Justice Matters with Bryan Porter: Circumstantial evidence is crucial for prosecutors

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Bryan Porter in 2016 (Courtesy photo)
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By Bryan Porter

Imagine reading an advertisement for a job that described the requirements of employment thusly:

“The successful candidate will be given no formal training and little instruction about how to perform the job. The successful candidate will immediately be asked to make extremely serious decisions and will have to argue her position with 11 strangers in a small, windowless room. The pay is $30 a day.”

Would you willingly apply for the position? Probably not – and for this reason, this position is filled only by issuing a juror summons.

Jury service is an extremely important civic duty but, given how difficult it is to act as a juror many people are averse to serving. The stress level involved in reaching a verdict is even higher in serious cases, such as a murder. Compounding the problem, our system has evolved so that the judge and lawyers involved in a case provide only a modicum of information about the case to prospective jurors. While this system exists to avoid unduly influencing the outcome of a trial, there is no doubt that many jurors are stunned to learn that the judge is unable to answer many of the seemingly innocuous questions the complexities of a trial raises in their minds.

What little information people bring with them into the jury room often comes from television and the movies. This necessarily means that prosecutors often encounter prospective jurors who have preconceived notions about the conduct of a criminal case. Part of the prosecutor’s job is disabusing the juror of any inaccurate views they may harbor so that the matter is judged only on the evidence presented at trial.

For instance, anyone who has ever watched a police procedural knows the phrase “circumstantial evidence.” Because of cinematic portrayals, most lay people consider that term to be a synonym for “weak case.” Nothing could be further from the truth. Allow me to give “circumstantial evidence” a public relations makeover.

As “Helter Skelter” prosecutor Vincent Bugliosi once noted, circumstantial evidence is best thought of not as a chain, where the breaking of one link causes the entire chain to fail. Instead, a better metaphor is a rope. A rope is made of hundreds of threads, and even if one thread fails, the rope itself is still strong because of the hundreds of other threads that comprise it.

Furthermore, DNA is circumstantial evidence. Fingerprints are circumstantial evidence. When I make this point in closing argument, I often see jurors’ jaws drop, but it’s true. The fact that someone’s DNA was left at a crime scene does not mean they committed the offense. There are other possible explanations about how the DNA got there, but the presence of DNA at a crime scene is a circumstance a jury can consider in making their decision. Depending on the case, DNA may be an extremely powerful circumstance – but it is a circumstance nonetheless. The only truly direct evidence is a video of the crime being committed or an eyewitness identifying the criminal. Depending on the case, these pieces of direct evidence may present their own problems.

Almost every murder case is built on circumstantial evidence. In a murder case, the best witness — the victim — is dead, and therefore obviously cannot testify. Usually, the only other witness is the defendant, and he probably isn’t going to take the stand and testify. So, if there are no other eyewitnesses, the prosecution absolutely must rely on circumstantial evidence. In fact, in almost every murder case, we necessarily have to build the case entirely on circumstantial evidence. If we did not, murderers would go unpunished.

Can you imagine a prosecutor telling the mother of a murdered child: “I’m sorry, yes, we have powerful circumstantial evidence, but since there is no direct evidence, we are going to have to let the murderer go free?” If this were our practice, we would, in effect, be telling prospective murderers “just make sure no one is watching, wear gloves and get rid of the gun before the police are on to you and you’re home free.”

This is not, and simply cannot be the law without reducing our society to a state of mortal peril. By necessity, prosecutors and detectives are often required to rely on circumstantial evidence to hold violent criminals accountable.

The writer is Commonwealth’s Attorney for Alexandria.

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