There are usually two types of evidence in every trial. One is called direct evidence. The other is called circumstantial evidence. Direct evidence consists of testimony as to what a witness actually saw, heard, or did concerning an event in issue between the parties. Circumstantial evidence is evidence of a circumstance or circumstances surrounding an issue. When a witness gives circumstantial evidence he or she testifies about circumstances relating to the issue in dispute between the parties. From these related circumstances the Court is asked to draw an inference as to what actually happened.
Here is a simple example of the difference between the two types of evidence. Suppose you tell your little boy not to eat some pie that you put in the fridge. Later you come into the kitchen. Your boy is standing beside the kitchen table. The pie plate is on the table. He is holding a fork in his hand. There are crumbs of pie on his face. If you had been in the kitchen and watched him eat the pie, you would have direct evidence that he ate it because you saw him eat it. But the circumstances in which you found him—in the kitchen holding a fork and with crumbs on his face—permit you to draw an inference that he ate the pie.
POSSIBLE ERRORS IN DIRECT EVIDENCE
There are two possible errors in direct evidence. First, a witness who saw an event might not be telling the truth for one reason or another. Second, the witness might be mistaken.
POSSIBLE ERRORS IN CIRCUMSTANTIAL EVIDENCE
On the other hand, when relying on circumstantial evidence, there are three possibilities for error. There are the two possibilities which arise from direct evidence—untruthfulness or mistake. The third potential error relating to circumstantial evidence is the possibility of drawing a wrong inference from the proven facts.
For instance, in the example I gave you, it is possible that another child came into the kitchen before your little boy. That child took the pie out of the fridge and ate some of it. He or she then left the pie and the fork on the table. A few minutes later your little boy came into the kitchen, picked up the fork, and licked it. You then arrived.
DRAWING AN INFERENCE
The Court may consider all direct and circumstantial evidence. There is no reason to automatically prefer one kind of evidence over the other. When drawing an inference based on circumstantial evidence the Court must be satisfied on a balance of probabilities that the results reached are the most reasonable inference to be drawn from the proven facts. Before the Court can draw an inference, the Court must have a solid base of proven facts. Otherwise, the results reached were merely conjecture or guesswork. No issue should be decided on a guess, no matter how shrewd that guess may be.