Comparing Physical And Circumstantial Evidence

Is physical evidence better than circumstantial evidence? The Seventh Circuit recently considered whether the admission of the actual cell phone was error and whether physical evidence is better than circumstantial evidence, in United States v. Arrellano, _ F.3d _ (7th Cir. July 2, 2014) (No. 13-1474)

Evidence comes in many forms including direct or circumstantial evidence. A recent Seventh Circuit case posed the question whether physical evidence is necessarily better than circumstantial evidence.

Trial Court Proceedings: Admitting Physical Evidence

Defendant Arrellano was prosecuted for conspiring to possess heroin and cocaine with intent to distribute and using a cell phone to facilitate the conspiracy. The government obtained numerous recorded statements which were played at trial and admitted under FRE 801(d)(2)(E). See Taking The Conspiracy As He Finds It (discussing the admissibility of the co-conspirator statements). The government also introduced the cell phone as physical evidence at trial. The jury convicted the defendant. On appeal, he contended that the cell phone should have been suppressed since it was obtained involuntarily and that "it was the 'only physical evidence' that connected him to the alleged conspiracy," and "the government highlighted it as a significant piece of evidence and insisted that it be sent back with the jury." Arrellano

Seventh Circuit Review: Contrasting Physical Evidence

The Seventh Circuit found it unnecessary to decide whether the cell phone should be suppressed since any error war harmless. Interestingly, the circuit raised the issue of harmlessness as the government did not present this alternative ground. United States v. Ford, 683 F.3d 761, 768 (7th Cir. 2012) (“we are authorized, for the sake of protecting third-party interests including such systemic interests as the avoidance of unnecessary court delay, to disregard a harmless error even though through some regrettable oversight harmlessness is not argued to us”) (quoting United States v. Giovannetti, 928 F.2d 225, 226 (7th Cir. 1991)).

The circuit addressed the issue of the weight of physical evidence compared with other evidence:

However, physical evidence is not required to support a conviction, nor is it inherently better than other evidence. Cf. United States v. Re, 401 F.3d 828, 834 (7th Cir. 2005) (quoting United States v. Rodriguez, 53 F.3d 1439, 1445 (7th Cir. 1995)) (noting that “circumstantial evidence may be the sole support for a conviction” and that it “is not less probative than direct evidence and, in some cases is even more reliable”).

Arrellano, _ F.3d at _. The circuit found ample other evidence showed the defendant's role in the conspiracy.

The circuit noted that the government "did not rely on any data recovered from the phone, such as stored contacts or call history" as "it had phone records to prove those things." The cell phone evidence tended to show that the defendant "physically possessed it at the time of his arrest, and consequently, that he was the person who used the phone during the relevant period." However, other evidence established this point since the defendant "stipulated that the phone was subscribed in his name, and GPS data showed that it moved from the house he owned in Lula, Georgia, to the house where he was arrested in Harvey, Illinois." Based on this evidence, any error in admitting the physical cell phone "was clearly harmless" as the circuit concluded. Arrellano, _ F.3d at _.


The Arrellano case raised an interesting question about whether physical evidence is better than circumstantial evidence. In the end, the weight that the jury may place on one form over another will depend on the facts.

It is not uncommon for courts to instruct a jury that there is no reason to prefer direct over circumstantial evidence. For example, consider the following instruction from the Seventh Circuit:

2.03 Direct and Circumstantial Evidence

You may have heard the terms “direct evidence” and “circumstantial evidence.” Direct evidence is evidence that directly proves a fact. Circumstantial evidence is evidence that indirectly proves a fact. You are to consider both direct and circumstantial evidence. The law does not say that one is better than the other. It is up to you to decide how much weight to give to any evidence, whether direct or circumstantial.

Committee Comment

The phrase “circumstantial evidence” is addressed here because of its use in common parlance and the likelihood that jurors may have heard the term outside the courtroom.

The committee did not include examples in the standard instruction, though it does not rule out their use in a given case (an it has included one as an option in the preliminary instructions). If used, however, caution is required. One oft-used illustration is the following: “An example of direct evidence that it was raining would be testimony from a witness who said she was outside and saw it raining. An example of circumstantial evidence that it was raining would be testimony that a witness observed someone carrying a wet umbrella.” Examples of this sort may be too simplistic to illustrate the definitions in a given case, and they omit the fact that more than one conclusion may be drawn from circumstantial evidence (in the example, the wet umbrella might mean that the person walked under a lawn sprinkler). If asked to give examples, the court should consider these points and should also consider whether it is more appropriate to leave the matter for attorney argument.

Pattern Criminal Jury Instructions of the Seventh Circuit No. 2.03 (Feb. 4, 2013)


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