with circumstantial evidence. Because let me just say that people tend to jump. sometimes to conclusions. I mean, my example with raining and a wet road is not particularly the most difficult, but as you can imagine, we sometimes use circumstantial evidence too readily. For example, we find a knife in the possession of a person and someone nearby has been stabbed. We may jump to the conclusion without other evidence that the person holding the knife is the killer. And let me just say, without anything more, that is not a particularly powerful proposition. We need more evidence to make our circumstantial point strongly. So we have to be careful. Essentially, it was what the court was reminding us in the Villa Roman case, don't jump to conclusions too quickly. And they pointed out that an instruction to the jury is useful in warning the jury of the risks of this type of evidence. And the idea here was to tie in the idea of circumstantial evidence and proof beyond a reasonable doubt. And what Villa Roman is really all about, and again, I stress that before Villa Roman, there were a lot of different points in the jurisprudence that sometimes suggested some very complex instructions. And the point of this case was to say, it doesn't need to be complex. What we need to do is always remind the jury that proof beyond a reasonable doubt, if you are using circumstantial evidence to prove your case, you have to remember that that should be the only reasonable inference from the facts. So to use my raining example or a wet road, when you are making a conclusion from a wet road that it was raining, you better have some other things that suggest to you that the reason why the road was wet was because it was raining. Because if there are other reasonable inferences available, you have not proven guilt beyond a reasonable doubt. And that's a pretty important proposition. Essentially, what Villaroman stands for, where important parts of cases are built on circumstantial evidence. You've got to do that extra part of the reasoning process, and remember that unlike direct evidence, where it's just do you believe the witness or not, the reasonable inference, the only reasonable inference, has to be the guilty one. If it's not, you haven't proven guilt beyond a reasonable doubt. So, aside from this little reminder about instructions to the jury, there really is nothing special or nothing really different between circumstantial and direct evidence. Nonetheless, as I hope this capsule reveals, it's a good idea to understand the distinction between direct and circumstantial evidence. And really, remind yourself, whether as an evidence lawyer or as anybody else involved, even writing exams as a student, that when you provide inferences from circumstantial evidence, don't jump too easily to conclusions. Remember that there are other possibilities involved, and think those through, and think about how you will support the inference you wish to draw. Probably, if you're a litigator, by tendering. other forms of circumstantial evidence. Because the truth of the matter is, the more you can build various circumstantial points, the more strongly you can prove your proposition. And just to finish up, just like by showing the road is wet. Well, the road is wet is one thing. That's one piece of circumstantial evidence. It was cloudy. That's another piece of circumstantial evidence. People were carrying umbrellas. That's another piece of circumstantial evidence. It usually rains at best time of year. That's a lot of circumstantial evidence to prove. that on that day, it was raining, even though nobody saw that it was raining. Circumstantial evidence can add up and become a powerful tool in the evidentiary reasoning process. I hope that was of interest to you, and have a great day. To learn more about this topic, you might want to check out my book, The Law of Witnesses and Evidence in Canada, published by Thomson Reuters. This book covers every topic involving the law of evidence, and also How Witnesses Come Before Courts and Tribunals in Criminal, Civil, and Administrative Proceedings. To learn more, you can check out my website at petersankoff.com.

Now, if you study a lot of evidence and look at evidence cases, you'll quickly notice that these terms come up a fair bit, and there is a distinction between direct and circumstantial evidence. But as this capsule will reveal, compared to historical times when there were very different rules of... proof in how these types of evidence can be used, these are not as significant today.

The courts have tried to minimize the difference between the ways these types of evidence are applied. So to put it mildly, it's not particularly important to understand these terms in terms of how various rules are applied, but it is a good idea to understand what they are because there are a couple of times in the law when there will be significance attributed to the fact that a particular case is built on circumstantial evidence. as opposed to direct evidence.

So let's dig right into it. Okay, so let's start with direct evidence, which is much easier to understand and much easier to apply. And you always know direct evidence when you see it, because essentially what you have is a witness who is providing directly what it is you need to prove. So in this case, direct evidence is essentially categorized by the idea that a witness gives you... the very inference that you need to prove.

So in this case, for example, this is direct evidence of the fact that it rained yesterday. You have a witness. They have told you they saw it raining, so therefore it is direct evidence of the fact that it rained yesterday. And the reason you know that this is what I call direct evidence is that the links in the evidentiary chain of reasoning are direct.

What I mean by that is, A, the witness says that it's raining. and you are using it to prove directly the proposition that is asserted, that it was raining. Therefore, it's direct evidence. The links in the chain are incredibly short.

If you believe this witness, you can accept the fact that it was the exact proposition that the witness asserts, that it was raining. Therefore, step one, it was raining. Step two, it was raining. That is direct evidence.

And guess what? That's the only type of direct evidence there is. When the proposition being tendered is exactly what it is you are trying to prove, we can call it direct evidence because we're not trying to draw any other conclusion from that fact. Now, how do we define circumstantial evidence?

Well, look at this piece of testimony here and imagine that you're still trying to prove the same thing, that it was raining yesterday, okay? Now, can you do that with this piece of evidence? Yes, you can. but not in quite the same way. If you have a witness who says that they looked outside yesterday and noticed that the road was wet, it is certainly possible to draw the conclusion that it was raining yesterday.

But as you will notice, I hope right away, this is very different from the direct evidence that we told you about earlier. In this case, what you have is proposition A, the road was wet, and you are trying to prove proposition B, that it was raining. And what you can do is, you can draw an inference, which means you use this evidence circumstantially. It is a circumstance that allows you to draw the inference that, well, if it was wet, it was likely raining. Therefore, it was raining.

But suddenly, we've got three steps. And let me just stress that with circumstantial evidence, sometimes you'll have many, many more than three steps. This, let me stress right from the outset.

This doesn't mean that circumstantial evidence is worse than direct evidence. That's not necessarily true at all. Sometimes circumstantial evidence will be incredibly, incredibly powerful. But it does mean that circumstantial evidence is different than direct evidence, in that you have to draw more links in your evidentiary chain of reasoning, plus it's not simply a matter of belief.

You have a two-step reasoning process. First, you have to decide whether or not you believe this witness, which was true of direct evidence as well. But then you also have to decide whether the inference is the most likely possibility when you're trying to decide whether it was raining yesterday, because, of course, there could be other reasons why the road was wet. Again, I stress, it doesn't mean that circumstantial evidence is worse evidence than direct evidence.

That's not true. You have lots of direct evidence, as you can imagine, given by people who are liars or just not telling the truth. Sometimes circumstantial evidence will be very, very powerful.

But I stress that as you can see here, the reasoning process is different. And here's another interesting thing. Evidence can be both direct evidence and circumstantial evidence at the exact same time. It depends upon what it is you're trying to prove. So this evidence right here is direct evidence of the fact that it was raining yesterday.

But it's circumstantial proof, if you need to prove, that people near John were carrying umbrellas. So guess what? Whether something is direct evidence or circumstantial evidence depends upon the assertion you are trying to prove.

So if you need to prove in your case that it was raining yesterday, direct evidence. If you need to prove that people around where John was standing were carrying umbrellas, it's circumstantial evidence. And that's essentially the difference. It just depends upon what it is you're trying to prove.

Circumstantial evidence is incredibly important, and it's especially important in criminal cases. And the reason why it's so important in criminal cases is because in a criminal case, as you know, You probably need to prove the actus reis, which is the act, and the mens rea, which is the intention. So let's just assume, as we do in this case, that we have a very simple assault case. Well, in most assault cases, you know, not all again, but in most assault cases, you can get direct evidence of the actus reis.

That's not hard to get at all. So I have an eyewitness who saw Johnny punch that guy in the head. There we go. That's the actus reis. But let me just say that getting direct evidence of the mens rea is much harder.

Now this satisfies. If you have a confession or a statement from John, that can provide direct evidence of intention to commit assault. But let me just say that in any case where your suspect does not speak, which is a lot of criminal cases, you need to use circumstantial evidence to get the mens rea. What I mean by that is the fact that you saw, you have a witness who saw Johnny punch somebody in the head, is direct evidence of the actus reas. But it can also provide circumstantial evidence of the mens rea because he looked like he was intending to punch him.

That's the evidence I'm showing. I saw him punch him. He got up afterwards and was smiling after he punched a guy in the face.

Therefore, I can infer circumstantially that he had the mens rea. So very important to use circumstantial evidence for a variety of propositions in a criminal case. So let me say a couple of them. recap a couple of important points.

The truth is, most cases cannot be proven without circumstantial evidence. It's just, it's really hard to have direct evidence of every particular fact you need to prove. It does happen, but it's pretty rare.

Some cases, as you can imagine, are built entirely on circumstantial evidence. That's all you have. A good example of this are cases revolving around identity, right? You may have direct evidence of somebody saying, yeah, it was that guy.

But what you also have is a lot of circumstantial evidence saying, well, A was in the area, and A was after the event, was carrying a knife. These are all circumstantial pieces of evidence that tend to show the identity of the person who committed the crime. And those are really important pieces of evidence. Now, direct evidence turns mainly on whether you believe the witness.

If you believe this witness and saw that it was raining, then you have proof of the fact that you are trying to establish. But circumstantial evidence requires a different form of reasoning. First of all, you have to believe, for whatever reason, the underlying statement. So again, just like with direct evidence, I have to believe that this witness saw that the road was wet. But then you have to go through a different pattern of reasoning, because now it's entirely possible that the fact that the road was wet shows that it rained yesterday.

But it's also possible that the fact that the road was wet means that the street was cleaned. So how do you decide, in a case, which evidence to accept? Well, that is the basis of what we do when we are trying to use circumstantial evidence.

So the answer, not surprisingly, requires a two-fold reasoning process, which is what makes this different from direct evidence. One, you have to decide whether or not you believe the witness. Same.

And, you know, circumstantial evidence can also come in all forms. shapes and sizes. So sometimes it's not a matter of whether you believe the witness, but whether or not you believe what the particular piece of evidence is asserting.

But the second form of reasoning, which doesn't exist with direct evidence, is that it requires you to evaluate all the conclusions in light of all the evidence. So the fact that the road was wet probably means it was raining, but it may mean that the street was being cleaned. So whether or not we should accept Proposition A or Proposition B... depends upon all the other evidence in the case. What it means is, if you have enough circumstantial evidence, there was clouds in the area, for example, more or less, likely that it was raining.

We saw a lot of people around with umbrellas that day, more likely that it was raining. Or on the contrary, you know, at the same time as he saw the road was wet, somebody reported seeing a street cleaner, two streets over. Well, that makes it more likely that the streets were being cleaned. I realize these propositions are not something that would actually happen. We're never going to need to prove that it was raining in a particular place in this day and age without a good weather report.

But you get the idea. Now, what it is you were trying to prove. in circumstantial evidence requires you to evaluate conclusions in light of all the evidence in the case. So as I suggested earlier, with direct evidence, what you have is A leads to B. I saw it was raining, therefore it was raining.

But with circumstantial evidence, what you have is something different. I saw it was wet, and I'm trying to prove that it was raining. So what I can see is when roads are wet, we use a common sense proposition, and by the way, if that's confusing to you, I urge you to go watch the capsule on relevance, which is what this is all about. If it's wet, if streets are wet, it's most likely that they are raining. So therefore, it was raining.

But what you'll see here is this shows you the difference between circumstantial and direct evidence. Circumstantial evidence requires use of an interim proposition, and sometimes, let me stress, it also requires obvious of other pieces of evidence. So for example, I said, well, we also saw that there were clouds in the area, and when there are clouds in the area, it's even more likely that it was raining.

So you can strengthen your proposition by adding in additional facts. So you can do that, but by adding in links in the chain, you are making a more complicated inference that needs to be drawn. And therefore, we need to be careful to ensure, unlike here, where it's a very direct proposition, that the circumstantial proposition is a good one. And that's where courts have occasionally been wary.

So very recently, in a case called Villa-Romain, the court sort of emphasized the difference between direct and circumstantial evidence. And Villa-Romain is particularly a case that is concerned about instructions to juries. But I think it's a good reminder for everyone who's involved in the evidentiary process about the importance of being careful with circumstantial evidence.

Because let me just say that people tend to jump. sometimes to conclusions. I mean, my example with raining and a wet road is not particularly the most difficult, but as you can imagine, we sometimes use circumstantial evidence too readily. For example, we find a knife in the possession of a person and someone nearby has been stabbed. We may jump to the conclusion without other evidence that the person holding the knife is the killer.

And let me just say, without anything more, that is not a particularly powerful proposition. We need more evidence to make our circumstantial point strongly. So we have to be careful. Essentially, it was what the court was reminding us in the Villa Roman case, don't jump to conclusions too quickly.

And they pointed out that an instruction to the jury is useful in warning the jury of the risks of this type of evidence. And the idea here was to tie in the idea of circumstantial evidence and proof beyond a reasonable doubt. And what Villa Roman is really all about, and again, I stress that before Villa Roman, there were a lot of different points in the jurisprudence that sometimes suggested some very complex instructions.

And the point of this case was to say, it doesn't need to be complex. What we need to do is always remind the jury that proof beyond a reasonable doubt, if you are using circumstantial evidence to prove your case, you have to remember that that should be the only reasonable inference from the facts. So to use my raining example or a wet road, when you are making a conclusion from a wet road that it was raining, you better have some other things that suggest to you that the reason why the road was wet was because it was raining. Because if there are other reasonable inferences available, you have not proven guilt beyond a reasonable doubt.

And that's a pretty important proposition. Essentially, what Villaroman stands for, where important parts of cases are built on circumstantial evidence. You've got to do that extra part of the reasoning process, and remember that unlike direct evidence, where it's just do you believe the witness or not, the reasonable inference, the only reasonable inference, has to be the guilty one. If it's not, you haven't proven guilt beyond a reasonable doubt. So, aside from this little reminder about instructions to the jury, there really is nothing special or nothing really different between circumstantial and direct evidence.

Nonetheless, as I hope this capsule reveals, it's a good idea to understand the distinction between direct and circumstantial evidence. And really, remind yourself, whether as an evidence lawyer or as anybody else involved, even writing exams as a student, that when you provide inferences from circumstantial evidence, don't jump too easily to conclusions. Remember that there are other possibilities involved, and think those through, and think about how you will support the inference you wish to draw. Probably, if you're a litigator, by tendering.

other forms of circumstantial evidence. Because the truth of the matter is, the more you can build various circumstantial points, the more strongly you can prove your proposition. And just to finish up, just like by showing the road is wet.

Well, the road is wet is one thing. That's one piece of circumstantial evidence. It was cloudy.

That's another piece of circumstantial evidence. People were carrying umbrellas. That's another piece of circumstantial evidence.

It usually rains at best time of year. That's a lot of circumstantial evidence to prove. that on that day, it was raining, even though nobody saw that it was raining.

Circumstantial evidence can add up and become a powerful tool in the evidentiary reasoning process. I hope that was of interest to you, and have a great day. To learn more about this topic, you might want to check out my book, The Law of Witnesses and Evidence in Canada, published by Thomson Reuters.

This book covers every topic involving the law of evidence, and also How Witnesses Come Before Courts and Tribunals in Criminal, Civil, and Administrative Proceedings. To learn more, you can check out my website at petersankoff.com.

Transcript for:Understanding Direct and Circumstantial Evidence

Transcript for:
Understanding Direct and Circumstantial Evidence