One of the most persistent myths about criminal law is that a purely circumstantial case can't lead to a conviction. Although it sounds cool when a criminal law attorney says that on a TV show or in a movie, it's probably not going to fly in an actual courtroom. Let's look at what circumstantial evidence is, how prosecutors use it, and whether you might be convicted based on it.

Direct vs. Circumstantial Evidence

There are two kinds of evidence a prosecutor can present; these are direct and circumstantial evidence.

Direct evidence is something that points to the defendant committing a criminal act. For example, video from a surveillance camera might show a person matching the defendant's description entering a convenience store and robbing the clerk.

Circumstantial evidence is inherently indirect. It is premised on a particular set of circumstances, such as the presence of a sexual assault victim's DNA on clothing found at the defendant's apartments.

Why Circumstantial Evidence Isn't as Strong

Consider the second example in the previous section; suppose a defendant asserted an affirmative defense that the sex was consensual. Under those circumstances, a reasonable person might assume some of the other person's DNA would be present, especially if they had maintained a long relationship. This may force the prosecution to look for more evidence to prove that ongoing consent hadn't been provided.

Enough Circumstances Add Up

One piece of circumstantial evidence isn't going to make a case. Any competent criminal law attorney will move for the dismissal of a case based on thin circumstantial evidence.

However, enough circumstances will add up. There's a very strong "and" factor with this sort of case.

A prosecutor charging an assault case might show that a defendant had motive and opportunity, was present at the crime scene, made threats against the victim, and showed up at a nearby hospital with hand injuries consistent with punching someone. If the victim's blood and DNA were found on the shirt the defendant was wearing the night of the incident, that's a lot of circumstances that line up.

It's Not Up to the Prosecutor

If you take a case to trial, either a judge, if you choose a bench trial, or a jury is going to decide your fate. Judges and jurors may not be as convinced as a prosecutor is. They will review the facts that the prosecution and your criminal law attorney will present, and the verdict will flow from those facts.