I have to say, when I recently tried the murder trial of State v.State V Shaver, an epiphany came to light. Not simply an epiphany of the law, but confirmation of how the law might be so moving in an improper direction. Second, is the standard of circumstantial evidence being properly interpreted in the courts and by counsel today? What topic raised this subject, and how did it present itself? All too often, the State seeks admission of evidence under a claim that the evidence is “circumstantial evidence.” That assertion is frequently presented and possibly little if any attention is scrutinized by the courts. No inquiry of linking the evidence is often requested by the courts, and all too often not is volunteered. Way too often, the courts blindly accept such evidence as relevant evidence and probative evidence under the Florida Evidence Code. Neither does there appear to be a concerted inquiry as to the potential balance of the prejudicial impact were the court to accept the same. My conclusion is that the courts may possibly be misinterpreting the law, and not closely following the current standard. We can expect this law to change dramatically and relatively soon.
First, what is “circumstantial evidence?” That is a process where a party may present one fact without any physical evidence and seek to have the jury infer from that another conclusion. Such conclusions are normally logical and flow from the first principle. An example would be that, as a matter of fact, there exist two tidal bulges every lunar day. There will be two high tides and two low tides. The hourly conversion is two high tides and two low tides occur every 12 hours and 25 minutes apart. If it was high tide at a particular hour, logically and inference may be concluded about the tide at any particular hour else wise. That’s a pure example of circumstantial evidence. It presents a connective link in the evidence presented. The courts have declared it must have some connective link to the evidence, Agatheas v State, (Fla. 2011). However, parties abuse this flow of connective logic, and sadly, the courts may overlook the logic, and such evidence comes in by mistake or misinterpretation.
As the courts ignore this topic, appeals are created wherein questions of admission and abuse of discretion develop. The law thereupon, like the concept, naturally flows in different directions, like the tides at different hours. Such evidentiary calls are costly in all directions.
This argument of circumstantial evidence recently came to light when I was seeking to exclude digital data in advance of a homicide trial. In more than one instance, there existed no connective link between Facebook data and the physical IP address to a potential computer or location. Likewise, the intermediary, to wit: Comcast could not assert the reliability of third-party records once the records had been destroyed by the primary company. Such issues are presently on appeal in post-litigation at this time on the same case. When challenging the submission, the State simply shrugged their shoulders and declared, “well judge the data logs will be used to establish a timeline here.” Timeline logs created in anticipation of litigation by law enforcement themselves raising a whole separate issue in itself.
In arguing this point, I directed the State and court to some prior case law on the separate subject of circumstantial evidence aside from the necessary predicate for digital data. The law being, State v Knight, 107 So. 3d 449, 456-57 (Fla. 5th DCA 2013), approved, 186 So. 3d 1005 (Fla. 2016); State v Sims, 110 So. 3d (1 DCA 2013); and State v Law, 559 So. 2d 187, 188 (Fla. 1989) and further back. These decisions had dealt repeatedly with the State coming in and arguing cases with little if any supporting evidence. Usually an eyewitness alone with a lack of corroborate physical evidence would not be sufficient, and special instructions had been established for circumstantial evidence cases. Further, the stacking of circumstantial inferences would not suffice as announced in Sims, supra. The law thereupon developed and acknowledged that, absent some corroborative physical evidence, the verdict could either not stand or was entitled to special instructions. The process of simply stacking circumstantial inferences would not support the verdict. This seemed quite logical considering our Founding Fathers had put a premium on criminal cases wherein liberty was at stake. There the State was and still is required to prove guilt beyond a reasonable doubt.
Over time, some asserted that such instructions were cumbersome and confusing, and again the law seemed to be altered. A bearing case was a Federal case referred to as
Holland, cited as 348 U.S. AT 139-40, 75 S.Ct. 127 (1954), [emphasis added]. Moving in reverse of assumed development, the State cited Holland which stated the following:
“Circumstantial evidence … is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.”
Id. at 140, 75 S.Ct. 127.
The case of Bush v State, 295 So. 3d 179, 200 (Fla. 2020) declared we now hold that even a death sentence case may be upheld absent direct evidence. But where does that leave us today? How is circumstantial evidence today to be admitted?
The District Court in Smith v Carlisle, 378 So. 3d 1213 (1st DCA 2024) kindly and thoroughly breaks down the case law as cited above. What is represents is that we have presently moved in reverse, and back to an original case known as Voelker v Combined Ins. Co. of Am., 73 So. 2d 403 (Fla. 1954). Grasp this if you can, and you tell me whether we are moving forward. Voelker declared as follows:
“Stacking one inference upon another as a method of establishing an ultimate fact ordinarily should not be indulged unless the first inference meets a test which may be analogized to the criminal rule concerning circumstantial evidence, “only if the prior or basic inference is established to the exclusion of any other reasonable theory.” Id at 407
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