South Carolina has controversially changed its circumstantial evidence rule as follows.
"Traditionally, when charging the jury in a circumstantial evidence case, the following was the recommended instruction:
[E]very circumstance relied upon by the State [must] be proven beyond a reasonable doubt; and . . . all of the circumstances so proven be consistent with each other and taken together, point conclusively to the guilt of the accused to the exclusion of every other reasonable hypothesis. It is not sufficient that they create a probability, though a strong one and if, assuming them to be true they may be accounted for upon any reasonable hypothesis which does not include the guilt of the accused, the proof has failed. [Emphasis in original]
State v. Edwards, 298 S.C. at 275, 379 S.E.2d at 889, citing State v. Littlejohn, 228 S.C. 324, 89 S.E.2d 924, 926 (1955) (emphasis supplied).
However, in 1997, in light of the United States Supreme Court’s opinion in Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), a majority of this Court held in State v. Grippon, 327 S.C. 79, 489 S.E.2d 462 (1997), that so long as the jury is properly instructed on reasonable doubt, it is unnecessary for the trial court to instruct the jury that “circumstantial evidence must be so strong as to exclude every reasonable hypothesis other than guilt.” Id. at 83, 489 S.E.2d at 464." [Emphasis added]
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RS COMMENT:
Since I'm used to arguing the California rule on circumstantial evidence, which is a rule of logic enacted into law, it appears clear to me that South Carolina is slipping into bad law and bad logic.
Why?
South Carolina is now allowing criminal convictions to stand in circumstantial cases where there is admitted reasonable doubt.
South Carolina is inviting error at the expense of accuracy, in order to get the conviction regardless of the price.
This reminds me of a supervising prosecutor of mine who expressed a general office attitude, advising advised trial deputies to "get the conviction and let the appeal take care of itself." Let someone else worry about it.
This refers to an old expression, rarely heard nowadays, that goes: "Let George do it."
There never was any 'George,' however.
The South Carolina Supreme Court is George, in this instance.
Or, as I heard Dean Kamen, inventor of the Segway personal transporter, say in addressing the Cal Berkeley graduates when my son Ted graduated with his M.E., in 2003, about Wernher von Braun, the V-1 and V-2 rocket engineer we acquired with the fall of Nazi Germany, the rocket scientist's views on his contribution to Hitler's war effort (attacking London's civilians) was:
"My job was to build rockets and send them up.
Where they came down was someone else's decision."
The fig leaf that allegedly saves South Carolina is that since the judge also gives an instruction advising jurors that they may not convict unless and until they've found guilt beyond a reasonable doubt, this instruction cures the defect of the logic instruction, aka South Carolina's watered down version of the circumstantial evidence rule.
This is running the Criminal justice system based on Carnival law:
"What we lose on the Swings we make up on the Merry-go-Round."
(That expression is borrowed from George V. Higgins, in The Friends of Eddie Coyle - or one of his subsequent mysteries - on crime in Boston.)
But the U.S. Supreme Court, in the Holland case, below, holds this business of giving with one hand while taking away with the other to be good law. Get the conviction and let the appeal take care of itself. It's only drug dealers we're dealing with.
The problem being overlooked is that every time you cut back on the drug dealer's right to a fair trial, you cut back on your own. And there's no guarantee that you won't find yourself accused some day of some thing that you did not do.
But, you say, you are a law abiding person, a law student, lawyer, prosecutor, or judge. This is very unlikely to happen to me. I'll take my chances. During the 1980s I represented a number of people who were accused, quite falsely, by their own children, both minors and adults, of sexually molesting them. I noted with considerable interest the many thousands of other similar cases sweeping the country. All false. McMartin. Little Rascals. Jordan, Minnesota. Kern, County. The State of Washington.
Did you plan to marry and have children?
Check the posting on this site of the Devereaux case from Washington State in which one accuser was responsible for over 20,000 such false accusations, prosecuted by authorities. You can Google this site, above left, and from there, the entire Web, if you wish.
Supervising prosecutors and appellate courts don't always keep in the forefront of their minds that they too are subject to the rules they create and follow, however.
When one of them, or their son or daughter, niece or nephew, has the misfortune to be accused, the picture suddenly comes into sharper focus.
Few things are more interesting than to see an accused police officer complaining that his constitutional rights were violated by other officers.
Police officers are entitled to due process of law, their Constitutional rights, they are quick to point out, and I certainly agree with that. See the Police Officer's Bill of Rights, regarding the detention and interrogation of officers.
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CALIFORNIA
California's circumstantial evidence rule reads as follows: [Note: copied, i.e. quoting, from Peo. v. Towle (1982) 31 C3 105. See CALJIC 2.01, current edition, which memory says remains the same, but I don't have the volume at hand to confirm.
"The current version of CALJIC [California Jury Instructions, Criminal] No. 2.01 reads in relevant part:
"... [A] finding of guilt as to any crime may not be based on circumstantial evidence
unless the proved circumstances are not only
(1) consistent with the theory that the defendant is guilty of the crime, but
(2) cannot be reconciled with any other rational conclusion. ...
[I]f the circumstantial evidence is su[s]ceptible of two reasonable interpretations, one of which points to the defendant's guilt and the other to his innocence, it is your duty to adopt that interpretation which points to the defendant's innocence, and reject that interpretation which points to his guilt.
If, on the other hand, one interpretation of such evidence appears to you to be reasonable and the other interpretation to be unreasonable, it would be your duty to accept the reasonable interpretation and to reject the unreasonable."
***
Here's the current version of CALJIC 2.01, from Lexis:
2.01 SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE -- GENERALLY
However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion.
Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt.
Also, if the circumstantial evidence [as to any particular count] permits two reasonable interpretations, one of which points to the defendant's guilt and the other to [his] [her] innocence, you must adopt that interpretation that points to the defendant's innocence, and reject that interpretation that points to [his] [her] guilt.
If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.
There's a subsequent version called "Sufficiency of Circumstantial Evidence to Prove Intent," to similar effect, 2.02, I believe.
RS COMMENT:As you see, the California rule instructs the jury to throw out the case if it finds any reasonable interpretation consistent with innocence.
If there are two interpretations, one reasonable and the other unreasonable, the jury is told to reject the unreasonable, adopt the reasonable, and act accordingly in voting.
But, what if there are two conflicting interpretations, one strongly reasonable, pointing towards guilt and the other only minimally reasonable pointing towards innocence. What should the jury do?
In South Carolina, the jury is allowed to convict and under the new rule and the conviction will be upheld by the Supreme Court. Both Supreme Courts, in fact, South Carolina's and the United States.
In California, by contrast, the defendant is entitled to an acquittal if there is a reasonable interpretation pointing to innocence, no matter how far-fetched or unlikely. All it has to be is 'reasonable' to a jury. If too far-fetched or unlikely, then the jury is free to reject the theory or interpretation as unreasonable.
We all know that unlikely things have happened. Who would've thought the Trade Center would fall? Or even that it could be attacked.
Norman Mailer has a wonderful line, from The Honorable Schoolboy, his spy novel about the CIA:
"When the stakes are high, coincidences collect."
Scientific investigators are advised, I believe by Richard Feynman, not to underestimate the possibiity, if not likelihood, of coincidence.
When large systems such as science, medicine, law and govenment act on millions of examples of human behavior, taken overall, what may seem unlikely in a single instance doesn't seem quite so unlikely when viewed over a wide spectrum of possible instances.
This is what Mailer and Feynmen are saying, and what the U.S. and South Carolina Supreme Courts appear not to be recognizing.
I guess when you run such a big country as ours, you have to expect to break a few eggs, don't you.
As a principle, that may be okay for omelettes. It's not my idea of the right way to treat human beings. It's not how I would like to be treated. Do unto others.
That's the difference between the two states. South Carolina would uphold Newton's Law of Gravity even if an apple fell up.
In studying Constitutional Law, one is sometimes struck, in reading the cases, that after a state supreme court has issued what seems a perfectly reasonable argument in support of its decision, the U.S. Supreme Court reverses.
Why?
The U.S. Supreme Court, in setting legal policy for the nation, is accustomed to seeing the world from a different, some would say higher, perspective.
What might be okay locally is not okay nationally.
What the South Carolina Supreme Court did was not a good rule for an individual case nor as the rule for many cases.
<>
See whether you disagree.
The posting of December 6, 2004, the day before this, discusses what we mean by the terms 'reason' and 'rational.'
It contains a reference to the circumstantial evidence rule. That, plus the report of this South Carolina case, prompts the current discussion.
Here's the opinion of the South Carolina Supreme Court, pasted below as to the circumstantial evidence rule discussion. See the opinion for the facts of the case which prompts the controversial
ruling.
Here's a South Carolina newspaper account of the case, and controversy:
Local man's case carries statewide legal significance
By Andrew Dys The Herald
(Published December 5‚ 2004)
A S.C. Supreme Court decision concerning a York County drug case will affect how juries can consider circumstantial evidence in all criminal trials in the state.Prosecutors are lauding last week's decision while defense lawyers are screaming.
Judges no longer will be allowed to tell juries that "Circumstantial evidence must be so strong as to exclude every reasonable hypothesis other than guilt." A newer version of what judges can tell juries before deciding if someone is guilty or not omits the reasonable theory language. The Supreme Court ruled 3-2 that the newer version is "The sole remaining charge to be utilized by the courts of this state."
The high court confirmed the jury conviction of Yukoto Cherry of Rock Hill on a conviction of possession of crack cocaine with intent to distribute from a 1998 incident. Cherry was sentenced to five years but has been free on bond since then as the case moved through two hearings in the Appeals Court and finally the Supreme Court, said one of his lawyers, Thomas F. McDow.
Cherry was accused of having less than one gram of crack cocaine in eight rocks, according to court records, but police had no other physical evidence. Prosecutors argued that because Cherry had money in $20 bills that is typical of crack sales, lacked smoking paraphernalia and the arrest was in a high crime area, Cherry intended to sell the drugs, court records show.
Defense lawyers have argued through trials and now appeals that prosecutors had no evidence Cherry was going to sell drugs.
"It's not that circumstantial evidence can't convict, but it has to be wholly inconsistent with an innocent explanation," said Rauch Wise, a Greenwood defense lawyer who is part of the South Carolina Association of Criminal Defense Lawyers. "This was a total circumstantial evidence case. Where do people go to buy drugs? A high crime area."
Ripple effect
But Kevin Brackett, 16th Circuit deputy solicitor, said the decision shows the conviction was proper, yet the ripple effect has repercussions on future cases. York County's prosecutors already have been told to study the decision, Brackett said.
"This changes the way judges can explain circumstantial evidence in every criminal case," Brackett said.
Defense lawyers are concerned the burden of proof on prosecutors has been lowered by the ruling. Circumstantial evidence cases are the only cases where everyone involved -- police, defendants and witnesses -- can tell the truth and still an innocent person can be convicted, Wise said.
Two of the five supreme court justices, including Chief Justice Jean Toal, dissented with this week's ruling.
Toal wrote, "By omitting the 'reasonable hypothesis' language, this Court leaves open the possibility that even when a reasonable theory exists supporting a defendants innocence, a (possibly erroneous) conviction will stand."
Toal's opinion came close to saying the ruling could lead to innocent men being convicted, Wise said, and he wishes the state's top judge went that far. Defense lawyers around the state are already discussing how to talk to juries since the ruling was made.
"Anytime a law makes it easier to convict the guilty, it also makes it easier to convict the innocent," Wise said.
The case has been a lightning rod in the courts for years. A three-judge appeals court panel heard the case first, with two judges dissenting over the conviction for different reasons. Then a nine-judge appeals court hearing ended with six justices having mixed reasons for reversing the conviction. However, because the six opinions were not the same, the conviction stood.
The case is so complex that it was argued before the Supreme Court on Dec. 2, 2003, but the high court didn't issue its opinion until this week, McDow said.
Including the five Supreme Court justices, 17 appellate judges have now heard the case, and 10 said Cherry is entitled to a new trial or outright dismissal, McDow said.
"That alone should be enough to indicate there is something wrong with this conviction," McDow said.
McDow plans to file papers asking the Supreme Court to rehear the case. McDow also said he doesn't understand why the Supreme Court didn't address the issue of what constitutes an Appeals Court majority, citing the example of six justices dissenting earlier.
Andrew Dys •329-4065
***
The following is a copy of a portion of the full opinion of the S. Carolina Supreme Court, which is linked above:
CIRCUMSTANTIAL EVIDENCE CHARGE
Cherry asserts the trial court erred in refusing to instruct the jury the law of circumstantial evidence, as set forth by this Court in State v. Littlejohn, supra, and State v. Edwards, supra. We disagree.
Traditionally, when charging the jury in a circumstantial evidence case, the following was the recommended instruction:
[E]very circumstance relied upon by the State [must] be proven beyond a reasonable doubt; and . . . all of the circumstances so proven be consistent with each other and taken together, point conclusively to the guilt of the accused to the exclusion of every other reasonable hypothesis. It is not sufficient that they create a probability, though a strong one and if, assuming them to be true they may be accounted for upon any reasonable hypothesis which does not include the guilt of the accused, the proof has failed.
State v. Edwards, 298 S.C. at 275, 379 S.E.2d at 889, citing State v. Littlejohn, 228 S.C. 324, 89 S.E.2d 924, 926 (1955) (emphasis supplied).
However, in 1997, in light of the United States Supreme Court’s opinion in Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), a majority of this Court held in State v. Grippon, 327 S.C. 79, 489 S.E.2d 462 (1997), that so long as the jury is properly instructed on reasonable doubt, it is unnecessary for the trial court to instruct the jury that “circumstantial evidence must be so strong as to exclude every reasonable hypothesis other than guilt.” Id. at 83, 489 S.E.2d at 464.
In Grippon, the defendant was indicted for murder, but convicted of voluntary manslaughter. Grippon asserted he had stabbed the victim after the victim attempted to rape him. The trial judge charged the jury the law of circumstantial evidence, but omitted the phrase “to the exclusion of every other reasonable hypothesis,” believing the phrase shifted the burden of proof from the state to the defendant.[9] Although this Court held that the “reasonable hypothesis” language did not shift the burden of proof, we held the instruction actually given by the trial court, adequately conveyed the level of proof required to find Grippon guilty. Id. The Grippon majority went on to recommend the following charge in cases relying on circumstantial evidence:
There are two types of evidence which are generally presented during a trial--direct evidence and circumstantial evidence. Direct evidence is the testimony of a person who asserts or claims to have actual knowledge of a fact, such as an eyewitness. Circumstantial evidence is proof of a chain of facts and circumstances indicating the existence of a fact. The law makes absolutely no distinction between the weight or value to be given to either direct or circumstantial evidence. Nor is a greater degree of certainty required of circumstantial evidence than of direct evidence. You should weigh all the evidence in the case. After weighing all the evidence, if you are not convinced of the guilt of the defendant beyond a reasonable doubt, you must find [the defendant] not guilty.
327 S.C. at 83-84, 489 S.E.2d at 464.[10]
Since Grippon was decided, several opinions of this Court have appeared to retain the traditional Edwards circumstantial evidence charge as an alternative to the charge recommended in Grippon. See State v. Graddick, 345 S.C. 383, 548 S.E.2d 210 (2001) (upholding charge which was a hybrid of the traditional charge and that recommended by Grippon); State v. Needs, 333 S.C. 134, 156, 508 S.E.2d 857, 868, n. 13 (1999) (noting there are two appropriate ways to charge circumstantial evidence). See also Moriarty v. Garden Sanctuary Church of God, 341 S.C. 320, 338, 534 S.E.2d 672, 681, n.6 (2000) (noting that the traditional circumstantial evidence charge requires greater scrutiny than direct evidence in a criminal proceeding).
It is patent from our decision in Grippon that the Edwards charge is no longer a required instruction. However, we must decide whether the Edwards charge may be given as an alternative to a Grippon charge, or whether the language recommended in Grippon is the sole remaining instruction in a circumstantial evidence case. We hold that Grippon is the sole remaining charge to be utilized by the courts of this state in instructing juries in cases relying, in whole or in part, on circumstantial evidence.
The first American case adopting the “to the exclusion of every reasonable hypothesis” standard was Commonwealth v. Webster, 59 Mass. (5 Cush.) 295 (1850). However, from its outset, critics challenged the “reasonable hypothesis” circumstantial evidence charge on the ground that circumstantial evidence should be treated no differently than direct evidence. See Irene Rosenberg and Yale Rosenberg, “Perhaps What Ye Say Is Based Only on Conjecture”—Circumstantial Evidence Then and Now, 31 Hous. L. Rev. 1371, 1392, nn. 79-80 (1995) (hereinafter Rosenberg article) at p. 1392, nn. 79-80.
Ultimately, the United States Supreme Court, in Holland v. United States, supra, held there was no difference between direct and circumstantial evidence, and that consequently in federal court there was no requirement the trial judge charge the jury that the evidence must be such as to exclude every reasonable hypothesis but that of guilt. Justice Clark reasoned that if the jury was properly instructed on the standards for reasonable doubt, a circumstantial evidence instruction was "confusing and incorrect." 348 U.S. at 139-140.
All of the federal courts, and the vast majority of state courts have adopted the United States Supreme Court’s approach in Holland. See Rosenberg at nn. 121-122.[11] A number of the state court decisions offer persuasive reasoning for abandoning the “reasonable hypothesis” circumstantial evidence charge.
In State v. Adcock, 310 S.E.2d 587, 602-608 (N.C. 1983), the defendant objected to the trial court’s failure to instruct the jury that in order to justify a verdict of guilty, the circumstantial evidence must "exclude every reasonable hypothesis of innocence.” The North Carolina Supreme Court agreed that the evidence must indeed exclude every reasonable hypothesis of innocence but held that:
after all, the convincing effect of circumstantial evidence on the mind of the jury is measured by the same standard of intensity required of any other evidence--the jury must be convinced beyond a reasonable doubt as to every element of the crime before they find the defendant guilty of it, whether the evidence is wholly circumstantial, only partly so, or entirely what we sometimes refer to as direct. No set formula is required to convey to the jury this fixed principle relating to the degree of proof required for conviction. The instruction adopts the formula most often used and to which we sooner or later all refer--proof beyond a reasonable doubt.
Citing Judge Learned Hand, the Adcock Court went on:
The judge failed to charge the jury as to circumstantial evidence, contenting himself with an entirely neutral statement of the opposed contentions of the parties, though he had been asked to say that such evidence was enough only when it foreclosed the hypothesis of innocence. He had with ample elaboration told them that they must be satisfied beyond fair doubt of the defendant's guilt, and that in our judgment was enough, though some courts have held otherwise. The requirement seems to us a refinement which only serves to confuse laymen into supposing that they should use circumstantial evidence otherwise than testimonial. All conclusions have implicit major premises drawn from common knowledge; the truth of testimony depends as much upon these as do inferences from events. A jury tests a witness's credibility by using their experience in the past as to similar utterances of persons in a like position. That is precisely the same mental process as when they infer from an object what has been its past history, or from an event what must have preceded it. All that can be asked is that the importance of the result to the accused shall demand a corresponding certainty of his guilt; and this is commonly and adequately covered by telling them that the conclusion shall be free from fair doubt. To elaborate this into an inexorable ritual, or to articulate it for different situations, is more likely to impede, than to promote, their inquiry.
301 N.C at 34-35, 310 S.E.2d at 606-607, citing United States v. Becker, 62 F.2d 1007, 1010 (2nd Cir. 1933) (emphasis supplied).
The Vermont Supreme Court has also noted that the “exclusion of every reasonable hypothesis of innocence" standard is simply a method for evaluating whether the reasonable doubt standard has been met. State v. Derouchie, 440 A.2d 146, 149 (Vt. 1981).[12] Derouchie noted other criticisms of the “reasonable hypothesis” standard: “first, as a device for judicial evaluation of the sufficiency of the evidence, the ‘exclusion of every reasonable hypothesis of innocence’ test is premised upon a now suspect distrust of circumstantial evidence. . . . Second, . . . [r]ather than assisting jurors in applying the reasonable doubt standard, the traditional circumstantial evidence charge has been condemned for having the opposite effect. By directing juror's attention to an additional, yet unnecessary, level of analysis, the circumstantial evidence charge serves only to confuse the real issue.” Id. (emphasis supplied).
The Ohio Supreme Court has also addressed the continued validity of the charge, stating “[t]he underlying rationale for the requirement that a circumstantial-evidence instruction should be given is predicated upon the assumption that circumstantial evidence is inherently suspicious and less trustworthy than is direct evidence. It is assumed that the multiple-hypothesis instruction is desirable in order to guard against an improper reliance and use by the jury of tenuous circumstantial evidence.” State v. Jenks, 574 N.E.2d 492 (1991), superseded by state constitutional amendment on other grounds, State v. Smith, 684 N.E.2d 668 (Ohio l997), cert denied, 523 U.S. 1125 (1998). Jenks went on to hold:
It is simply untenable to assume that circumstantial evidence is less reliable than is direct evidence. In short, whether direct evidence or circumstantial evidence is more trustworthy and probative depends upon the particular facts of the case and no generalizations realistically can be made that one class of evidence is per se more reliable than is the other class of evidence. Obviously, since circumstantial evidence is not per se less reliable than is direct evidence, there is no need to give the multiple-hypothesis instruction when circumstantial evidence is involved. In addition, we think the instruction is essentially a convoluted one, the main effect of which is to confuse the jury, possibly implying that a higher standard than reasonable doubt is necessary to render a verdict of guilty when circumstantial evidence is employed.
574 N.E.2d at 501, citing State v. Gosby, 539 P.2d 680 (Wash. 1975) (emphasis supplied). The West Virginia Supreme Court has similarly stated:
Circumstantial evidence and direct evidence inherently possess the same probative value. In some instances certain facts can only be established by circumstantial evidence. Hence, we can discern no reason to continue the requirement that circumstantial evidence must be irreconcilable with any reasonable theory of an accused's innocence in order to support a finding of guilt. We agree with those courts that have held that an additional instruction on the sufficiency of circumstantial evidence invites confusion and is unwarranted. Since circumstantial evidence and direct evidence are indistinguishable so far as the jury's fact-finding function is concerned, all that is required of the jury is that it weigh all of the evidence, direct and circumstantial, against the standard of proof beyond a reasonable doubt. Nothing more should be required of a factfinder.
State v. Guthrie, 461 S.E.2d 163, 175 (W. Va. 1995). See also State v. Humpherys, 8 P.3d 652 (Idaho 2000)(holding that in all criminal cases there should be only one standard of proof, which is beyond a reasonable doubt. Therefore, once the jury has been properly instructed on the reasonable doubt standard of proof, the defendant is not entitled to an additional instruction on circumstantial evidence even when all the evidence is circumstantial); State v. Ferm, 7 P.3d 193 (Haw. Ct App. 2000).
We are persuaded by the authorities highlighted above that the reasonable hypothesis charge merely serves to confuse juries by leading them to believe that the standard for measuring circumstantial evidence is different than that for measuring direct evidence when, in fact, it is not.[13] The standard remains whether the evidence reflects proof of the defendant’s guilt beyond a reasonable doubt. Accordingly, we hold that the recommended language in Grippon is the sole and exclusive charge to be given in circumstantial evidence cases in this state,[14] along with a proper reasonable doubt instruction. The opinion of the Court of Appeals is affirmed in result only.[15]
AFFIRMED IN RESULT ONLY.
MOORE and BURNETT, JJ., concur. TOAL, C.J., dissenting in a separate opinion in which Acting Justice Reginald I. Lloyd concurs.
CHIEF JUSTICE TOAL: The majority holds that the jury charge recommended in State v. Grippon is the sole and exclusive charge to be given in cases relying, in whole or in part, on circumstantial evidence. Because I believe that South Carolina courts should not abandon the traditional circumstantial evidence charge described in State v. Edwards, I dissent.
The traditional circumstantial evidence charge provides that when the State relies on circumstantial evidence to prove its case, a jury may not convict the defendant unless “every circumstance relied upon by the State [has been] proven beyond a reasonable doubt,” and “all of the circumstances so proven [are] consistent with each other and, taken together, point conclusively to the guilt of the accused to the exclusion of every other reasonable hypothesis.” State v. Edwards, 298 S.C. 272, 275, 379 S.E.2d 888, 889, cert. denied, 493 U.S. 895 (1989) (citing State v. Littlejohn, 228 S.C. 324, 89 S.E.2d 924 (1955)) (emphasis added). This charge is well established in South Carolina. E.g., Moriarty v. Garden Sanctuary Church of God, 341 S.C. 320, 338 n. 6, 534 S.E.2d 672, 681 n. 6 (2000); State v. Owens, 291 S.C. 116, 352 S.E.2d 474 (1987); State v. McIver, 238 S.C. 401, 120 S.E.2d 393 (1961); State v. Dornberg, 192 S.C. 513, 7 S.E.2d 467 (1940).
Recently, in State v. Grippon, this Court approved another charge that may be given instead of the traditional circumstantial evidence charge.[16] 327 S.C. 79, 83-84, 489 S.E.2d 462, 464 (1997). The charge recommended in Grippon emphasizes that direct and circumstantial evidence are to be given the same weight. More importantly, the charge does not require, as does the traditional charge, that the circumstances “point conclusively to the guilt of the accused to the exclusion of every other reasonable hypothesis.” Consequently, the Grippon charge leads jurors to believe, in my view, that direct and circumstantial evidence are to be evaluated in the very same manner. Because I disapproved of the new charge, I wrote a separate, concurring opinion. Id. at 84, 489 S.E.2d at 464.
Today, the Court holds that once a proper reasonable doubt instruction has been given, the charge recommended in Grippon is the sole remaining charge to be given in circumstantial evidence cases. In support of its holding, the majority finds that the traditional circumstantial evidence charge confuses jurors “by leading them to believe that the standard for measuring circumstantial evidence is different than that for measuring direct evidence.” Because I continue to disapprove of the Grippon charge, I write separately once again, this time in dissent.
It is clear that circumstantial and direct evidence may be “equally valid and convincing” in a criminal case. Moriarty, 341 S.C. at 338 n. 6, 534 S.E.2d at 681 n. 6. But unlike direct evidence, circumstantial evidence establishes collateral facts from which the main facts may be inferred. State v. Salisbury, 343 S.C. 520, 525 n. 1, 541 S.E.2d 247, 249 n. 1 (2001) (citations omitted). The evaluation of circumstantial evidence, therefore, requires jurors to connect collateral facts in order to reach a conclusion—a process not required when evaluating direct evidence.
The traditional circumstantial evidence charge does not, in my view, create confusion or change the standard for measuring circumstantial evidence. Instead, the charge clarifies the jury’s responsibility to evaluate circumstantial evidence carefully and gives jurors more detailed information about the relation of circumstantial evidence to the determination of guilt. Moreover, the standard for evaluating evidence remains unchanged: every circumstance must be proven beyond a reasonable doubt. Therefore, in my view, the Edwards charge should be retained.
The Grippon charge, on the other hand, does nothing to alert the jury to this separate and distinct analytical framework. This lack of instruction may have unintended, dangerous consequences. Juries may make logical leaps when putting evidence together, and in doing so, may reach illogical conclusions based on emotion or intuition instead of a rational, deliberative process.
In the present case, the State relied on the following evidence to prove, beyond a reasonable doubt, that Cherry was guilty of PWID: Cherry was a passenger in a car that was in a high crime area “known for drugs”; Cherry was carrying eight rocks of crack cocaine and $322.00, most of which was in twenty-dollar bills; and no drug paraphernalia were found in the car. Because the evidence of “intent to distribute” was purely circumstantial, Cherry requested that the trial judge charge the jury with the traditional circumstantial evidence charge.
Although it is inferable that Cherry intended to distribute crack cocaine, it is equally as inferable, in my view, he did not. Possessing drugs in a high crime area “known for drugs” does not automatically make one a drug dealer. It is also reasonable that $322 in cash would be comprised of mostly twenty-dollar bills. Moreover, it is reasonable to conclude that because Cherry did not have the requisite amount of crack cocaine on him to give rise to a permissive inference of distribution, he did not intend to distribute crack cocaine. Finally, that there were no drug paraphernalia in the car may or may not establish that Cherry was carrying the crack for his personal use.
In sum, there is no direct evidence that Cherry intended to distribute crack cocaine. Therefore, even if each circumstance were proven beyond a reasonable doubt, jurors must still ask themselves, under the Edwards charge, whether there is any other reasonable conclusion other than guilt. Without this instruction, the jury does not know that this critical step in the reasoning process exists. In fact, the jury is without an analytical framework in which to evaluate the evidence. That the circumstances could lead a juror to make reasonable inferences either way highlights the importance of retaining the Edwards charge.
I recognize, as I did in my Grippon concurrence, that a majority of states have abandoned the circumstantial evidence charge in favor of an approach that does not differentiate between direct and circumstantial evidence and simply provides that a defendant’s guilt must be proven beyond a reasonable doubt. See Irene Merker Rosenberg & Yale L. Rosenberg, “Perhaps What Ye Say Is Based Only on Conjecture”—Circumstantial Evidence Then and Now, 31 Hous. L. Rev. 1371, 1400 (1995) (describing the abandonment of the circumstantial evidence charge as a “bandwagon effect” in response to the United States Supreme Court’s decision in Holland v. United States, 348 U.S. 121 (1954), rather than a reasoned rejection of the longstanding charge). But several states have continued to require the special charge when the State’s case is based wholly or substantially on circumstantial evidence.[17] E.g., Stubbs v. State, 463 S.E.2d 686 (Ga. 1995); Nichols v. State, 591 N.E.2d 134 (Ind. 1992); People v. Ford, 488 N.E.2d 458 (N.Y. 1985); People v. Towler, 641 P.2d 1253 (Cal. 1982). Further, some states have advanced cogent reasons for retaining the charge. See, e.g., Ford, 488 N.E.2d at 465 (retaining the charge because it emphasizes the need for careful reasoning and “forecloses [the] danger … that the trier of facts may leap logical gaps in the proof offered and draw unwarranted conclusion based on probabilities of low degree”); State v. Nelson, 731 P.2d 788 (Idaho Ct. App. 1986), aff’d, 756 P.2d 409 (Idaho 1998) (rejecting the argument that the “reasonable hypothesis” language confused jurors and concluding that the language gave “sharpened clarity” to the meaning of reasonable doubt).
In my view, the charge advanced today as the sole and exclusive charge to be given in circumstantial evidence cases does nothing to direct the jury’s deliberative process. By omitting the “reasonable hypothesis” language, this Court leaves open the possibility that even when a reasonable theory exists supporting a defendant’s innocence, a (possibly erroneous) conviction will stand.
Therefore, in my view, the trial judge erred in not granting Cherry’s request that the jury be given the Edwards charge.
Acting Justice Reginald I. Lloyd, concurs.