Non-Flight as Circumstantial Evidence


Charge: robbery. D offers evidence that while being transported before trial from one city to another, he and the transporting officer stopped at a restaurant for a meal. D's handcuffs were removed, but he made no attempt to flee. The prosecutor objects on the grounds of irrelevancy. D contends that failure to flee when an opportunity is presented is proof of an innocent frame of mind that, in turn, leads to an inference that he had acted in conformity with that state of mind and had not committed the offense charged.

Should the evidence be admitted? Is it relevant? What is the standard of probative worth that evidence must meet to be admissible?


These problems present situations where evidence connected with the individual singled out for suspicion, rather than evidence found at the scene of the crime or connected to the scene, is used to link the individual with the crime. In addition (and unlike the problems in the previous section where the evidence was tangible), these problems require the factfinder to delve inside the mind of the accused to make the link between the individual's state of mind and his or her actions.

In the flight case, the chain of inferences that must be made for the evidence to be relevant is: the accused departed suddenly and unexpectedly, and therefore she fled; the defendant fled because she was conscious of her guilt and afraid of being apprehended; the defendant was conscious of her guilt and afraid of being apprehended because she was guilty. These inferences may not be valid in every case. A sudden and unexpected departure may be for reasons other than flight from a crime. Even if a person flees from the scene of a crime, it may not be because she thinks herself to be guilty. She may be afraid that she will be unjustly accused. Or may not want to get involved as a witness. And even if the person flees because she thinks she is guilty, the person may in fact not be guilty under the law. Moreover, flight looks bad. There is a strong possibility that the jury may make all the connections in the chain of inferences and regard the evidence of flight as more probative of guilt than it really is. In fact, it is possible that evidence of flight may be enough to eliminate a large area of doubt that would otherwise have resulted in a verdict of acquittal.

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