The impossible synthesis: Proving guilt in vast conspiracies under the standard of reasonable doubt

“ Conspiracy was the basis of the prosecution; for in the absence of a conspiracy, in the carrying out of which the alleged murder was committed, the prosecution must have failed; the crime of murder, apart from the conspiracy to deprive a citizen of a right or privilege secured by the Constitution and laws of the United States, being punishable only by the state.
We are of opinion that the admission in evidence of Taylor's statement or deposition taken at the examining trial was in violation of the constitutional right of the defendants to be confronted with the witnesses against them. ”

“ All crime loves darkness. We all know that. One of the troubles about proving that a man has committed a crime is that he tries to keep it as secret as possible. He does not carry a placard on his breast or on his back stating what he is about to do. The consequence is that it is nearly always difficult to prove men guilty as stated in the indictment. But that does not relieve the prosecution. That burden is taken by the Government, and they must prove men guilty of conspiracy precisely as they prove anything else. Is circumstantial evidence sufficient? ”

“ At length Markham spoke.
“Why this sweeping deprecation of circumstantial evidence? I admit that at times it may be misleading; but it often forms powerful presumptive proof of guilt. Indeed, Vance, one of our greatest legal authorities has demonstrated that it is the most powerful actual evidence in existence. Direct evidence, in the very nature of crime, is almost always unavailable. If the courts had to depend on it, the great majority of criminals would still be at large.” ”

“ But, gentlemen, the [277] crime we are trying is a crime of an assassin. It is the work of one who does his foul deeds beyond the sight and hearing of men. All it means is this: That when one sees the crime committed or one hears the crime committed then the testimony of him that sees or hears is the testimony of a witness who saw it or heard it and is direct evidence. All other evidence is circumstantial evidence. ”

“ Circumstantial evidence in criminal cases is the proof of such facts and circumstances connected with or surrounding the commission of the crime charged as tends to show the guilt or innocence of the party charged, and if these facts and circumstances are sufficient to satisfy the jury of the guilt of the defendants beyond a reasonable doubt, then such evidence is sufficient to authorize the jury in finding the defendants guilty. ”

“ Now you observe, gentlemen, that the government submits this case to you upon circumstantial evidence. No witness testifies to [306] seeing the defendant in the act of doing the crime charged, but the government seeks to establish by proof a body of facts and circumstances from which you are asked to infer or conclude that the defendant killed Mr. and Mrs. Borden. This is a legal and not unusual way of proving a criminal case, and it is clearly competent for a jury to find a person guilty of murder upon circumstantial evidence alone. ”

“ Gentlemen, this is a criminal proceeding; you cannot guess men out of their Liberty; you must have evidence that satisfies you, beyond any reasonable doubt, that the defendant, in dealing with matters looking largely to the future, and about which no one can be guided except by surmise or guess, didn't guess at all, but correctly drew deductions from the known facts and circumstances, which could not be known at the time he acted. ”

“ Permitting proof by a preponderance of the evidence would necessarily result in the conviction of more defendants who are in fact innocent. Conversely, imposing the burden of proof beyond a reasonable doubt means that more defendants who are in fact guilty are found innocent. It seems to me that the same considerations that demand the reasonable-doubt standard when guilt or innocence is at stake also demand that standard when the question is the admissibility of an allegedly involuntary confession. ”

“ Justice Harlan put it in his concurring opinion, the requirement of proof beyond a reasonable doubt is 'bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.' Id., at 372, 90 S.Ct., at 1076. ”

“ Circumstantial evidence will prove anything, provided the circumstances are right, and provided further that all the circumstances are right. A chain of circumstances is no stronger than the weakest circumstance, as a chain of iron is no stronger than the weakest link. Where you establish or attempt to establish a fact by circumstances, each circumstance must be proved not only beyond a reasonable doubt, but each circumstance must be wholly inconsistent with the innocence of the defendants. ”

“ Foreman and gentlemen, I have taken a little more time than I intended to in discussing the question of circumstantial evidence. I have said that it was necessary for them to prove beyond a reasonable doubt the allegation of the indictment. Circumstantial evidence has often been likened to a chain. These facts which have to be proven in order to allow you to draw the inference [203] as to her guilt or innocence have been called links in the chain, and every essential fact, Mr. Foreman and gentlemen, every essential fact in that chain must be proved beyond a reasonable doubt—every one of them. ”

“ In cases where circumstantial evidence is every thing--and therein lies the horror and danger of judging by circumstantial evidence--so light a word, so small a turn will give a completely different view to the whole circumstances of any case, will so completely prejudice the question, and bias the minds of hearers, that he was quite aware if any zealous Catholics should be engaged in the task of persecuting him to the last, he could scarcely hope to escape from such serious imputations, as would justify perhaps his permanent detention, if not his death. ”

“ Even the clearest and most perfect circumstantial evidence is likely to be at fault, after all, and therefore ought to be received with great caution. Take the case of any pencil, sharpened by any woman: if you have witnesses, you will find she did it with a knife; but if you take simply the aspect of the pencil, you will say she did it with her teeth.—Pudd’nhead Wilson’s Calendar. ”

“ A more terrible fate than that of one who has been convicted and punished for an offence which he has not committed, on the strength of a chain of plausible circumstantial evidence, can hardly be conceived. ”

“ The circumstantial evidence may be better and more convincing than the testimonial evidence; for it may be impossible, under the conditions that I have defined, to suppose that the man met his death from any cause but the violent blow of an axe wielded by another man. The circumstantial evidence in favour of a murder having been committed, in that case, is as complete and as convincing as evidence can be. It is evidence which is open to no doubt and to no falsification. ”

“ Suppose that a man tells you that he saw a person strike another and kill him; that is testimonial evidence of the fact of murder. But it is possible to have circumstantial evidence of the fact of murder; that is to say, you may find a man dying with a wound upon his head having exactly the form and character of the wound which is made by an axe, and, with due care to take surrounding circumstances into account, you may conclude with the utmost certainty that the man has been murdered—is dying in consequence of the violence inflicted by that implement. ”

“ We are very much in the habit of considering circumstantial evidence as of less value than testimonial evidence, and it may be in many cases, where the circumstances are not perfectly clear and perfectly intelligible, that it is a dangerous and uncertain kind of evidence; but it must not be forgotten that in many cases it is quite as good as testimonial evidence, and that not unfrequently it is a great deal better than testimonial evidence. ”

“ The class of beliefs with which the rules of circumstantial evidence are concerned are those where the truth of the proposition, or hypothesis, is a deduction from many distinct facts, but the coexistence of which facts leads to the inevitable conclusion that the proposition or hypothesis is true. We can not tell why it is that moral conviction is forced upon us by the coexistence of certain facts and their tendency to establish a certain conclusion. ”

“ The piecing together of the loose bits of evidence which we hunt up, a bit here, a bit there, arguing upon it, drawing conclusions from it, rejecting what will not fit, filling up the empty spaces, until we present the whole case without a crack in it for a guilty man to slip through--that is what we call circumstantial evidence, and it is really a science, doctor. ”

“ All we know is, that our minds are so constituted that we can not resist the force of circumstantial evidence if we suffer our faculties to act as reason has taught them. But, then, in any given case, whether we ought to yield our belief in anything where we have only circumstantial evidence to guide us, there are certain rules to be observed. The first of these rules is, that every fact in a collection of proofs from which we are to draw a certain inference must be proved independently by direct evidence, and must not be itself a deduction from some other fact. ”

“ Every fact when you are proving a circumstantial case has to point to the guilt of the defendants, and their guilt has to be found from all the facts in the case beyond a reasonable doubt. If there is one fact inconsistent with their guilt, the case is gone. ”

“ In reasoning upon such subjects, when the facts which constitute the chain of circumstantial evidence are very numerous, we are apt to regard their greater comparative number as if it dispensed with a rigid application of the rules of determination. Every one can see, in the illustration above employed, borrowed from criminal jurisprudence, that the facts which constitute the chain of circumstantial evidence ought to be rigidly tested by the rules of determination before the guilt of the accused can be safely drawn as a deduction from the facts. ”

“ A reasonable doubt is a doubt for which you can give a reason. If you can conceive of any other hypothesis that will exclude the guilt of this prisoner and make it possible or probable that somebody else might have done this deed, then you have got a reasonable doubt in your mind. Now, Mr. Foreman and gentlemen, I want to say a word about [202] the kind of evidence. There are two kinds of evidence, direct evidence and circumstantial evidence. Direct evidence is the testimony of persons who have seen, heard or felt the thing or things about which they are testifying. ”

“ Unless this presumption of innocence shall have been overcome by proof of guilt so strong, credible, and conclusive as to convince your minds, beyond every reasonable doubt, that the defendants are guilty, and unless the evidence is of such a nature as to exclude every reasonable doubt of guilt, then you ought to acquit the defendants. ”

“ The failure of a defendant to deny or explain evidence against him does not, however, create a presumption of guilt or by itself warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt.' (Italics added.) ”

“ Thus, in case of conspiracy, and some others, where many persons are charged with joint crime, and where the evidence against most of them must, of necessity, be circumstantial, the plea of "reasonable doubt" becomes peculiarly valuable to the separate accused, and the mode in which it is held it can best be applied is the test whether the facts as proved, circumstantial, as supposed, can be made to consist just as reasonably with a theory that is essentially different from the theory of guilt. ”

“ However numerous may be the facts in the government’s process of proof tending to show defendant’s guilt, yet if there is a fact established—whether in that line of proof or outside of it—which cannot reasonably be reconciled with her guilt, then guilt cannot be said to be established. In order to warrant a conviction on circumstantial evidence it is not necessary for the government to show that by no possibility was it in the power of any other person than the defendant to commit the crimes ”

“ If one single fact is proved by a preponderance of the evidence which is inconsistent with the guilt of a defendant, this is sufficient to raise a reasonable doubt as to his guilt and entitles him to an acquittal. ”

“ In reviewing the whole facts, and more especially the series of remarkable coincidences of dates, &c., to which I beg to direct your most particular attention, two alternatives present themselves. In the first we must altogether ignore a chain of circumstantial evidence so complete and close-fitting in every respect, as it seems almost impossible to disregard; in the second, we are inevitably led to a conclusion so at variance with all the most firmly established laws of nature, as it seems almost equally impossible to accept. ”

“ Any circumstance which is essential to a conclusion of guilt against the defendants, or either of them, should be established beyond all reasonable doubt and to a moral certainty before it can be used by the jury against the defendants. ”

“ All the legislative talk only reiterates what the statute itself says-that the maximum penalty is twenty years.
The distinctiveness between a substantive offense and a conspiracy to commit is a postulate of our law. 'If has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses.' Pinkerton v. ”

“ A conspiracy may be established by circumstantial evidence, the same as any other fact, and such evidence is legal and competent for that purpose; so whether an act which was committed was done by a member of a conspiracy, may be established by circumstantial evidence, whether the identity of the individual who committed the act be established or not; and also whether the act done was in pursuance and furtherance of a common design, may be ascertained from the same class of evidence ”

“ Where several agree or conspire to commit a trespass, or for any other unlawful purpose, they will, no doubt, all be liable for the act of any one of them done in execution of the unlawful purpose; and when the agreement or conspiracy is first proved by other evidence, the confession of one of them will be admissible evidence against the others. But it is well settled that the confessions of one person cannot be admitted against the others to prove that they had conspired with him for an unlawful purpose. ”

“ Before defendants can be held liable therefor, the evidence must satisfy you beyond all reasonable doubt that the person throwing said bomb was acting as the result of the teaching or encouragement of defendants or some of them.
“Before a person charged as accessory to a crime can be convicted, the evidence must prove beyond a reasonable doubt that the crime was committed by some person acting under the advice, aid, encouragement, abetting or procurement of the defendant whose conviction as accessory is sought. ”

“ If, after an examination of all the evidence, which examination should be made by you in a spirit free from passion and prejudice, there should exist in your mind any reasonable doubt as to whether or not any defendant was a member of an unlawful conspiracy as charged in the indictment, then and in such case it would be illegal and wrong for you to use against such defendant any evidence respecting the conduct or conversation of any other defendant, even if you should believe that such other defendant was a member of such alleged conspiracy. ”