Instruction 2.240, Criminal Model Jury Instructions for Use in the District Court

DIRECT AND CIRCUMSTANTIAL EVIDENCE

There are two types of evidence which you may use to determine the

facts of a case: direct evidence and circumstantial evidence. You have

direct evidence where a witness testifies directly about the fact that is to be

proved, based on what he claims to have seen or heard or felt with his own

senses, and the only question is whether you believe the witness. You

have circumstantial evidence where the witness cannot testify directly

about the fact that is to be proved, but you are presented with evidence of

other facts and you are then asked to draw reasonable inferences from

them about the fact which is to be proved.

Optional example: Let me give you an example. Your daughter might

tell you one morning that she sees the mailman at your mailbox.

That is direct evidence that the mailman has been to your house.

On the other hand, she might tell you only that she sees mail in

the mailbox. That is circumstantial evidence that the mailman

has been there; no one has seen him, but you can reasonably

infer that he has been there since there is mail in the box.

The law allows either type of proof in a criminal trial. There are two

things to keep in mind about circumstantial evidence:

The first one is that you may draw inferences and conclusions only

from facts that have been proved to you.

The second rule is that any inferences or conclusions which you draw

must be reasonable and natural, based on your common sense and

experience of life. In a chain of circumstantial evidence, it is not required

that every one of your inferences and conclusions be inevitable, but it is

required that each of them be reasonable, that they all be consistent with

one another, and that together they establish the defendant’s guilt beyond

a reasonable doubt.

If the Commonwealth’s case is based solely on circumstantial

evidence, you may find the defendant guilty only if those circumstances are

conclusive enough to leave you with a moral certainty, a clear and settled

belief, that the defendant is guilty and that there is no other reasonable

explanation of the facts as proven. The evidence must not only be

consistent with the defendant’s guilt, it must be inconsistent with his (her)

innocence.

Whether the evidence is direct or circumstantial, the Commonwealth

must prove the defendant’s guilt beyond a reasonable doubt from all the

evidence in the case.

There is no difference in probative value between direct and circumstantial evidence. Commonwealth

v. Corriveau, 396 Mass. 319, 339, 486 N.E.2d 29, 43 (1986). Circumstantial evidence is competent

to establish guilt beyond a reasonable doubt. Commonwealth v. Nadworny, 396 Mass. 342, 354, 486

N.E.2d 675, 682 (1985); Commonwealth v. Anderson, 396 Mass. 306, 311, 486 N.E.2d 19, 22 (1985);

Commonwealth v. McGahee, 393 Mass. 743, 750, 473 N.E.2d 1077, 1082 (1985). Physical evidence

may be valid circumstantial evidence if it is authenticated. Commonwealth v. Drayton, 386 Mass. 39,

48, 434 N.E.2d 997, 1005 (1982).

The language of the model instruction defining direct and circumstantial evidence and requiring

inferences to be consistent with each other is a paraphrase of the charges in Commonwealth v.

Tucker, 189 Mass. 457, 461 (1905), and Commonwealth v. Webster, 5 Cush. 295, 310-320 (1878).

The language that “any inferences or conclusions which you draw must be reasonable and natural,

based on your common sense and experience of life” was affirmed in Commonwealth v. Cordle, 412

Mass. 172, 178, 587 N.E.2d 1372, 1376 (1992). The language that individual inferences in a

circumstantial web need not be necessary ones is based on Commonwealth v. Best, 381 Mass. 472,

473, 411 N.E.2d 442, 449 (1980), and Commonwealth v. Walter, 10 Mass. App. Ct. 255, 257, 406

N.E.2d 1304, 1306 (1980), and Commonwealth v. Mezzanotti, 25 Mass. App. Ct. 522, 525-526, 529

N.E.2d 1351, 1354 (1988). The first sentence of the penultimate paragraph of the model instruction

is a paraphrase of Commonwealth v. Russ, 232 Mass. 58, 68, 122 N.E. 176, 180 (1919). See also

Commonwealth v. Helfant, 398 Mass. 214, 226 n.9, 496 N.E.2d 433, 442 n.9 (1986), and

Commonwealth v. Hicks, 377 Mass. 1, 8-9, 384 N.E.2d 1206, 1211-1212 (1979). For another

example illustrating circumstantial evidence, see Commonwealth v. Shea, 398 Mass. 264, 270 n.3,

496 N.E.2d 631, 635 n.3 (1986). See generally Commonwealth v. Medeiros, 354 Mass. 193, 197,

235 N.E.2d 642, 644 (1968), cert. denied sub nom. Bernier v. Mass., 393 U.S. 1058 (1969);

Commonwealth v. Croft, 345 Mass. 143, 144-145, 186 N.E.2d 468, 468-469 (1962); Commonwealth

v. Shea, 324 Mass. 710, 713, 88 N.E.2d 645, 647 (1949).

See also Instruction 3.100 (Inferences).

SUPPLEMENTAL INSTRUCTION

Advantages and disadvantages of each. Each type of evidence has

certain advantages and disadvantages:

The advantage of direct evidence is that, if it is accurate, it

deals directly and specifically with the fact to be proved. Its

disadvantage is that its value depends entirely on whether that

witness is truthful and accurate or whether that item of physical

evidence is authentic.

Circumstantial evidence — whether it is in the form of

testimony or physical evidence — may have an advantage

because it comes from several different sources, which can be

used as a check on each other. Its disadvantage is that it is

indirect: you must piece it all together and then determine

whether or not it leads to a reasonable conclusion about the fact

which is to be proved.

Webster, 5 Cush. at 311-312.