Popular June 2012 LPR Articles

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The Quixotic Campaign to Slay Bayesian Dragons

In my senescence, I was musing, once again, about the decades-long campaign to demonstrate that the the nature of factual inference and proof in American trials cannot be explained, accounted for, modeled, etc., with cardinal numbers and standard probability theory. The odd thing about this campaign was that I do not know many American legal scholars who ever thought that probability theory and the theorem known as Bayes' Theorem "account for" the structure of factual inference and proof in American trials. I understood eminent legal theorists such as Richard Lempert and David Kaye -- and, er, Peter Tillers -- to be saying that one could use probability theory to make arguments about problems of factual inference. (David A. Schum, not a legal scholar, but an eminent probability theorist and an admirer of American and U.K. Evidence scholarship, also took this position.) Different people can use probability theory etc. to make quite different arguments. Probability theory (as far as I can tell) does not mandate (logically mandate) that the American system of proof be designed in some specific and unique fashion. For example, Bayes' Theorem -- it's just a mathematical theorem -- is logically compatible with a system of factual proof in which scenarios and story-telling -- which, by the way, are not synonymous -- play a prominent role.
All of these now-hoary thoughts put me in mind of that curious article about a curious document supposedly discovered in the archives of Cardozo Law School. This is the article:

What say you? Is Peter Pilgrim correct that the campaign to eradicate Bayesianism from the American law of evidence and proof is literally an incoherent enterprise because it rests on the false premise that a mathematical theorem -- Bayes' Theorem -- can somehow be embodied in the American law of evidence and proof? Isn't Peter Pilgrim correct in asserting that Bayes' Theorem is, well, just a mathematical theorem and that it does not itself purport to say anything about factual proof in America (or anywhere else) -- because a mathematical theorem is just a mathematical theorem and such a mathematical theorem "makes an assertion" about the American system of proof only if some person uses the theorem to make an argument about the nature of the American system of proof. So there is no such thing as a "Bayesian system of proof"! Different people can use Bayes' Theorem to make very different arguments and a wide variety (perhaps an infinite variety) of proof practices are consistent with Bayesian logic, standard probability theory, and so on. Well, Peter Pilgrim made these and other points more elegantly and cogently than I ever could. So I will let him speak for himself (see above).

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Miranda Modernized: Warning: Your Tweets and FB Posts May Be Used against You!

My colleague Phil Segal writes:

Tweets and Facebook Posts May Be Used Against You: The courts continue to weigh in on whether social networking may be used against users who post information on their personal sites.  While the judiciary’s responses vary on a case-by-case basis, so far the trend seems to be that posts on Facebook or tweets may be used as grounds for dismissals from jobs, or even against defendants in criminal or civil cases.
Phil says much more in his post The Never-ending Story: Protecting Your Privacy Online (July 6, 2012).



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Polonium and Investigation -- Again

Years ago I blogged -- practically as events were unfolding -- about the apparent assassination of Alexander Litvinenko with Polonium. See, e.g., this post. Now the possibility has been suggested that Yasser Arafat met his death the same way. See the NYTimes article What Is Polonium-210 and How Can It Kill? (July 5, 2012).

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Workshop on Formal Argument and Evidential Discovery

The proposed workshop on "Formal Argument and Evidential Discovery" -- if approved, which is likely -- will take place in Rome on one day (probably Friday) during the week of June 10 - June 14, 2013, in conjunction with ICAIL 2013. The organizers of the proposed workshop are Scott Brewer, Giovanni Sartor, and Peter Tillers. The following people have already expressed more than a passing interest in the proposed workshop: Jennifer Mnookin, Robert Burns, Ronald Allen, Philip Dawid, Burkhard Schafer, Raymundo Gama, Louis Raveson, Jane Campbell Moriarty, Rainhard Bengez, and Mark Spottswood.

The proposed workshop will deal with whether and the extent to which factual discovery differs from factual proof. The topic invites discussion of matters such as (i) abductive inference, (ii) the role of intuition, hunch, and subjective judgment in the process of discovery; and (iii) the role if any of formal argument (including, e.g., statistical methods) in discovery.

Here is ICAIL's announcement of the conference as a whole:

CAIL 2013 is heading to Rome! 

The host institution for ICAIL 2013 will be ITTIG-CNR, the Institute of Legal Information Theory and Techniques of the National Research Council of Italy. The conference venue will be located at the CNR headquarters, at Piazzale Aldo Moro 7. CNR provides world-class conference facilities and is situated in Rome's distinguished university area.

ICAIL 2013 is scheduled to take place during the week of June 10 to 14, 2013.  Conference officials will include Enrico Francesconi in the role of Conference Chair, Bart Verheij as Program Chair and Anne Gardner as Secretary-Treasurer.

We are excited about the venue for the conference, in one of Europe's and the world's great cities. Most of all, we believe the venue will broaden the appeal ofICAIL, and increase its outreach and collaborative possibilities. We hope to attract new researchers by offering a host of existing and new topics under the AI & Law banner.

The EC congratulates the Italian team that drafted its successful proposal, but also wishes to acknowledge the strong proposals submitted from three other sites as well: Paris, France; Braga, Portugal; and Poznan, Poland. This year was the first time that so many highly competitive host proposals were submitted to the Executive Committee. 

In the weeks ahead, more information will be distributed about the Conference Calls for Papers and Calls for Tutorials and Workshops, not to mention theICAIL 2013 Mentoring Program for researchers new to our community.  We will also be sharing additional information about the conference site as well as the conference Web site.  So stay tuned.  Viva l'Italia!

On behalf of the 

IAAIL Executive Committee,

Sincerely,

Radboud Winkels, Univ. of Amsterdam, IAAIL President

Jack G. Conrad, Thomson Reuters, IAAIL Vice President

Anne Gardner, Atherton, CA, IAAIL Secretary-Treasurer

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John F. Sowa on Analogy

Many observers have said that analogy plays an important role in legal reasoning.
John F. Sowa makes the following interesting comment:
Formal reasoning is based on a disciplined use of analogy:

• Induction:  Generalize multiple cases to create rules or axioms.
•  Deduction:  Match (unify) a new case with part of some rule or axiom.
• Abduction:  Form a hypothesis based on aspects of similar cases.

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Pardo on Evidence Theory

The Nature and Purpose of Evidence Theory" 
Vanderbilt Law Review, Forthcoming 2013
U of Alabama Public Law Research Paper No. 2060340

MICHAEL S. PARDO, University of Alabama School of Law
Email: mpardo@law.ua.edu
The past few decades have seen an explosion in theoretical and empirical scholarship exploring the law of evidence. From a variety of disciplines and distinct methodological perspectives, this work has illuminated important issues regarding types of evidence, legal rules and doctrine, the reasoning processes of judges and juries, the structure of proof, and the normative considerations underlying these various issues. This Article takes up the theoretical project writ large. Exploring the landscape of evidence scholarship, the Article examines a number of methodological and meta-theoretical questions: What would a successful evidentiary theory look like? By what criteria should assess such a theory? What is the purpose of such theorizing? What is the relationship between the theoretical and empirical projects? In exploring these questions, the Article identifies criteria by which to evaluate theorizing in this area.

To that end, the Article first identifies two considerations that underlie any theoretical account of the evidentiary proof process and its components: factual accuracy and allocating the risk of erroneous decisions. Next, it articulates and defends general criteria by which to evaluate theoretical accounts in evidence scholarship in light of these considerations. Finally, it applies the general criteria to evaluate two theoretical accounts — a probabilistic conception and an explanatory conception — and concludes that the probabilistic conception fails and the explanatory conception succeeds in light of the theoretical criteria. Along with clarifying evidence theory, the Article also clarifies the relationship between theoretical and empirical scholarship in this area.

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PT: A better title might have been: "The Natures [sic] and Purposes of Evidence Theory." See, e.g., P. Tillers, Trial by Mathematics - Reconsidered & P. Tillers, Are There Universal Principles or Forms of Evidential Inference?
Cf. P. Tillers, The Structure and the Logic of Proof in Trials

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K-9 Savvy

How did the police dogs know?:  

http://www.8newsnow.com/story/18886948/nhp-troopers-sue-department-over-k-9-program 

• Hat tip to Justin Bale

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A race for prestige and revenue

Brian C. Tamanaha, Law Schools Fudge Numbers, Disregard Ethics to Increase Their Ranking, Daily Beast (blog) (June 17, 2012) (the headline masks a broader critique):

Why are law schools hiding the truth? In the depths of the worst legal employment market in decades, when more than one third of recent graduates nationwide have failed to land lawyer jobs, law schools across the country still trumpet employment rates in the 90 percent range, along with glittering six-figure salaries. In response, graduates have filed fraud claims against 15 law schools around the country, with additional lawsuits in the works. Two well respected schools, Villanova and Illinois, have already acknowledged that for multiple years they claimed falsely inflated student credentials.

When called to account for their conduct, legal educators unapologetically say, “The ranking made us do it.” A pathetic excuse, to be sure, but there’s truth to it. I know because I did it too.

[snip, snip]

But ethics for the moment aside, the most harmful consequences wrought by these machinations lie beneath the surface. To increase their LSAT medians, law schools have shifted the bulk of scholarship awards away from need-based to merit-based. In other words, students from wealthy families used to pay full price, while students from less well-off families would receive scholarships. Now those who score below the median on the LSAT are the ones paying full fare, while those who score above get financial aid, whether or not they need it.

It’s a reverse-Robin Hood redistribution scheme: Since well-off students tend to do better on the LSAT due to advantages throughout their education (including their ability to afford test prep courses that improve their LSAT score), the students likely to earn the least in their careers end up defraying the educational expenses of the students who will earn the most.

This manner of allocating scholarships also systematically funnels students from wealthy families to higher-ranked schools and students from middle-class families to lower-ranked schools (you can forget about the poor). To see how this works, consider that a prospective student with an LSAT score of 171 (very good, but not outstanding) would be in the bottom half of the admitted class at Columbia, and must pay full tuition to attend; but this same student would be in the top quartile at Duke, and would receive a hefty scholarship. The student would then have to decide whether it is worth paying $210,000 to earn a law degree at Columbia (counting tuition and living expenses) versus $120,000 at Duke. Students from wealthy families would go to Columbia, reaping better job opportunities, while many students from families with modest incomes will pick Duke. This same dilemma plays out all through the law school hierarchy. Thousands of law students are put to this choice each year, the effect of which channels wealthy students upward and others downward.

What’s the upshot? It is inevitable that the elite legal positions in the coming generation—in the Supreme Court, Justice Department, corporate bar, and law professoriate—will be dominated by children of the wealthy. Pursuing prestige and revenue without heed to the consequences, legal educators are responsible for this. Yes, the rankings are a part of it, but in the end they are just numbers; human beings choose how to use—or misuse—them. The sad irony is that many law professors are liberals who claim to fight for the less privileged in society, yet through our own conduct we are further enhancing the advantages of the one percent.

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Presidential Power

Ross Douthat, a conservative columnist, observes (in the NYTimes, June 23, 2012):

Obama campaigned as a consistent critic of the Bush administration’s understanding of executive power — and a critic with a background in constitutional law, no less. But apart from his disavowal of waterboarding (an interrogation practice the Bush White House had already abandoned), almost the entire Bush-era wartime architecture has endured: rendition is still with us, the Guantánamo detention center is still open, drone strikes have escalated dramatically, and the Obama White House has claimed the right — and, in the case of Anwar al-Awlaki, followed through on it — to assassinate American citizens without trial.

These moves have met some principled opposition from the left. But the president’s liberal critics are usually academics, journalists and (occasionally) cable-TV hosts, with no real mass constituency behind them.

The majority of Democrats, polls suggest, have followed roughly the same path as the former Yale Law School dean Harold Koh, a staunch critic of Bush’s wartime policies who now serves as a legal adviser to the State Department, supplying constitutional justifications for Obama’s drone campaigns. What was outrageous under a Republican has become executive branch business-as-usual under a Democrat.

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N.B. I am one of those addled academics who, despite not being terribly left-wing, believes that Obama has acted unconstitutionally on major questions on perhaps a score of occasions. I genuinely believe that the civil liberties of Americans stand in peril. I also think that the scope of the President's claim of unilateral authority to make war anywhere in the world is, not only breathtaking, but also dangerous in the long run to the entire planet. And to think that Obama was awarded the Nobel Peace Prize! (But the Nobel Peace Prize committee has made other odd choices -- for example, Henry Kissinger.) 

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Think Small

Ashby Jones, New Lawyers, Seeking Jobs, Are Advised to Think Small Wall Street Journal (June 22, 2012):

 A small but growing number of Midwestern law schools are sending a new message to their graduates: Look beyond the lure of high-paying, big-city law firms and consider launching careers in rural towns.

The law schools at the University of Iowa, Drake University in Iowa and Creighton University in Nebraska have teamed up with the Iowa State Bar Association to place students in summer internships and permanent jobs in small Iowa cities such as Fort Dodge (pop. 25,000), as well as small towns including Garner (pop. 3,100) and Britt (pop. 2,100) in the state's sparsely populated northern counties.

  

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The American Roman Catholic Church and American Tort Lawyers

It is not much of an exaggeration to say that the American Roman Catholic Church is fighting for its survival against tort lawyers who are trying to bring large numbers of civil actions for sexual abuse that, in many instances, occurred -- allegedly occurred -- decades ago. The current theater of battle is over persistent efforts by tort lawyers and their allies to get states to abolish or amend statutes of limitations that currently impede civil recoveries for (alleged) misconduct that occurred long ago. In this blog I have intermittently chronicled alleged victims' lawyers' repeated use of junk science ("repressed and recovered memory" and analogous "prods" to memory) in their pursuit of  what they claim is justice for long-silent alleged victims of sexual abuse by Catholic clergy. I am now convinced that a very substantial fraction -- probably the majority -- of claims against Catholic clergy for conduct that allegedly took place decades ago are bogus. I also worry that the selection of the Roman Catholic Church as the principal target of sex abuse claims reflects, not the relative scale of the problem of sexual abuse in different sectors of American society, but, in part, prejudice against the Roman Catholic Church. Consequently, all in all, I am glad to see that the current efforts to get states to remove statutes of limitations as barriers to new tort litigation against the Roman Catholic Church seem to be stymied for the time being.

I would not normally cite or quote New Times articles as a reliable source about the long-simmering [Catholic] clergy sexual abuse scandal -- I believe that the NYTimes' coverage of the scandal has been  gravely unbalanced; the NYTimes generally seems not to not have seriously questioned whether the financial interests of the tort lawyers on which it seems to rely requires that the claims of the tort lawyers (and their clients) be examined with a skeptical eye  -- but, despite the tone of the headline, the innards of the following current article has some material of interest about the current fight over states' statutes of limitations:

Laurie Goodstein & Eric Eckholm, Church Battles Efforts to Ease Sex Abuse Suits NYTimes (June 14, 2012):

Victims [sic!; "alleged victims" would be more appropriate] and their advocates in New Jersey, Pennsylvania, Massachusetts and New York are pushing legislators to lengthen the limits or abolish them altogether, and to open temporary “windows” during which victims can file lawsuits no matter how long after the alleged abuse occurred.

The Catholic Church has successfully beaten back such proposals in many states, arguing that it is difficult to get reliable evidence when decades have passed and that the changes seem more aimed at bankrupting the church than easing the pain of victims. 

Already reeling from about $2.5 billion spent on legal fees, settlements and prevention programs relating to child sexual abuse, the church has fought especially hard against the window laws, which it sees as an open-ended and unfair exposure for accusations from the distant past. In at least two states, Colorado and New York, the church even hired high-priced lobbying and public relations firms to supplement its own efforts. Colorado parishes handed out postcards for churchgoers to send to their representatives, while in Ohio, bishops themselves pressed legislators to water down a bill. 

....

“How can an institution conceivably defend itself against a claim that is 40, 50 or 60 years old?” Mr. Brannigan said. “Statutes of limitation exist because witnesses die and memories fade.”

“This bill would not protect a single child,” he said, while “it would generate an enormous transfer of money in lawsuits to lawyers.”

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Indiana Supreme Court on Circumstantial and Direct Evidence

During the past 100 years and more, many judges and courts have taken a turn at trying to explain the difference between direct and circumstantial evidence. The Supreme Court of Indiana recently decided to do so as well. See Hampton v. State, 961 N.E.2d 480 (Ind. 2012). The Indiana Supreme Court was moved to stumble into this thicket because Indiana case law requires (as the Indiana Supreme Court saw it) a trial judge to instruct the jury that if the evidence against the criminal defendant consists of some kind of circumstantial evidence, the jury must find, not only that the defendant is guilty beyond a reasonable doubt, but also that the evidence is "so conclusive and sure as to exclude every reasonable theory of innocence." Id. at 482. In the eyes of the Indiana Supreme Court, the need for such a jury instruction made it necessary for the Court to discuss the difference between direct and circumstantial evidence. It did so. After discussing the (supposed) difference, the Court concluded that the "reasonable theory of innocence" instruction is necessary when "where the conduct of the defendant constituting the commission of a charged offense is proven exclusively by circumstantial evidence." Id. (emphasis added). But the court's attempt to explain the distinction between direct and circumstantial evidence was bound to be as confusing and as murky as it was -- because the court got off on the wrong foot -- because there is in fact no difference between direct and circumstantial evidence.
The Indiana court's opinion not only added to the considerable body of judicial and academic murk about the supposed difference between direct and circumstantial evidence. The opinion also endorsed, in an unfortunately-retrograde way, that circumstantial evidence is weaker than direct evidence and that, for that reason, circumstantial evidence requires special handling -- such as by the giving of the "reasonable theory of innocence" instruction. In my view, consistency requires that the instruction, which probably does no discernible harm, should be given in every criminal trial where the issue is factual guilt or innocence.
Here, for what it is worth (which is not much), is an extract from the Indiana Supreme Court's opinion (but the extract does have a useful survey of authorities):
1. Instructing Juries to Use Caution when Evidence is Circumstantial

A. Need for a Special InstructionThe importance of a "reasonable theory of innocence" instruction is deeply imbedded in Indiana jurisprudence. {PT: string of Indiana citations omitted} "[T]his Court has never departed from the conviction that the ['reasonable theory of innocence'] standard is a proper one to be employed at the trial court and a defendant is entitled to an instruction to that effect." Spears, 272 Ind. at 638, 401 N.E.2d at 335.


We note that a number of more recent American appellate decisions appear to place less emphasis on the need for similar instructions. See Irene Merker Rosenberg & Yale L. Rosenberg, "Perhaps What Ye Say Is Based Only on Conjecture"—Circumstantial Evidence, Then and Now, 31 Hous. L. Rev. 1371, 1400-01 nn.121-22 (1995) (noting that at least twenty-nine states have eliminated a specific jury instruction on circumstantial evidence).2  This trend sprang after the United States Supreme Court's decision in Holland v. United States, 348 U.S. 121, 75 S. Ct. 127, 99 L. Ed. 150, 1954-2 C.B. 215 (1954), in which the Court rejected a claim of reversible error for the refusal "to instruct [the jury] that where the Government's evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt." Id. at 139, 75 S. Ct. at 137, 99 L. Ed. at 166. Without extensive explanation, the Court concluded that "the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect." Id. at 139-40, 75 S. Ct. at 137, 99 L. Ed. at 166. We understand Holland to hold that including an additional "reasonable theory of innocence" instruction is not required but not that it is constitutionally erroneous.

[T]he Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. Cf. Hopt v. Utah, 120 U.S. 430, 440-41, 7 S. Ct. 614, 618-20, 30 L. Ed. 708 (1887). Indeed, so long as the court instructs the jury on the necessity that the defendant's guilt be proved beyond a reasonable doubt, see Jackson v. Virginia, 443 U.S. 307, 320, n.14, 99 S. Ct. 2781, 2789, n.14, 61 L. Ed. 2d 560 (1979), the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof. Cf. Taylor v. Kentucky, 436 U.S. 478, 485-86, 98 S. Ct. 1930, 1934-35, 56 L. Ed. 2d 468 (1978). Rather, "taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury." Holland v. United States, 348 U.S. 121, 140, 75 S. Ct. 127, 137, 99 L. Ed. 150, 1954-2 C.B. 215 (1954).

Victor v. Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 1243, 127 L. Ed. 2d 583, 590 (1994) (alteration in original).


Subsequent to Holland, opinions from several states began to conclude that a "reasonable theory of innocence" instruction incorrectly suggests that circumstantial evidence is inherently less reliable.3 See, e.g., State v. Humpherys, 134 Idaho 657, 661-62, 8 P.3d 652 (Idaho 2000); People v. Bryant, 113 Ill. 2d 497, 499 N.E.2d 413, 420-21, 101 Ill. Dec. 825 (Ill. 1986); State v. Wilkins, 215 Kan. 145, 523 P.2d 728, 737 (Kan. 1974); State v. Lewisohn, 379 A.2d 1192, 1210 (Me. 1977); State v. Smith, 92 N.M. 533, 591 P.2d 664, 671-72 (N.M. 1979); State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492, 502 (Ohio 1991), superseded by state constitutional amendment on other grounds as recognized in State v. Smith, 80 Ohio St. 3d 89, 1997 Ohio 355, 684 N.E.2d 668 (Ohio 1997); Easlick v. State, 2004 OK CR 21, 90 P.3d 556, 559 n.3 (Okla. 2004); State v. Roddy, 401 A.2d 23, 34-35 (R.I. 1979); State v. Gosby, 85 Wn.2d 758, 539 P.2d 680, 684-86 (Wash. 1975). Still other states reversed course by simply citing the Holland decision without any cogent analysis. See State v. Grippon, 327 S.C. 79, 489 S.E.2d 462, 464-67 (S.C. 1997) (Toal, J., concurring) (quoting Rosenberg & Rosenberg, supra, at 1402) ("[T]he widescale abandonment of the special circumstantial evidence charge has resulted  [486]  mostly from a 'bandwagon effect' following Holland, rather than from a reasoned rejection of the longstanding rule.").

In contrast, however, numerous jurisdictions uphold the requirement of a "reasonable theory of innocence" instruction. For example, New York's high court explained:

[T]he rule [requiring the instruction] draws attention to the fact that proof by circumstantial evidence may require careful reasoning by the trier of facts. By highlighting this aspect, the rule hopefully forecloses a danger legitimately associated with circumstantial evidence—that the trier of facts may leap logical gaps in the proof offered and draw unwarranted conclusions based on probabilities of low degree.

People v. Ford, 66 N.Y.2d 428, 488 N.E.2d 458, 465, 497 N.Y.S.2d 637 (N.Y. 1985) (citation omitted). Other jurisdictions continue to instruct that juries should consider whether circumstantial evidence excludes every reasonable hypothesis, explanation, or theory of innocence. See, e.g., People v. Bacon, 50 Cal. 4th 1082, 116 Cal. Rptr. 3d 723, 240 P.3d 204, 225-26 (Cal. 2010); Davis v. State, 285 Ga. 176, 674 S.E.2d 879, 880-84 (Ga. 2009); State v. Percy, 822 So. 2d 823, 828 (La. Ct. App. 2002); People v. DeWitt, 173 Mich. App. 261, 433 N.W.2d 325, 329 (Mich. Ct. App. 1988); McInnis v. State, 61 So. 3d 872, 875-76 (Miss. 2011); State v. Steele, 211 N.W.2d 855, 867 (N.D. 1973); State v. Teague, 680 S.W.2d 785, 790 (Tenn. 1984).

We believe that discarding the "reasonable theory of innocence" jury instruction is unwise. HN1 While a criminal conviction may properly rest entirely upon circumstantial evidence, there is a qualitative difference between direct and circumstantial evidence with respect to the degree of reliability and certainty they provide as proof of guilt. Such a supplemental instruction is a safeguard urging jurors to carefully examine the inferences they draw from the evidence presented, thereby helping to assure that the jury's reasoning is sound. Additionally, it serves to "reiterat[e] the magnitude of the ['proof beyond a reasonable doubt'] standard to juries when the evidence before them is purely circumstantial." Nichols, 591 N.E.2d at 136. In this regard, the "reasonable theory of innocence" instruction informs the jury that if a reasonable theory of innocence can be made of the circumstantial evidence, then there exists a reasonable doubt, and the defendant is entitled to the benefit of that doubt.

Such a "reasonable theory of innocence" instruction, when appropriate, is not satisfied by the instruction on reasonable doubt. The State argues that our statement in Nichols—that the "reasonable theory of innocence" instruction is a way of restating "proof beyond a reasonable doubt"—renders the instruction "duplicitous."4 Appellee's Br. at 12. To the contrary, providing the jury with an additional cautionary instruction in evaluating circumstantial evidence not only supports but further enhances the concept of requiring proof beyond a reasonable doubt. It admonishes the jury to tread lightly where the evidentiary gap between logical certainty and guilt is more tenuous. For these reasons, we find it altogether appropriate that juries receive, where appropriate, a "reasonable theory of innocence" instruction in addition to the standard reasonable doubt instruction.


B. Language of the Instruction
This special advisement has traditionally been accomplished in Indiana by an instruction like the one rejected by the trial court in the present case. Language within Indiana Pattern Jury Instruction 12.01 provides: "Where proof of guilt is by circumstantial evidence only, it must be so conclusive in character and point so surely and unerringly to the guilt of the accused as to exclude every reasonable theory of innocence." Ind. Pattern Jury Instruction—Criminal 12.01 (emphasis added). Effective juror comprehension and application, however, are compromised by impediments in the instruction's language—especially the uncertainties embedded in the phrases "proof of guilt" and "by circumstantial evidence only."

First, the instruction's language—that it applies where proof of "guilt" is "circumstantial only"—is potentially confusing. "Proof of guilt" could require that any evidence which supports an individual element of the charged offense be circumstantial, or it could require that all the evidence related to all elements of a charge be circumstantial. Compare Spears, 272 Ind. at 636-40, 401 N.E.2d at 334-35 (finding sufficient absence of direct evidence to warrant "reasonable theory of innocence" instruction despite direct evidence that the defendant and the victim were fighting earlier in the evening and that the victim was later found unconscious in the hallway, and that he died from skull fractures likely caused when his head hit the floor), with Davenport v. State, 749 N.E.2d 1144, 1149-50 (Ind. 2001) (affirming refusal of "reasonable theory of innocence" instruction where victim died of strangulation and had thirty-nine injuries and witness observed defendant beating on the victim several hours earlier). In most criminal prosecutions, there is some direct evidence that the charged crime was committed by someone. Thus, if the phrase "by circumstantial evidence only" is construed to not require jurors to consider whether there exist reasonable alternative theories of innocence whenever the occurrence of a criminal offense is shown in part by direct evidence, then the instruction would rarely, if ever, be used. On the other hand, the mens rea element for a criminal offense is almost inevitably, absent a defendant's confession or admission, a matter of circumstantial proof. Thus, requiring jurors to consider the possible existence of an alternate reasonable theory of innocence whenever proof of the mens rea element is circumstantial would lead to use of the instruction in most all criminal cases. See Spears, 272 Ind. at 639-40, 401 N.E.2d at 335 (requiring the "reasonable theory of innocence" instruction when circumstantial evidence is the exclusive proof of the actus reus5 but not when used to  [488]  prove the mens rea: "To hold otherwise would require a circumstantial evidence instruction in every case involving a crime containing the element of intent. Unnecessary confusion would result from such a course.").

From our review of jurisdictions employing an instruction similar to our "reasonable theory of innocence" instruction, we find no consistent approach to resolving these issues. Mississippi requires an instruction requiring the "exclusion of all reasonable hypotheses consistent with innocence" whenever there is any "direct evidence" such as "an admission or confession by the defendant to a significant element of the offense, or eyewitness testimony to the gravamen of the offense charged." McInnis, 61 So. 3d at 876 (emphasis omitted) (quoting Kirkwood v. State, 52 So. 3d 1184, 1187 (Miss. 2011)) (internal quotation marks omitted). In Michigan, juries are instructed that "[i]f the direct and circumstantial evidence, taken together, is open to two reasonable constructions, one indicating guilt and the other innocence, it is your duty to accept the construction indicating innocence." DeWitt, 433 N.W.2d at 329 (emphasis added). But Tennessee calls for the instruction only when "the evidence is entirely circumstantial."6 State v. Knight, 969 S.W.2d 939, 941-42 (Tenn. Crim. App. 1997) (emphasis added); see also Teague, 680 S.W.2d at 790.


Notwithstanding the strong support in Indiana case law for the concept of a "reasonable theory of innocence" instruction, in actual fact, the refusal of such instruction has rarely been found to be error, often based on the presence of evidence liberally deemed to be "direct" rather than "circumstantial." See, e.g., Davenport, 749 N.E.2d at 1149-50 (finding direct evidence where son observed his mother being beaten by the defendant, sought to intervene but was struck by defendant and went to bed, and the next day the mother was found murdered by strangulation, which was not witnessed by the son); Clemens v. State, 610 N.E.2d 236, 243-44 (Ind. 1993) (finding direct evidence from the defendant's admission that he was present when the victim sustained his mortal injuries and the pathologist testified that those injuries must have been inflicted intentionally); Chapman v. State, 556 N.E.2d 927, 931 (Ind. 1990) (finding direct evidence from testimony of bank teller who identified defendant as person standing outside bank before the robbery, but who could not see the facial features to identify the hooded robber who perpetrated the robbery). While this Court in Spears, which reversed a murder conviction, evaluated the necessity of giving a "reasonable theory of innocence" instruction by considering whether there was any direct evidence showing the actus reus of a charged crime, rather than just direct evidence of any element of the crime, 272 Ind. at 636-40, 401 N.E.2d at 334-35, this distinction has not yet been applied in any of our ensuing cases. Other than Spears, we find no case from this Court since 1928 that reversed a conviction due to a trial court's refusal to give a "reasonable theory of innocence" instruction. Landess v. State, 200 Ind. 440, 164 N.E. 267 (1928).7
These issues are not clarified by the present pattern instruction, which fails to clearly inform jurors whether the requirement of heightened scrutiny of circumstantial evidence applies only when there is a complete absence of direct evidence on every element of an offense, or when there is an absence of direct evidence with respect to a significant element or crucial component of guilt, or when there is an absence of direct evidence proving any single element of the charged statutory offense, or otherwise.

Second, the instruction unnecessarily calls upon the jury to determine whether evidence of guilt is "circumstantial." Such an evaluation is already the province of the trial judge in deciding whether such instruction is required in light of the nature of the evidence presented. Distinguishing between direct and circumstantial evidence as proof of a particular fact is a legal determination appropriate for judicial evaluation. It may require intricate legal analysis.

Direct evidence is "[e]vidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption." Black's Law Dictionary 636 (9th ed. 2009). Conversely, circumstantial evidence is "[e]vidence based on inference and not on personal knowledge or observation." Id. Indiana case law has expressed it thusly: "Direct evidence means evidence that directly proves a fact, without an inference, and which in itself, if true, conclusively establishes that fact. Circumstantial evidence means evidence that proves a fact from which an inference of the existence of another fact may be drawn." Gambill, 675 N.E.2d at 675. And to explain the meaning of "inference," the jury in Gambill was further instructed: "An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts." Id. But every evidentiary assertion at trial is "direct evidence" of something. That is, it is a fact offered as true and if accepted by the jury as such, conclusively establishes that fact.

In the grouping of circumstantial evidence, difficulty has arisen from not keeping in mind that most circumstantial evidentiary facts must ultimately in turn become themselves a proposition and be proved by "direct" evidence and also from confining the latter term to assertions of some main fact in issue. For example, the finding of a bloody knife upon the accused after a secret killing is a circumstance from which an important inference may be drawn; yet this fact of the finding must be proved by some person's assertion.

IA John Henry Wigmore, Evidence § 25, at 955 (Tillers rev. 1983) (footnote omitted). Thus, as another example, footprints  [490]  or fingerprints that place an accused at the scene of a crime may be direct evidence of the accused's presence at some point in time but only circumstantial proof that the accused committed the charged offense.8


C. Reformulating the Use and Language of the Instruction
To preserve our historic recognition that juries in criminal cases should be reminded to use particular caution when considering whether to find guilt based solely on crucial circumstantial evidence, we conclude that a special instruction is appropriate, but we reformulate the manner of use and language of the instruction. First, we find it inappropriate to include language burdening the jury with the task of deciding whether to apply the reasonable theory of innocence standard. Whether an instruction is supported by the evidence is a matter for the trial court to determine, and it need not be reevaluated by the jury. Second, because Indiana jurisprudence recognizes the importance of such an instruction in certain cases involving circumstantial evidence but our case law reveals a reluctance to find reversible error for failure to give the instruction if there is substantial direct evidence of guilt, we elect to apply the approach taken in Spears and direct that the "reasonable theory of innocence" instruction is appropriate only where the trial court finds that the evidence showing that the conduct of the defendant constituting the commission of a charged offense, the actus reus, is proven exclusively by circumstantial evidence. As discussed above, to deny the availability of a "reasonable theory of innocence" instruction whenever there is any direct evidence of the fact that a criminal offense has occurred, however, could render the instruction unlikely ever to be used, but requiring the instruction whenever there is no direct evidence of any single element would compel its use in almost all criminal  cases because mens rea is often shown only by circumstantial evidence.

We thus hold that, when the trial court determines that the defendant's conduct required for the commission of a charged offense, the actus reus, is established exclusively by circumstantial evidence, the jury should be instructed as follows: In determining whether the guilt of the accused is proven beyond a reasonable doubt, you should require that the proof be so conclusive and sure as to exclude every reasonable theory of innocence.
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The underlying flaw in the Indiana Supreme Court's attempted solution is that it did not see that the evidence in every criminal case (and, indeed, in every type of case) is "exclusively circumstantial" because in no instance are any of the facts at issue in judicial proceedings established by "direct evidence," i.e., without the intervention of inferences.

• It is true that testimonial evidence has characteristics that distinguish it from from non-testimonial evidence. But testimonial evidence, like non-testimonial evidence, requires the use of inferences if testimonial evidence is to ever do its job, which is to serve as proof (to some degree) of some fact.

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