It seems it might be worth leading the poor old circumstantial evidence carthorse once more to the trough
It is a legal error to speculate away the circumstantial points 1 by 1
But it can also be very difficult to keep the process of legal inference compartmentalised from questions of evidence, and to avoid dipping between the two in a speculative way.
Finally one needs to be very aware of how the evidential burden and standard of proof needs to be applied point by point.
Phew!
So let's try to put that all together in an example, so we can see how easy it is to get led up a garden path instead of drinking the water (ouch mixed metaphors)
IMO the state has already proved the following things
* Chase created a new vendor all lower case and created, printed and deleted cheques. He forged Joey's signature. He backdated cheques. He cashed multiple forged cheques
* Chase called Quickbooks pretending to be Joey, and asked QB to delete all the QB data.
The State will then ask the jury to draw a natural and obvious inference. Chase was stealing from Joey and sought to conceal this fact.
At this point the defence would like to lead the jury up the garden path by speculating alternate answers
Joey knew all about the cheques. Joey authorised Chase to call QBs because he was changing his accounting....
Double Red Alert!
This speculation lacks any foundation in evidence. The defence must be able to point to some evidence that Joey authorised that. That Joey was changing his accounting. Ideally a direct witness to those matters - who just so happens to be available to the defence!
Now here a razor sharp judge would be super sceptical about some obvious "defendant testifying via his sock puppet counsel"
Why doesn't the state produce the recording where Chase said it was all legit? Why doesn't the state call some other customer service rep whom Chase told it was all legit?
Holy speculative hearsay batman!
The defence, without calling the direct witness they have at their disposal, would like the jury to draw speculative inferences, based on a version Chase is telling via his counsel. Importantly the defence is not meeting the evidential burden to establish any of this as a live question at trial.
It's seductive, but this is where we can get into big trouble by leaping from inference to speculation & henpecking the evidence to death.
(carthorse, batman and now a hen
)
So let's be careful. Inferences must be based on evidence. Speculation is never allowed. Especially the Jury is allowed to draw natural and obvious inferences and each one does NOT need to be to BARD standard.
I will take it all back if CM takes the stand and testifies to all of this.
