Casey Anthony is a good example of a hard person upon which to base future jurisprudence. She is not a likeable person. She regularly lied during the investigation. She did not report her daughter as missing. She partied without an apparent care in the world. But, and this is a most important but, according to the Constitution and common law of the USA, she did not have to prove herself innocent. It was up to the prosecution to prove her guilty. When the jury ruled that the prosecution had failed to prove her guilty, it upheld the most important safeguard that we have as citizens against any future misbehaving prosecutor or misbehaving government. We must be proven to be guilty “beyond a reasonable doubt.” We do not need to prove ourselves innocent.
When that doctrine is violated, it inevitably leads to innocent people being convicted. The many cases of supposed murderers, rapists, etc., who were fully and totally exonerated by later investigations are proof of what can happen when a jury relies only on circumstantial evidence with no other corroborating evidence to support the finding of guilty. Sadly, in every one of the exonerated cases, the person had served years in jail as a result of the pressure on a jury to convict simply because the prosecutor says that they are guilty. It is that pressure that the jury in the Casey Anthony trial felt and is feeling as a result of the incessant drumbeat of a misbehaving news media.
Some of you may not be aware of what is circumstantial. Circumstantial evidence is:
Circumstantial evidence is evidence in which an inference is required to connect it to a conclusion of fact. By contrast, direct evidence supports the truth of an assertion directly—i.e., without need for any additional evidence or the intervening inference.
On its own, it is the nature of circumstantial evidence for more than one explanation to still be possible. Inference from one piece of circumstantial evidence may not guarantee accuracy. Circumstantial evidence usually accumulates into a collection, so that the pieces then become corroborating evidence. Together, they may more strongly support one particular inference over another. An explanation involving circumstantial evidence becomes more valid as proof of a fact when the alternative explanations have been ruled out. …
Testimony can be direct evidence or it can be circumstantial. If the witness claims they saw the crime take place, this is considered direct evidence. For instance, a witness saying that the defendant stabbed the victim is direct evidence. By contrast, a witness who says that she saw the defendant enter a house, that she heard screaming, and that she saw the defendant leave with a bloody knife gives circumstantial evidence. It is the necessity for inference, and not the obviousness of a conclusion, that determines whether or not evidence is circumstantial.
Forensic evidence supplied by an expert witness is usually circumstantial evidence. A forensic scientist who testifies that ballistics proves the defendant’s firearm killed the victim gives circumstantial evidence from which the defendant’s guilt may be inferred. (Note that an inference of guilt could be incorrect if the person who actually fired the weapon was somebody else.)
Notice that circumstantial evidence is NOT direct evidence. It is merely, and nothing else but, inference. Circumstantial evidence depends on you connecting the dots. But, the dots can often be connected in more than one way. The more indirect the circumstantial evidence is, the more likely that there will be alternate explanations found that connect the dots. All you have to do is watch any of several TV crime shows to see how circumstantial evidence may lead at first to one suspect, only to have the same exact evidence later lead to another suspect. Shows such as The Closer go farther, often depicting a situation in which the circumstantial evidence is incomplete, requiring the heroine (The Closer) to talk the suspect into a type of confession that finally seals the deal. The other side of it is that, often, the more circumstantial evidence that there is, the more that it will tend to corroborate your inference.
But, the original granddaddy of this type of genre are the stories of The Adventures of Sherlock Holmes by Sir Arthur Conan Doyle. Have you read them or seen them on TV or in the movies? In every one of them, the police are incapable of correctly following circumstantial evidence in order to arrive at the correct criminal. More than once, the wrong person is arrested based on circumstantial evidence, and in every case, Mr Sherlock Holmes connects the dot in a different way in order to find the correct criminal. A more modern version of this is the TV series Perry Mason from the 1950’s. Based on the Perry Mason books, the series shows a defense attorney who regularly connects the dots in a different way than the prosecution in order to find the defendant not guilty.
Let me give you a quick example. Let’s say a 911 call is received and a person says that their wife has been murdered. The police arrive and the husbands footprints are found in blood around the body, the wife’s blood is found on him, a gun is found next to the wife, and the husband’s fingerprints are found overlaying his wife’s fingerprints on the gun. What conclusions can be reached at that point? Well, one easy one is that the husband shot the wife. But, all that data can also be as easily explained by assuming that the husband came home, found the wife, saw the gun, moved the gun away and cradled her in his arms, then stepped in her blood as he went for the phone. So maybe the wife committed suicide. Additional evidence should be gathered before attempting to reach a conclusion. Were the man to be taken to trial based on just that evidence, a jury would have every right to find that the prosecution had not proven their case beyond a reasonable shadow of a doubt. But, if after further investigation it is found that the husband had taken out a million dollar insurance policy on his wife just 48 hours before, this would push towards the side of murder. However, if instead it were found that the wife had been going to a psychiatrist for clinical depression and records showed that she had bought the gun just 48 hours before, this would push towards suicide. Note that in either case, it still does not resolve the question of murder or suicide. It simply makes one interpretation more likely than the other. That is the nature of circumstantial evidence.
In the Casey Anthony case, there was NO direct evidence. All evidence presented was circumstantial. And, the defense attorney presented at least a couple of other ways to connect the dots. Let me repeat, in the Casey Anthony case, there was NO direct evidence. After hearing all the evidence, the jury ruled that the prosecution had not sufficiently connected the dots in order to ensure that Caylee was killed by Casey. Remember that in the past, other unlikeable people have been convicted only to be cleared by a later re-analysis of the evidence. Thus the news media is doing the jury a significant injustice as they are going after them in the way that they are. More dangerously, we also are not only doing an injustice to that jury, but also creating a climate in which future juries will be afraid to rule on the evidence and will rule based on the desire to not face the opprobrium of either the “talking heads” or even of us, the public.
As I mentioned in yesterday’s post, the misbehavior of the news media in this country, particularly with respect to criminal cases, is beginning to do some serious damage to our right to a fair trial. What worries me comes from the quote from Oliver Wendell Holmes, Jr., that I cited yesterday. Hard cases make bad law. Both the case in Britain and the Casey Anthony case here have all the potential of leading to bad law and to juries that automatically convict or acquit based not on the evidence but on the likeability of the defendant and the pressure put on them by their fellow citizens and the popular media. This should not be so.
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As a member of the news media who covers courts/crime for a living, I have a reaction to your post (or two). One, the problem in this country is the merger between entertainment-value media reporting (not necessarily good entertainment) and news-value media reporting. As a newspaper reporter, I take my job and its responsibilities very seriously. One of those responsibilities is to be as fair, thorough and factual as I could possibly be, regardless of whatever feelings the case may arouse in me. But someone like Nancy Grace, who is to legal journalism what Glenn Beck/Rush Limbaugh is to political commentary, is not interested in either a. fairness, b. thoroughness and probably c. truth. She’s interested in ratings and ego.
Which leads me to reaction number two. Because of the instant pressure in this case from the media (largely television/tabloid), the prosecutor allowed himself to be sucked into the wrong, but more glamorous charge. A quick perusal of Florida’s child abuse statutes reveals that the state has a neglect of a dependent charge, and it appears that it could have been aggravated for a lengthy sentence. Had they pursued that venue, all they would have needed were basic facts: 1. the child was in your care, 2. the child died in your care, 3. you did not report or seek help and 4. you then lied to the police who tried to help.
But neglect of a dependent is nowhere near as sexy as capital murder (a ridiculous stretch even if they’d had physical/direct evidence). I think this speaks to another problem in our criminal justice system/culture and that is that prosecutors often go for sexy instead of appropriate. That leads to emotionally-laden charges, emotionally-laden arguments and trials and make it much more possible for the truly innocent to be scooped up in the wheels of (in)justice.
Sorry this is so long and rambling, but I thought your post was wonderfully thoughtful.
Good post. And thanks to Rebecca for her insights, especially on glamorous vs. appropriate charges. Very interesting, and sobering.
Excellent set of posts, Father. And, Rebecca, thank you for your insights. I am going to share them as coming from a print journalist, if you don’t mind.