People v. Crow

JUSTICE MILLER, dissenting:

The State has asked that by our opinion in this case we abolish any distinction between direct and circumstantial evidence for purposes of instructing juries and reviewing cases on appeal. Because I believe that circumstantial evidence is not intrinsically different from direct evidence, I would do so.

Unlike the majority, I would abandon the use of the “reasonable hypothesis” instruction contained in Illinois Pattern Jury Instructions (IPI), Criminal, No. 3.02 (2d ed. 1981). The first paragraph of that instruction explains what circumstantial evidence is; the second paragraph contains the charge, “You should not find the defendant guilty unless the facts or circumstances proved exclude every reasonable hypothesis of innocence.” The charge has been given when the evidence of guilt was entirely circumstantial (People v. Evans (1981), 87 Ill. 2d 77, 83 ), and the majority would continue that practice.

In Holland v. United States (1954), 348 U.S. 121 , 99 L. Ed. 150 , 75 S. Ct. 127 , the United States Supreme Court found no error in the refusal to give an instruction such as the one at issue here. The court said:

“The petitioners assail the refusal of the trial judge to instruct that where the Government’s evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt. There is some support for this type of instruction in the lower court decisions [citations], but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect [citations].

Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.” 348 U.S. 121, 139-40 , 99 L. Ed. 150 , 166-67, 75 S. Ct. 127, 137-38 .

Although recognizing that many courts no longer give a “reasonable hypothesis” or “negative exclusion” instruction when the evidence of guilt is entirely circumstantial, the majority declines to abandon the second paragraph of IPI Criminal 2d No. 3.02. The majority explains:

“We are not persuaded that, absent reinstituting the practice of instructing the jury concerning standards for the determination of reasonable doubt, it is appropriate to discontinue the practice of giving an instruction in the form of IPI 3.02. We are similarly unpersuaded as to the wisdom of reinstituting the practice of instructing juries concerning a definition of reasonable doubt.” (108 Ill. 2d at 536.)

For the reasons indicated, the majority concludes that the “reasonable hypothesis” instruction should continue to be given when the evidence of guilt is entirely circumstantial.

Because no distinction is drawn between the two types of evidence for purposes of determining guilt, I believe that the “reasonable hypothesis” charge should be discarded. There is but one standard of proof in criminal cases, and that requires proof beyond a reasonable doubt of every element of the offense. (In re Winship (1970), 397 U.S. 358 , 25 L. Ed. 2d 368 , 90 S. Ct. 1068 .) The “reasonable hypothesis” charge implies that the two types of evidence are different, and it, therefore, is likely to mislead a jury. One court has observed:

“Rather than aiding jurors in applying the reasonable doubt standard, an additional charge on circumstantial evidence focusing on the ‘reasonable hypothesis’ theory serves only to distract jurors from examining the proper standard of proof as the primary focus of their deliberations.” (Hankins v. State (Tex. Crim. App. 1981), 646 S.W.2d 191, 199 (opinion on rehearing).)

The jury’s function as trier of fact remains the same regardless of whether the evidence of a defendant’s guilt is entirely circumstantial, entirely direct, or a mixture of the two. In each instance the jurors are asked to consider the evidence, to weigh it in the light of their own observations and experiences in life, and to apply the law to the facts as they find them from the evidence. Thus, it makes little sense to instruct a jury that the evidence must exclude every reasonable hypothesis of innocence when, for example, the evidence indicates that stolen goods were discovered in the possession of a person whose fingerprints, otherwise unexplained, were found at the place from which the goods were stolen, but to omit that instruction when the evidence against the defendant is based solely on the testimony of a single eyewitness, whose memory, opportunity to observe, or credibility might be suspect.

Therefore, I conclude that in instructing juries and in reviewing cases on appeal, no distinction should be made between circumstantial evidence and direct evidence. The two stand on the same footing — one is intrinsically no different from the other — and it is misleading to suggest to a jury that circumstantial evidence is in some way inferior to direct, that it is inherently less reliable or probative. That confusion, however, is the real effect of the “reasonable hypothesis” charge contained in IPI Criminal 2d No. 3.02.

In declining to follow Holland, the majority mentions that in many of those jurisdictions in which the “reasonable hypothesis” charge is omitted, an instruction is given defining “reasonable doubt.” That misapprehends the defect in the charge, however. The “reasonable hypothesis” instruction should be abolished “not because another part of the charge dispenses with the need for it, but because it is inherently confusing to a jury by suggesting that a different burden of proof than the reasonable doubt standard applies in circumstantial evidence cases.” (Hankins v. State (Tex. Crim. App. 1981), 646 S.W.2d 191 , 199 n.1 (emphasis in original) (opinion on rehearing).) Accordingly, there is nothing inconsistent in omitting both types of instructions. See Hankins v. State (Tex. Crim. App. 1981), 646 S.W.2d 191 ; Blakely v. State (Wyo. 1975), 542 P.2d 857 ; but see State v. Lasley (Mo. 1979), 583 S.W.2d 511 .

The majority also suggests that the “reasonable hypothesis” charge may be discarded only if the jury is given an instruction defining “reasonable doubt.” That argument proves too much, for it implies that the special instruction serves merely as a substitute for a definition of “reasonable doubt.” There is no reason to suppose that if “reasonable doubt” is to be defined, that should be done only when all the evidence of guilt is circumstantial. Thus, if the “reasonable hypothesis” charge must be retained here, then a definition of “reasonable doubt” should be given too in those cases when the charge is not used, a result that the majority disavows.

Notably, the “reasonable hypothesis” charge originated as a definition of reasonable doubt. In Carlton v. People (1894), 150 Ill. 181 , cited by the majority, the charge was used to define “reasonable doubt”; the court did not endorse the instruction but found no error in giving it. In effect, then, the “reasonable hypothesis” instruction that the majority preserves by its opinion perpetuates an old way of defining “reasonable doubt,” a result that the majority seeks to avoid.

A number of State and Federal courts follow the Illinois rule that no definitional instruction should be given. In United States v. Lawson (7th Cir. 1974), 507 F.2d 433, 442 , the court said, “Because of the very commonness of the words, the straining for making the clear more clear has the trap of producing complexity and consequent confusion.” In United States v. Shaffner (7th Cir. 1975), 524 F. 2d 1021, 1023 , the court said that “any use of an instruction defining reasonable doubt presents a situation equivalent to playing with fire.” In Holland, in referring to an instruction improperly defining “reasonable doubt,” the Supreme Court said, “ ‘Attempts to define the term “reasonable doubt” do not usually result in making it any clearer to the minds of the jury,’ Miles v. United States, 103 U.S. 304, 312 , and we feel that, taken as a whole, the instructions correctly conveyed the concept of reasonable doubt to the jury.” Holland v. United States (1954), 348 U.S. 121, 140 , 99 L. Ed. 150 , 167, 75 S. Ct. 127, 138 .

Because the “reasonable hypothesis” instruction contains the type of definition of reasonable doubt that concerns the majority, and because circumstantial evidence is not inherently different from direct, I would abandon IPI Criminal 2d No. 3.02 and would give instead an instruction that defines both “direct evidence” and “circumstantial evidence” (see, e.g., People v. Bennett (Colo. 1973), 515 P.2d 466 , 469 n.1). For the same reasons, I would not apply a different standard on review. I agree with the majority that the evidence in the case before us is sufficient to support a finding that the evidence excluded every reasonable hypothesis of innocence, which is the standard now in use. For that reason and because I believe that the “reasonable hypothesis” instruction should be abandoned, I respectfully dissent from the result reached by the majority.