LEGAL EVIDENCE OR OPINION

There is a big difference between evidence and opinion. This is relevant in law and life. When I read a newspaper, it isn’t so often easy to parse the difference, especially in our current state of communication.

What are facts in a court of law

The first thing to know is that there are two kinds of legal evidence:

• Direct Evidence
• Circumstantial Evidence

Here is the thing. Both are facts, but one does more than simply be a fact.

What is direct evidence

Direct evidence is an observable fact not influenced by the observer. If you watch TV dramas, direct evidence is often an exhibit like fingerprints on a weapon, or blood on a carpet, maybe a video recording of two people meeting. It is direct in that it does not require an observer to analyze it in order for it to be a direct fact.

When a politician or a lawyer explains that they are going to defend or attack something, the press will often ask for evidence. Direct evidence is most often what they mean, but not always.

The above “closer look” contained circumstantial evidence but heavily layered with opinion. Facts do not always point to another fact. Sometimes lawyers will contest a circumstantial fact by asking, “Where is this going?” meaning they do not believe the circumstantial nature of the fact will actually point to or support a relevant fact, but rather create uncorrelated bias. For example, you cannot present a defendants criminal past, regardless of them being a fact, into a completely unrelated case. This is a form of “guilt by association” that the law frowns on.

What is Circumstantial evidence

Claiming something is “circumstantial” evidence is typically a preamble to blowing off whatever is being said. But here is the thing: You are personally a master of circumstantial evidence. Let me unpack that.

If you have ever watch a court case, the majority of it is about presenting circumstantial evidence. Circumstantial often means that a witness or an expert is providing either a testimony or professional analysis in order to assist a lawyer in demonstrating that the evidence witnessed within a circumstance helps to support another fact looking to be established. In the case of law, only a judge or a jury can legally decide if a circumstantial piece of evidence supports the declaration of another evidential fact.

Think about it. If you have ever watched a season of the TV show “Law and Order” then you have personally witnessed likely hours and hours of circumstantial testimonies. And here is how a circumstantial piece of evidence can demonstrate the inference of another fact.

How Circumstantial Evidence infers other facts

Imagine you were required by law to give a testimony. There was a murder that you never saw, but you witnessed the two defendants talking in an ally one block away from a crime scene at 2:00am. In your testimony you say.

“I was coming out of the dinner where I work at the end of my shift. And I volunteered to toss some garbage on the way to the bus stop. So I stepped out the ally door and as I tossed the trash bag into the bin, I saw those two talking quietly under a street lamp in the ally. They were holding something.”

That testimony would be considered circumstantially relevant to the case in supporting a contradiction to their defense that they were no where near the murder that night. The evidence would be considered a factual observation in the sense of a testimony given under threat of perjury.

Now let’s imagine that you went on to testify the following…

“I couldn’t really hear them but they looked like they were talking about murder!”

A statement like that has nothing to do with being circumstantial. Likely a good defense attorney would object claiming the statement was hearsay. The hearsay doesn’t make the valuable circumstantial evidence invalid. It simply makes it of no consequence as a non-expert witness.

Expert Analysis is Circumstantial Evidence

Both the defense and the prosecution are allowed to bring expert witnesses. These individuals might examine a piece of direct evidence or provide analysis of a person or situation. The professional opinion of experts are often quite critical to prosecuting or defending a case. But they always fit into the realm of circumstantial evidence.

The Hypocrisy of “considered evidence” in the public realm

If a person is being accused of something and the preponderance of evidence is circumstantial, then they will naturally downplay the value of that evidence. This is incredibly common. They might claim there is no evidence simply because they are not willing to consider the facts in the circumstances in question. So they say, “they have no facts.”

On the other hand, like the video above, when there is nothing but circumstantial evidence, or the supposed evidence contains no facts and only opinions, then the emphasis would be on the circumstantial evidence.

Again:

• Seeing something is a fact.
• Speculating about it is not.
• Circumstantial facts can infer other facts.
• Opinions and speculation cannot infer other facts.

Does the Trump campaign have direct and/or circumstantial evidence?

It is incredibly common for a set of lawyers, either on the defense or the prosecution, to do press conferences to setup the basic essential premise of their case:

“We are going to show that through these sworn statements, there is a perponderance of factual evidence proving the crime.”

“I will prove that the defendant here is not guilty and that their circumstantial evidence does not point to a crime but rather is baseless speculation.”

This kind of banter is incredible common leading up to the real court case.

The bottom line in this case is:

• They have many hundreds of affidavits. Affidavits are sworn testimony under the threat of legal perjury, which in most states includes a punishment of imprisonment of up to 15 years.

• Witness testimonies contain circumstantial facts that typically point to other facts.

• There seem to be expert fact witnesses as well that will give professional testimonies.

• We also know there is direct evidence in terms of voter count discrepancies, elect rules violations, as well as other procedural direct evidence showing a violation of the law.

So they appear to have both.

Why do the press keep saying they do not have evidence?

I am honestly not sure. My best guess is that they either do not understand the term “evidence”, they don’t understand how courts establish “facts,” or they are parsing words ignorantly or deceptively in the way they conflate direct evidence with circumstantial evidence.

I tend to imagine they are both ignorant as well as biased. There could be a collusion conspiratorially to persuade the public to believe Trump is simply stealing the election, but this whole statement is an opinion and not direct or circumstantial evidence.