Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.


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E. Problems in Circumstantial Proof (69)

Problem - Stella's Silk Stockings (69)

(People v. Adamson, 27 Cal. 2d 478, 165 P.2d 3 (1946), affd 332 U.S. 46 (1947))

The point:

Evidence about the person of the defendant carries with it a greater risk of prejudice than evidence from the scene of the crime. Even though the stocking tops do not match the bottoms, the evidence is relevant under FRE 401's minimum threshold standard. Their potential for prejudice might, however, justify their exclusion under FRE 403.

Answer and Analysis:

Even though the stocking tops and bottoms don't match, they tend to show that the defendant had a use for stocking tops. Apparently, so did the killer. A person investigating this crime would clearly be interested in the stocking tops found in defendant's room. In Rule 401's terminology, the presence of the stocking tops make it more likely that Adamson was the killer than it would be if the stockings had not been found. Thus, the evidence is relevant.

The problem is that the evidence may seem much more relevant than it is, and therefore may be prejudicial. The defendant was black. The jury, judge and lawyers were white. The probative value of the stocking tops found in the defendant's room in connecting the defendant with the scene depends upon our assessment of how many people other than the defendant have uses for stocking tops. Blacks, particularly in the late 40's, used stocking tops regularly as part of the process of straightening their hair. Also, dock workers used stocking tops when working in cargo holds to keep debris out of their hair. There were probably thousands of people with stocking tops in their bureaus. This seems not to have been brought to the attention of the trial judge and jurors. Thus this evidence creates a risk of two kinds of prejudice. The evidence if unexplained suggests some form of perversion, which may bias the factfinder against the defendant, and the evidence, even if it does not create a bias, may easily be overvalued.

In this case, if the stocking tops were the only evidence against the accused, a directed verdict in the defendant's favor would be appropriate. When ruling on a directed verdict motion, a judge must weigh the sufficiency of the evidence. Can it sustain a conviction? When ruling on the admissibility of any item of offered evidence, a judge may not weigh the sufficiency of the evidence, except as its probativeness must be measured against its prejudicial nature under Rule 403. It is not expected that any single item of evidence will itself satisfy the standard of proof applied on a motion for a directed verdict. As McCormick says, "A brick is not a wall." McCormick, Evidence 185 at 436 (2d ed. 1972).

Further discussion:

Is the potential for prejudice in the admission of the stocking tops found in the defendant's room diminished (or their probativeness increased) if the prosecution also offers proof that the defendant's fingerprints were found on the windowsill of Stella's apartment? The fingerprints link the defendant to the scene, thus eliminating the most severe risk of mistaken use of evidence from the defendant's person -- the risk of overprobativeness. However, the risk that the evidence will be used to suggest that the defendant is a pervert is not diminished.

Note: Adamson, in the Supreme Court of the United States, becomes the vehicle for Justice Black's first great incorporation opinion.

Problem II-11.

Problem - Seven T-Shirts (71)

Answer and Analysis:

This is an old favorite of Professor Chadbourn, purportedly based on the unreported case of Maryland v Smith. See Green, James H Chadbourn 96 HARV. L. REV. 371 n.2 (1982).

The problem reiterates the point made in Adamson. The relevance of the T-shirts is that they tend to identify the accused as the perpetrator of the sexual assault. The assailant had a strong, nauseating body odor; so does the accused. The problem is remoteness and prejudice. The remoteness problem is fairly serious, but again, doesn't this go to weight rather than admissibility?

What about the prejudice problem? Would the fact that the defendant was wearing seven T-shirts at the time of arrest, each dirtier and smellier than the next, tend to suggest to the jury a ground of decision other than that specified by the law? In other words, would the jury be likely to convict the defendant simply because he was a revolting, nauseating creep? This might depend on the time and place of the trial. Suppose the trial involved a hippie motorcycle gang member and took place in a straight-laced, midwestem suburban community that values cleanliness next to godliness.

Employing the distinction between evidence at the scene and that from about the person, we see a real danger of prejudice here if it was the defendant's smelly T-shirts that first brought him to the attention of the police, resulting in his arrest. If this were the case, it would be important to the judge and jury to know how many other people are so unwashed. Yet, given the difficulty of presenting any such evidence, there is a great danger that the probative value of the evidence of the smelly T-shirts will be overvalued. If, however, defendant had been identified without reference to the smelly T-shirts, and only after independent identification was determined to be smelly, then the potential for misuse of the evidence is diminished.

Problem- Bombs, Bats, and Hammers (71)

The point:

Evidence "about the person" raises more serious problems of probativeness and prejudice when it wasn't really about the person -- i.e., when it is "demonstrative" evidence that might have been about the person.

Answer and Analysis:

The evidence in these problems is fundamentally different from the direct testimonial evidence of a witness on the stand and the "real" evidence actually found on or about the accused in Adamson and the T-shirt case. The clothespin, baseball bat and hammer are all "demonstrative" evidence. (Wigmore thought that all of these terms were unsatisfactory and proposed "autoptic profferance" as the more precisely descriptive term for all these items of evidence. Students should be told simply to use the word "exhibit" in court.) In each case, there is no contention that the exhibit was actually used in the commission of the crime, or that the defendant had any connection with such evidence. admission of such evidence thus must rest on some theory different from that used to admit the stocking tops, condoms and T-shirts. The theory that supports the admission of this kind of evidence is that it aids the witness in describing what the witness saw or in explaining what happened.

The key issue usually is what foundation must be laid before use of the evidentiary aid will be allowed. Such exhibits can create a big impression on jurors, who may lose sight of the fact that the exhibit was not actually used in the real event.

This problem is based on three California cases. The clothespin bomb trigger case is People v. McDaniel, 16 Cal. 3d 156, 127 Cal. Rptr. 467, 545 P.2d 843, cert. denied, 429 U.S. 847 (1976). The baseball bat murder case is People v. WiIev. 18 Cal. 3d 162, 133 Cal. Rptr. 135, 554 P.2d 881 (1976). The drywall hammer murder/rape case is People v. Nelson. 63 Cal. App. 3d 11, 133 Cal. Rptr. 552 (1976).

In McDaniel the court permitted the expert to use the clothespin for the limited purpose of aiding the jury in understanding the expert's testimony as to the manner in which such a device might have been triggered. The court relied on the fact that the trial judge was careful in requiring the prosecution to explain through the expert that a clothespin was only one of a number of objects that might have been used to trigger the bomb and that the expert did not know what was actually used.

In Wiley the court upheld admission of the bat and hammer even though the actual murder weapons were never found. The court held that it was proper to admit the bat and hanuner for illustrative purposes because that the proper foundation had been laid through the testimony of the neighbor that the exhibits closely resembled items that she had seen taken from beneath D's bed.

In Nelson, the court held that it was error for the trial judge to permit the use and introduction of the drywall hammer. The court held that weapons and other articles which might have been used in the commission of a crime are inadmissible in the absence of a showing that such a weapon or article was in the possession of the defendant. Here, there was no evidence that D had ever possessed the drywall hammer. Even though the jury was instructed as to the source of the hammer and that its use was illustrative only, the drywall hammer was inadmissible because such a hammer was never seen in defendant's possession, but rather was located for use at trial.

McDaniel seems questionable to us. Even though there was some evidence that defendant had a clothespin in his possession, it is such a common object that the expert's use of a model with a clothespin trigger, when there was no foundational evidence tying the clothespin to any explosives seen in defendant's possession, seems highly speculative. The court's cautionary instruction overlooks the realities of the effect that such a demonstration would have on a jury.

Wiley, on the other hand, seems correct. There was foundational evidence in Wiley that the wounds were such that they could have been inflicted by a hammer and bat such as were actually found under the bed in D's home.

Nelson seems the weakest case for admission because there was no foundational evidence that a hammer such as was introduced was ever found or that D ever had one. D's access to one, when thousands of people have such access, is insufficient foundation for the introduction of a drywall hammer at trial, given the potential prejudice that such exhibits can create.

Further discussion:

This is a good opportunity to anticipate some of the issues raised by the so-called "best evidence rule" (Rules 1001-1008). Students should be asked to think about how much leeway a party has in choosing whether to prove a fact with a picture, a demonstration or a real object when the testimony of a competent witness could prove the same fact. This ties in to the concept of prejudice, as raised in the Lopinson film. When is real evidence necessary to prove a fact? What is the effect of choosing one form of proof over another?

These questions involve sensitive considerations of probative value, prejudice, reliability and, often, strategic choice. By and large, our adversary system employs a free market approach to the choice of evidence: parties are free to prove a fact with any kind of evidence they like. But this free market is restrained by various rules of exclusion that limit parties' choice in certain circumstances. The rule requiring the production of the original document in certain cases (Rule 1002) is just one example. Why do we have such a system? What are its advantages and disadvantages? An alternative system would contain a master list of types of evidence with a hierarchy of preference. In each case, the "higher" or "better" type of evidence would have to be used. This, no doubt, would promote certainty, but at great cost.

Problems - Flight as Circumstantial Evidence (73)


Non-Flight as Circumstantial Evidence (73)

The point:

Evidence of state of mind of the person carries with it all the dangers and defects of evidence about the person plus the additional problem of inferring belief from action and action from belief .

Answer and Analysis:

At common law, evidence of flight was often regarded as nonassertive conduct hearsay or an implied admission by conduct. Of course, if the flight were that of the defendant, it would be admitted under the exception for statements of a party opponent. Under the federal rules, however, assertive conduct is defined out of hearsay (Rule 801(a)); admissions by party opponents are also defined out of hearsay (Rule 801(d) (2) ). Thus, this issue is treated as a problem of circumstantial evidence under Rules 401-403. See McCormick, Evidence 262, 269-275 (2d ed. 1973 ).

In the case on which problem II-14 is based, People v. Perrv, 7 Cal. 3d 756, 103 Cal. Rptr. 161, 499 P.2d 129 (1977), the evidence of D 's flight was offered as corroborative evidence under California's rule requiring that the testimony of an accomplice be corroborated. The court overruled D's irrelevancy objection, holding that the fact that other reasonable inferences or explanations could be drawn from evidence of D's flight did not make such evidence irrelevant and inadmissible as long as one reasonable inference from such evidence was that of D's consciousness of guilt.

In the case on which Problem 11-15 is based, People v. Doran, 24 Cal. App. 316, 100 Cal. Rptr. 886, (1972), the court excluded the offered evidence on the grounds there were too many other inferences that could be drawn from D's negative conduct: fear of being recaptured, fear of being charged with an escape and fear that an unsuccessful attempt to flee would be evidence of guilt. This seems to be inconsistent with the reasoning of Perry. Under Perry the fact that several different inferences may be drawn from evidence does not make such evidence irrelevant if one of the reasonable inferences to be drawn is a relevant inference. Doran can be justified only on the grounds that drawing an inference of an innocent frame of mind from evidence of a failure to flee is so speculative that it cannot be considered a reasonable inference. But it is not immediately apparent why inferring an innocent frame of mind from a failure to flee is any more speculative than inferring a guilty frame of mind from a defendant's flight.

The admissibility of flight evidence under Rule 403 frequently arises. In United States v. Martinez, 681 F.2d 1248 (10th Cir. 1982), the government sought to introduce evidence that shortly after the discovery of several mail bombs in October 1973, the defendant abruptly fled his home and law practice after hearing news reports which named him as a suspect and indicated that a warrant had been issued for his arrest. Extensive surveillance of the defendant's regular acquaintances and relatives was to no avail. Posters seeking information about the defendant elicited no response. Undercover agents who attended the defendant's brother's and mother's funerals were unable to find any trace of him. The defendant allowed his attorney registration and driver's license to expire. Seven years later, defendant was arrested by customs inspectors when he tried to enter the United States under a false name from Mexico.

The trial court concluded that the inferences from flight to consciousness of guilt, from consciousness of guilt to consciousness of guilt concerning the crime charged, and from consciousness of guilt concerning the crime charged to actual guilt of the crime charged were particularly weak. It concluded that under Rule 403, the probative value of the evidence was outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury and waste of time, citing United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977). The Tenth Circuit reversed, distinguishing Myers on the grounds that in Myers, the defendant was suspected of having committed several separate crimes and there was doubt as to which crime may have caused the flight. In Martinez none of those doubts were present. The Tenth Circuit adopted an approach that viewed the facts as a "whole," and under this approach found the facts of Martinez to be very relevant to guilt.

In contrast to Martinez, in United States v. Beahm, 664 F.2d 414 (4th Cir. 1981), the court held that it was reversible error for the trial court to admit evidence of the defendant's flight and to charge the jury that it could consider defendant's flight "immediately after . . . the commencement of an investigation of a crime" in determining guilt or innocence.

In Beahm. after an investigation into allegations of indecent liberties with children on a United States military installation, an FBI agent sought the defendant at the residence where the defendant lived with his girlfriend. When no one answered the agent's knock, the agent left a note requesting the defendant to contact him. The defendant found the note the same day, threw it in a tartan, and departed immediately for Florida after packing a bag and withdrawing $200 from a joint account. The defendant did not tell his girlfriend of his departure and only returned two weeks later after she advised him that if he were innocent he should return.

The court of appeals stated that there was no evidence that the defendant was aware that he was the subject of a criminal investigation. The court noted that defendant did receive a note from the FBI on the day he left for Florida, but this departure did not occur until three weeks after the commission of the crime and nothing in the note suggested that the FBI wanted to arrest the defendant or that it even suspected him. Moreover, the note did not indicate that the incident with the children was involved. The appeals court stated that, in this situation, it was error to allow the jury to draw an inference of ultimate guilt from flight based upon an inference that defendant felt guilty after receiving this note from the FBI. Of particular importance to the court was that the FBI had not accused the defendant of anything at the time of his "flight," much less the particular crime in question. The fact that there was only one set of crimes and one investigation did not make any difference. The court concluded, "[i]f the government wishes to offer evidence of flight to demonstrate guilt, it must ensure that each link in the chain of inferences leading to that conclusion is sturdily supported. See United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977), cert. denied, 439 U.S. 847, 99 S.Ct. 147, 58 L.Ed.2d 149 (1978). The government's failure to substantiate adequately the inference that defendant was aware he was wanted for the crime renders the instruction given the jury in this case irretrievably erroneous." Id.

In a strong dissent, Judge Widener pointed out that the defendant was accosted by the father of one of the victims six days after the incident and told that he was looking for the man who had made the assault on his son and that the man he was looking for rode a motorcycle like the one the defendant was riding. Thirteen days later the defendant was left the note by the FBI agent. The defendant's subsequent sudden and unexpected departure to Florida, without any notice to his employer was sufficient, for Judge Widener, to support an inference by the jury that defendant was aware he was wanted for the crime. 664 F.2d at 422.

The issue of the admissibility of evidence of flight as consciousness of guilt is obviously related to the issue of the use of pre-arrest silence to impeach a defendant's credibility. On this latter issue, see Jenkins v. Anderson, 447 U.S. 231 (1980), at page 79 of the text.



United States v. Silverman, 861 F.2d 571 (9th Cir. 1988)(74)

The portion of the 9th Circuit's long opinion in Silverman which is reprinted here deals with the inference of guilt from evidence of the defendant's attempts to conceal his identity when police officers were seeking to speak with him in his home. The Fifth circuit held the trial court's instruction to the jury that they could infer guilt from his behavior to be erroneous, since the totality of the circumstances did not tend to associate such attempts with consciousness of guilt. As indicated by the strong dissent, this is a close call. Where does the issue become one for the jury?

Jenkins v. Anderson, 447 U.S. 231 (1980)(79)

The Supreme Court articulates a dubious constitutional rule that a defendant who takes the stand can be cross-examined about his silence unless his silence is in response to Miranda warnings. The Court takes this idea to its logical extreme in Fletcher v. Weir, 455 U.S. 603 (1982).

Query: Isn't Jenkins more properly analyzed as a flight-as circumstantial evidence of guilt case? Traditionally, when flight has been offered as circumstantial proof of an accused's guilty state of mind and hence of his guilt, the evidence has been analyzed as conduct hearsay. But under FRE 801(a)'s approach, the conduct is non-assertive (the accused does not intend to communicate anything) and hence not hearsay. As with any nonassertive conduct, the fact finder must rely on the actor's testimonial capacities of perception and clarity, but sincerity is not in question. Hearsay presents no bar; relevance is the only issue.

Under standard relevance analysis, an accused's flight is relevant circumstantially to show a guilty state of mind and hence, guilt. The same reasoning applies to spoliation. If there are explanations for flight other than guilt, the defendant can offer them and the jury will weigh them.

The confusion in the Jenkins case is caused by the fact that the evidence was offered during cross-examination to impeach Jenkins. It looks like impeachment with a prior (non) statement. Indeed, the Court treats Jenkin's two-week "silence" as a prior inconsistent statement. 447 U.S. at 239. But Jenkins made no statement, adoptive or otherwise. The evidence would have been admissible as part of the prosecutions case in chief under the theory that flight is circumstantial evidence of guilt. Under this analysis, there is still a Fifth Amendment problem. But it is a much more manageable problem, and one that has been uniformly resolved against the defendant. As with any piece of incriminating evidence, the defendant has a choice: he can contest it with his testimony or other evidence, or he can stand silent and rely on the reasonable doubt standard.

For an analysis of the Jenkins Fifth Amendment issue, see Aranella, Schmerber and the Privilege Aeainst Self-incrimination: A Reappraisal, 20 AM. CRIM. L. REV. 31, 48-50 (1982).

Problem - Anything You Don't Say Will Be Used Against You (85)

This is essentially Fletcher v. Weir as a problem, introduced at this time to get students thinking about the relevance of this type of circumstantial evidence involving an inference about state of mind. See p. 429 et seq. below for the Court's answer.

Problem- Missing Evidence (85)

The point:

Like evidence of flight, evidence of the attempted destruction of evidence (spoliation) may reflect consciousness of guilt. Such evidence, however, like evidence of flight, requires a trip into the mind of the defendant as well as a connection between the defendant and the crime charged.

Answer and Analysis:

In this problem, the proffered evidence is all circumstantial. Assuming that there is direct testimony that Dr. D actually did examine the exhibits, this would establish that defendant had an opportunity to take and destroy them. As a defendant, D would have had a motive to destroy the exhibits. But one would have to infer from the opportunity and the motive to destroy the evidence that D did in fact destroy the evidence. From the destruction of the evidence one would have to infer further that D destroyed the evidence because he was conscious of his guilt and further that D acted in conformity with this state of mind and committed the act charged.

In the case on which this problem is based, People v. Baker, 39 Cal. App. 3d 550, 113 Cal. Rptr. 248 (1974), the court held that the direct testimony that D was the last person seen with the exhibits, together with his motive to destroy the exhibits, led reasonably to an inference that D took and destroyed them. This is in conformity with the long-standing principle that spoliation, or suppression of evidence, leads reasonably to an inference of a consciousness of guilt and that consciousness of guilt leads reasonably to an inference that the actor was in fact guilty. See generally McCormick, Evidence 273 (2d ed. 1972).

Further discussion:

An interesting variation on the spoliation situation is presented by People v. Grantham, 26 Cal. App. 3d 661, 103 Cal. Rptr. 262 (1972). In Grantham. D was charged with sale of marijuana. D's defense was entrapment, specifically that an undercover police officer had an informer plant the marijuana in D's residence. At trial, D sought to introduce evidence that before the alleged sale, D had filed a false arrest suit against the police department growing out of an arrest of D made nine months before the alleged sale. The prosecutor objected on grounds of irrelevancy.

The prosecution's objection should be overruled. Evidence that D had filed a false arrest action against the police is relevant to establish a reason or motive for the police to seek to entrap D. This is a state of mind fact from which it could reasonably be inferred that the police acted in conformity with that state of mind and did entrap D into committing the charged offense. Even though the evidence may be relatively weak, as long as a jury can reasonably draw such an inference from this evidence, the evidence meets the test of relevancy under FRE 401 and should be admitted. Moreover, when such evidence is offered by the accused, concern with prejudice disappears. Indeed, constitutional confrontation or compulsory process considerations may require that defendants be permitted to offer such evidence.

Smith v. Superior Court, 151 Cal. App. 3d 491, 198 Cal. Rptr. 829 (1984)(87)

This case is included to bring home the potential value of an item of real evidence. The California court's conclusion that its loss or destruction might give rise to an independent tort goes way beyond the traditional remedy for spoliation, but is a logical extension that drives home the relevancy of this kind of proof. Imagine what the closing argument will be like when this independent tort is joined at the same trial with the underlying cause of action!!

Problem - Neither a Borrower nor a Lender Be (91)

The point:

Circumstantial, or inferential evidence is always necessary to prove state of mind of a person. Evidence as to the state of mind of a person may be inferentially relevant to the fact in issue.

Answer and Analysis:

This case is based on Stevenson v. Stewart, 11 Pa. 307 (1849). In the actual case, W's evidence was admitted and judgment for the plaintiff was affirmed. The inference that the plaintiff wants the court to draw from W's testimony is that the defendant needed money at the time he allegedly borrowed it from P and that he was familiar with the process of borrowing money from individuals. In this respect, the evidence would be even more persuasive if W's testimony was that D sought to borrow the same sum for which the note to P was subsequently given. Stating the reasoning in deductive form, those who need to borrow money are more likely than those who do not need to borrow money to in fact borrow it; D needed to borrow money; therefore, D is more likely than others about whom we know nothing to have borrowed money. In addition, any evidence which tended to point out D's need for the money (for example, that W did not lend D money) would render W's testimony more probative. However, such evidence may also raise prejudice problems. For example, would it be relevant that D was a junkie, unemployed, and had a $100 a day habit? Of course. Such evidence tends to show a great need for money which increases the likelihood that D in fact borrowed money. Nonetheless, because of the possibility that the jury might find against D merely because he is a junkie, the evidence would probably be excluded under Rule 403. For this reason, evidence that a defendant is a pauper is routinely excluded.

In this problem, if the defense offered a receipt for payment of the note, plaintiff should object on grounds of irrelevance. A release is immaterial under the pleadings since the defense is forgery, not that the note was executed and paid. Under the pleadings, a release relates to the affirmative defense of accord and satisfaction, which was not pleaded.



Problem - Double Indemnity (92)

(Heartenstein v. New York Life Insurance Co. 113 N.E.2d 712 (Ohio Ct. App. 1952))

The point:

All evidence is inferential. Evidence of state of mind of a person is most obviously inferential. When the state of mind of a person is an essential element of a claim or charge, direct or testimonial evidence will rarely, if ever, be sufficient to prove state of mind as a matter of law.

Answer and Analysis:

Even though the evidence of the defendant's actions overwhelmingly suggests that defendant drove his car upon the tracks deliberately and with

the intent that he be struck by the train, the evidence is not so conclusive that it establishes as a matter of law that the defendant intended to commit suicide. On this proof, it would be possible to draw other inferences.

If evidence were offered as to the discrepancy between the funds for which the defendant was responsible and the funds actually in the bank, it should be admitted on the ground that it tends to prove a motive for the defendant's committing suicide. The relevance of the evidence requires inferences to be linked together: one would have to infer that the defendant knew of the shortage of funds, that he knew of the audit, that he knew the audit would show up the shortage, that he knew he would be blamed for the discrepancy, that this made him despondent, and that because of his despondency he decided to take his own life.

The trial court in Heartenstein excluded this evidence on the grounds that it required an inference to be piled on an inference. The appeals court reversed, pointing out that the "no inference on an inference rule" would preclude establishment of state of mind -- an emotion -- except in those cases in which a person himself attested to his mental state.

The appeals court is correct. If the evidence from which the inference is drawn has probative value, then the second inference may be reasonably drawn. And this inference, if reasonable, may be added to any previous fact found by the jury through a similar process until an ultimate conclusion on the issue is reached. In Heartenstein, even if there is no proof that the defendant actually embezzled money from his lodge, it is reasonable to infer that he might have known of the shortage in funds and that the prospect of discovery of a deficiency in funds for which he was responsible, even if he himself did not embezzle the funds, would be enough to make him despondent and suicidal.

Wigmore has sharply criticized the "no inference on an inference rule":

There is no such orthodox rule; nor can be. If there were, hardly a single trial could be adequately prosecuted. For example, on a charge of murder, the defendant's gun is found discharged; from this we infer that he discharged it; and from this we infer that it was his bullet which struck and killed the deceased. Or, the defendant is shown to have been sharpening a knife; from this, we argue that he had a desire to use it upon the deceased; and from this, we argue that the fatal stab was the result of this desire. In these and innumerable daily instances, we build up inference upon inference, and yet no court (until very modern times) ever thought of forbidding it. All departments of reasoning, all scientific work, every day life and every day's trial, proceed upon such data. 1 Wigmore, 41 at 435-36 (3d ed.).

Yet, the "no inference on an inference rule" persists in some jurisdictions even today despite the obvious soundness of the Wigmore criticism.

For more on inferential and circumstantial proof, see New York Life Ins. Co. v. McNeely, 79 P.2d 948 (Ariz. 1938) (rejecting the "no inference on an inference rule" in favor of a "to the exclusion of all other inferences rule'); Smith v. General Motors Toro, 227 F.2d 210 (5th Cir. 1955) (circumstantial proof insufficient to take auto accident case to jury). Two famous cases on the use of circumstantial proof to establish the corpus delecti in a murder case are Regina v. Onufrejczvk. 1 All Eng. L. Rep. 247 (Crim. App. 1955), and Commonwealth v. Webster, 59 Mass. 295 (1850). They make fascinating reading and classroom storytelling. They are also useful to contrast with the probabilistic proof cases (Collins, Smith, and Sneed). This line of cases may be topped off with Phillips, Famous Cases of Circumstantial Proof (1909), which contains descriptions of several cases in which the murder victims reappear after the defendant has been hanged.

Under the view of relevance adopted by the federal rules and advocated here, evidence of the shortage of funds is clearly relevant. But this conclusion does not dispose of the problem that the evidence may prejudice the plaintiff by suggesting that the insured was a thief. This is a familiar Rule 403 problem because it raises the possibility that the jury might decide to deny double indemnity to the plaintiff because the insured was dipping into the lodge funds.

An interesting variation on this problem was proposed by Professor Chadbourn. We call it:

Corroborating Evidence

In an action for wrongful death, plaintiff alleges that defendant negligently ran over the deceased while the deceased was crossing the street at the crosswalk. The defendant's answer claims that the deceased deliberately jumped in front of his car, which he was driving in a reasonable and prudent manner.

At trial, defendant offers to prove that the deceased was an elementary school teacher, that charges had recently been brought against the deceased for sexual molestation of a nine year old child, and that a school board meeting called to consider such charges (at which the deceased had been present) adjourned one hour prior to the accident.

Is the offered evidence relevant? If the judge agrees the evidence is relevant, should it be admitted?

The evidence is relevant under the same reasoning as in Heartenstein. The fact that charges had been brought against the deceased and that he had just come from a hearing where such charges had been considered raises the possibility that the deceased was depressed, from which one could infer a motive to commit suicide. The possibility that deceased was simply inattentive and distracted because of the school board meeting would not render the evidence irrelevant. This goes to weight, not admissibility.

However, the fact that the evidence is relevant under Rule 401 does not necessarily mean that it should be admitted. In this case, the jury could be influenced by the fact that the deceased had been accused of a sordid crime and deny recovery for that reason. This is classic prejudice in that the jury might decide the case on an impermissible ground. However, the evidence is so central to the defendant's claim that the deceased deliberately jumped in front of his car, that it seems unfair not to admit it. In a criminal prosecution for manslaughter, the evidence would clearly have to be allowed to avoid a Sixth Amendment violation. In a civil case, the evidence probably should come in also, with the possible prejudice to the deceased minimized as much as possible through a cleansing instruction.

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