Circumstantial evidence

EDMUND PEARSON

Citing several celebrated instances to prove that indirect evidence is more often right than wrong

"Oh, no!" said the man in the sweater, "I wouldn't convict anybody on circumstantial evidence. Too tricky. Why, look at that play I saw last week. Young fellow's caught red-handed; standing over the body of his uncle. Has a gun in his hand, and the bullet that killed the old man fitted the gun. The young fellow had quarreled with his uncle about the will, and about a girl, only the night before. Threatened him. Looked like an openand-shut case. And yet he didn't do it, at all. No, sir. The murderer was one of these East Indian yogi-men, who had climbed down the lightning-rod and shot the old fellow with the boy's gun. The dead man had offended the yogi, somewhere in the East, years before. That shows how unreliable circumstantial evidence can be."

This monologue on the law was now interrupted. Two men came into the locker room, and one of them said:

"I'll tell you that Peter Reynolds is a coming champion. He just turned in a card with 86. Played the seventeenth hole in 4. That's speed!"

The man who had been denouncing circumstantial evidence turned round with a growl.

"Says you! Who saw him play it? Peter and his caddie, I suppose. Well, I wouldn't believe either of 'em on oath. I was playing a little way behind him last Saturday, and came in half an hour later. He claimed 5 on the seventeenth, that day. Well, I know better. The water in the duck pond was all stirred up; they'd been hunting for a lost ball. And I found it, with Peter's initials on it, driven into the mud. No one can lose a ball on that hole and still turn in a 5, much less a 4. About 8 is what he deserves."

On the veranda, also, the subject of evidence was being discussed. The same murder trial had provoked both conversations.

"Certainly, I am going to sign the petition to the Governor. Why, the poor fellow was convicted on circumstantial evidence. It's outrageous. Suppose he did have the money and the girl's gold pin in his pocket. He says that he met a man, a stranger, who gave it to him. ... I don't see why you laugh, Eloise. There's no crime in having a gold pin in your pocket. The evidence was entirely circumstantial, I'm told, and that's simply outrageous. . . . Oh, are you going back before lunch? I'll drive you down. ... Yes, we let Jerry go. He was a good chauffeur—or he seemed to be, at first. He would drink. No, I never saw him drunk, exactly, but twice I found an empty flask in the car. And last Sunday he took the car, while I was at Church, and went to ride with one of those girls from that icecream shop. ... A regular petting party! . . . Well, I can use my eyes. When he came back to get me, he had smears of lip-stick all over his chin. Anyone, not absolutely dumb, would know, I should think!"

Despite the fact that all of us draw conclusions, and proceed to action, almost every day of our lives, upon circumstantial evidence, an enormous number of people have a foggy notion that this kind of evidence is merely another name for suspicion.

Thoreau cites, or is said to cite, the event of the man who found a trout in the milk. He did not even listen to the milkman's explanations. A revenue officer sets one of his men to watch a snow-covered and trackless road through the woods, to see if the bootleggers are sending their trucks that way. In the morning, the chief officer comes back, and sees the unmistakable marks of a heavy truck, cut deep in the snow. The chief does not care how many solemn statements are sworn to by his subordinate that no one has passed by. He knows that the man has been fixed.

The classic illustration of the footprint was eloquently stated by District Attorney Knowlton in the Borden trial:

"When that solitary man had lived on his island for twenty years and believed that he was the only human being there, and that the cannibals and savages that lived around him had not found him, nor come to his island, he walked out one day on the beach, and there he saw the fresh print in the sand of a naked foot. He had no lawyer to tell him that that was nothing but a circumstance. He had no distinguished counsel to urge upon his fears that there was no chain about that thing which led him to a conclusion. His heart beat fast; his knees shook beneath him, he fell to the ground in fright, because Robinson Crusoe knew when he saw that circumstance that a man had been there that was not himself. It was circumstantial evidence; it was nothing but circumstantial evidence, but it satisfied him."

Nevertheless, confusion and doubt exist everywhere. For years the novelists and playwrights, and more especially the criminal lawyers, have done a vast amount of woolpulling over the eyes of the public. When a lawyer has undertaken to save some obviously guilty person from a just punishment, he takes down a copy of Phillips "Famous Cases of Circumstantial Evidence" and commits to memory one of its many heart-rending tales. How, for instance, a traveller in an English inn, two hundred years ago, was found murdered, while the landlord stood over him, his hands bathed in gore. How the landlord was seized and hanged, and how, years later, someone else confessed that he had done the deed. The landlord was intending to commit the robbery and murder, but the other had beaten him to it. And so the poor landlord was judicially murdered, and,—gentlemen of the jury, have that in mind when you are considering the case against my client!

Direct evidence is the testimony of an eyewitness to the fact. Circumstantial evidence is drawn from incidents or events which tend to prove the point at issue. It is direct evidence when a teacher tells the head-master that he has seen two boys smoking cigarettes in the study. It is circumstantial, when the head-master, having seen the two boys leaving the study by the only door, enters immediately afterwards, and finds the room full of cigarette smoke, and two smouldering stubs in an ash-tray.

There may be a defect in the direct evidence if the teacher has made a mistake in identifying the two boys, or again, if he is lying about the whole matter. There may be a defect in the circumstantial evidence if the boys were not smoking at all, and if the smoke and the cigarette ends were introduced into the room by someone else—say the housekeeper, or the laundress, who was bent on getting the boys punished, in order to carry out a fiendish scheme of revenge, and so entered by a trap-door, planted the false evidence, and departed by shinning up the chimney. There is a slight air of unreality about this; something a little foreign to the events of real life. But nothing more grotesque than the schemes invented by the detective novelist or writer of crime plays bent on proving that it is only the improbable that ever happens.

One circumstance alone may not be convincing. It is the combination of many which leaves but one conclusion. If a man is found dead, with my fingerprint on the knife in his heart, it is possible that there may be an innocent explanation. But if it turns out that I had made a secret appointment to meet him at that place; if I vanish immediately after the murder, and am found living under an assumed name in Tahiti, having shaved off the red beard which has been my pride and glory for thirty-five years; and if I have in my possession three Liberty bonds, the watch, shirt studs, and gold-mounted fountain pen which belonged to the murdered man, it is going to take some resolute scepticism about circumstantial evidence to believe in my innocence. Doubtless, my attorney will passionately protest that nobody saw me kill the man. And he will trot out all the old stories about false convictions by circumstantial evidence.

Circumstantial evidence has been too much blamed for the errors of the law. I am inclined to believe that mistaken or perjured evidence has done far more harm than the circumstantial variety. False identification by direct witnesses sent Joseph Lesurques to the guillotine. Perjured testimony by a direct witness, sent Lieutenant de La Roncière to prison. False testimony, by witness after witness, locked Adolf Beck in jail. Mistaken and careless testimony by alleged eye-witnesses put Oscar Slater in prison, and nearly brought about his execution.

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The innocent man, accused of crime, has not so much to fear from the evidence of circumstances, as he has from the mistakes of honest people or the deliberate enmity of the hostile witness.

A woman who was apparently guilty of a horrible murder in New York escaped all penalty, because of one juror. He said that he refused to convict except upon "circumstantial evi dence in the fourth degree." He was asked to define this novelty, and said that it meant:

"Four eye witnesses who swear that they saw the act committed."

Yet he was not much more of an ignoramus than the man in the lockerroom, cited at the beginning of this article.