Chapter 3: THINK “CIRCUMSTANTIALLY”
Chapter 3
Principle #3:
THINK “CIRCUMSTANTIALLY”
“I think we’re done with this one,” I said as I closed the cover of the red three-ring binder. I slipped it back onto the long shelf next to dozens of other red books in the homicide vault and looked at my partner. “Now I just have to tell Paula’s family.”
Our agency stores its cold cases next to our solved murders in a single storage room adjacent to the detective division. Solved homicides are stored in black binders, unsolved in red. The goal is to eventually fill the room with nothing but black binders. After a year with Paula’s case, I was frustrated that it was still in a red book.
Paula Robinson was murdered in the spring of 1988. She was a junior in high school, and her murder was a true whodunit. The crime scene told us a lot about what happened prior to her death but little about who was responsible. We knew she voluntarily allowed the suspect to enter her parent’s house. We knew that she had a sandwich with the killer, and he smoked a cigarette in the backyard. We also knew that the killer was with her in her bedroom where he tried to sexually assault her and eventually ended up killing her in a horrific rage. This crime scene was one of the worst in the history of our department.
While we knew a few things about the events leading up to the murder, we knew far less about the appearance and identity of the killer. Neighbors saw a young man leaving the residence following the crime, so we had a rough idea of how tall he was and about how much he weighed. But he was wearing a cap that covered his hair, and he fled so quickly that details related to his appearance were hard to come by. We did, however, recover a few of his hairs at the crime scene, and these hairs became our best lead.
The hair provided us with a partial DNA marker—not enough to enter into the statewide database, but enough to compare to anyone we might identify as a potential suspect. All we had to do was make a list of everyone and anyone who might be responsible for this and then go out and get his DNA. Sounds easy, right? Well, we spent a year identifying, locating, and then traveling around the country to collect DNA swabs from everyone we thought might have committed this crime. We swabbed thirty-four different men. All of them voluntarily agreed to be swabbed; we didn’t have to write a single search warrant. Why? Because none of them murdered Paula Robinson; none of them had anything to fear. In the end, we ran out of potential suspects. Nearly twenty-five years after the murder, we simply exhausted our leads in the case and found ourselves without any viable options. It was time to suspend the case once again.
I traveled out to see Paula’s mother one last time. Her hopes had been elevated when we reopened the case (and she learned that we might have a partial DNA marker). We tried to keep her expectations low, given the difficult nature of these kinds of cases, but she couldn’t help but get excited about the possibilities.
“Sometimes we have a suspect that fits the evidence and we’re able to put together a case, but this is not one of those situations,” I tried to explain. “I don’t need to have a DNA ‘hit’ in order to make a case, but in this situation, the DNA that we do have has actually eliminated everyone under consideration. I’m sorry.” Paula’s mother simply sat and wept.
In all my years working cold-case homicides, I’ve yet to encounter a case that was assisted by DNA. Most cold-case teams make a living with DNA hits, capitalizing on the latest technology and applying new science to old cases. I haven’t been that lucky. My experiences with the latest scientific advances have produced results like Paula’s case: a lot of work with no progress. Instead, I’ve been successful assessing cases that have little or no forensic evidence but are replete with what we call circumstantial evidence. I wish that Paula’s case was only one such example.
DIRECT AND CIRCUMSTANTIAL EVIDENCE
Evidence typically falls into two broad categories. Direct evidence is evidence that can prove something all by itself. In California, jurors are given the example of a witness who saw that it was raining outside the courthouse. Jurors are instructed, “If a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining.”9 This testimony (if it is trustworthy) is enough, in and of itself, to prove that it is raining. On the other hand, circumstantial evidence (also known as indirect evidence) does not prove something on its own, but points us in the right direction by proving something related to the question at hand. This related piece of evidence can then be considered (along with additional pieces of circumstantial evidence) to figure out what happened. Jurors in California are instructed, “For example, if a witness testifies that he saw someone come inside wearing a raincoat covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it was raining outside.”10 The more pieces of consistent circumstantial evidence, the more reasonable the conclusion. If we observed a number of people step out of the courthouse for a second, then duck back inside, soaked with little spots of water on their clothing, or saw more people coming into the courthouse, carrying umbrellas, and dripping with water, we would have several additional pieces of evidence that could be used to make the case that it was raining. The more cumulative the circumstantial evidence, the better the conclusion.
Most people tend to think that direct evidence is required in order to be certain about what happened in a given situation. But what about cases that have no direct evidence connecting the suspect to the crime scene? Can the truth be proved beyond a reasonable doubt when all the evidence we have is circumstantial? Absolutely.
Jurors are instructed to make no qualitative distinction between direct and circumstantial evidence in a case. Judges tell jurors, “Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other.”11 Juries make decisions about the guilt of suspects in cases that are completely circumstantial every day, and I’m very glad that they do; all my cold-case homicides have been successfully prosecuted with nothing but circumstantial evidence. Let me give you an example of the power and role of circumstantial evidence in determining the truth of a matter.
MURDER, CIRCUMSTANTIAL EVIDENCE, AND CERTAINTY
Let’s examine a hypothetical murder to demonstrate the power of direct and circumstantial evidence. I want you to put yourself on the jury as the following case is being presented in court. First, let’s lay out the elements of the crime. On a sunny afternoon in a quiet residential neighborhood, the calm was broken by the sound of screaming coming from a house on the corner. The scream was very short and was heard by a neighbor who was watering her lawn next door. This witness peered through the large picture window of the corner house and observed a man assaulting her neighbor in the living room. The man was viciously bludgeoning the victim with a baseball bat. The witness next saw the suspect open the front door of the house and run from the residence with the bloody bat in hand; she got a long look at his face as he ran to a car parked directly in front of the victim’s residence.
If this witness was now sitting on the witness stand, testifying that the defendant in our case was, in fact, the man she saw murdering the victim, she would be providing us with a piece of direct evidence. If we came to trust what this witness had to say, this one piece of direct evidence would be enough to prove that the defendant committed the murder. But what if things had been a little bit different? What if the suspect in our case had been wearing a mask when he committed the murder? If this were the case, our witness would be unable to identify the killer directly (facially) and would be able to provide us with only scant information. She could tell us about the killer’s general build and what kind of clothing he was wearing, but little more. With this information alone, it would be impossible to prove that any particular defendant was the true killer.
Now, let’s say that detectives developed a potential suspect (named Ron Jacobsen) and began to collect information about his activity at the time of the murder. When detectives questioned Ron, he hesitated to provide them with an alibi. When he finally did offer a story, detectives investigated it and determined that it was a lie. On the basis of this lie, do you think Ron is guilty of this murder? He fits the general physical description offered by the witness, and he has lied about his alibi. We now have two pieces of circumstantial evidence that point to Ron as the killer, but without something more, few of us would be willing to convict him. Let’s see what else the detectives were able to discover.
The Sufficiency of Circumstantial Evidence
During the interview with Ron, they learned that he had recently broken up with the victim after a tumultuous romantic relationship. He admitted to arguing with her recently about this relationship, and was extremely nervous whenever detectives focused on her. He repeatedly tried to minimize his relationship with her. Are you any closer to returning a verdict on Ron? He fits the general description, has lied about an alibi, and has been suspiciously nervous and evasive in the interview. It’s not looking good for Ron, but there may be other reasonable explanations for what we’ve seen so far. Even though we have three pieces of circumstantial evidence that point to Ron’s involvement in this crime, there still isn’t enough to be certain of his guilt.
What if I told you that responding officers found that the suspect in this case entered the victim’s residence and appeared to be waiting for her when she returned home? There were no signs of forced entry into the home, however, and detectives later learned that Ron was one of only two people who had a key to the victim’s house, allowing him access whenever he wanted. Ron certainly seems to be a “person of interest” now, doesn’t he? Ron matches the general description, has lied to investigators, is nervous and evasive, and had a way to enter the victim’s house. The circumstantial case is growing stronger with every revelation.
What if you learned that the investigators were approached by a friend of Ron’s who found a suicide note at Ron’s house? This note was dated on the day of the murder and described Ron’s desperate state of mind and his desire to kill himself on the afternoon that followed the homicide. Ron apparently overcame his desire to die, however, and never took his own life. The fact that Ron was suicidal immediately following the murder adds to the cumulative case against him, but is it enough to tip the scales and convince you that he is the killer? It was certainly enough to motivate the detectives to dig a little deeper. Given all this suspicious evidence, a judge agreed to sign a search warrant, and detectives served this warrant at Ron’s house. There they discovered a number of important pieces of circumstantial evidence.
The Cumulative Nature of Circumstantial Evidence
First, they discovered a baseball bat hidden under Ron’s bed. This bat was dented and damaged in a way that was inconsistent with its use as a piece of sporting equipment, and when the crime lab did chemical tests, detectives learned that while the bat tested negative for the presence of blood, it displayed residue that indicated it had been recently washed with bleach. In addition to this, investigators also discovered a pair of blue jeans that had been chemically spot cleaned in two areas on the front of the legs. Like the bat, the jeans tested negative for blood but demonstrated that some form of household cleaner had been used in two specific areas to remove something. Finally, detectives recovered a pair of boots from Ron’s house. The witness described the boots she saw on the suspect and told responding officers that these boots had a unique stripe on the side. The boots at Ron’s house also had a stripe, and after some investigation with local vendors, detectives learned that this unusual brand of boot was relatively rare in this area. Only two stores carried the boot, and only ten pairs had been sold in the entire county in the past five years. Ron happened to own one of these ten pairs.
There are many pieces of circumstantial evidence that now point to Ron as the killer. He had access to the victim’s house, lied about his activity on the day of the murder, behaved suspiciously in the interview, appeared suicidal after the murder, and was in possession of a suspicious bat matching the murder weapon, a pair of questionably spot-cleaned pants, and a set of rare boots matching the suspect’s description. At this point in our assessment, I think many of you as jurors are becoming comfortable with the reasonable conclusion that Ron is our killer. But there is more.
Our eyewitness at the crime scene observed the suspect as he ran to his getaway car, and she described this car to the detectives. The witness believed that the suspect was driving a mustard-colored, early ’70s Volkswagen Karmann Ghia. When executing the search warrant at Ron’s house, detectives discovered (you guessed it) a yellow 1972 Karmann Ghia parked in his garage. After examining the motor vehicle records, they discovered that there was only one operational Karmann Ghia registered in the entire state.
Is Ron the killer? Given all that we know about the crime, the only reasonable conclusion is that Ron is the man who committed the murder. Is it possible that Ron is just unlucky enough to suffer from an unfortunate alignment of coincidences that make him appear to be guilty when he is not? Yes, anything is possible. But is it reasonable? No. Everything points to Ron, and when the evidence is considered cumulatively, Ron’s guilt is the only reasonable conclusion. While there may be other explanations for these individual pieces of evidence, they are not reasonable when considered as a whole. Remember that as a juror, you are being asked to return a verdict that is based on what’s reasonable, not what’s possible.
Our case against Ron is entirely circumstantial; we don’t have a single piece of forensic or eyewitness evidence that links him directly. These are the kinds of cases I assemble every year as I bring cold-case murderers to trial. The case against Ron is compelling and overwhelmingly sufficient. If you, as a juror, understand the nature and power of circumstantial evidence, you should be able to render a guilty verdict in this case.
THE COSMIC CIRCUMSTANTIAL CASE
“Causal” Evidence
The question of God’s existence might be compared to our murder investigation. We assembled the circumstantial evidence and asked the question “How reasonable is it that this evidence can be interpreted in any way other than to indicate that Ron did this?” As the evidence accumulated, the likelihood of Ron’s innocence shrank. Similarly, we can look at the evidence in our world (and in the universe) and ask, “How reasonable is it that this evidence can be interpreted in any way other than to confirm the existence of God?” We live in a universe filled with characteristics (evidences) that demand an explanation. Let’s consider just a few of them:
A UNIVERSE WITH A BEGINNING
The vast majority of scientists continue to acknowledge that the universe came into being from nothing at some point in the distant past. Many have articulated this as the “big bang theory” (commonly referred to as the standard model of cosmology). But if the universe “began to exist,” what “began” it? What caused the first domino to fall in the long sequence of cause-and-effect dominoes? If this first domino fell over as the result of being toppled by some other domino, how far back does this sequence go? Scientists understand the absurdity of an endless sequence of dominoes spanning back into infinite eternity; everyone is looking for an “uncaused first cause” that is capable of starting the domino run all by itself. This “uncaused first cause” must exist outside of space, time, and matter (as nothing has ever been observed to cause itself to exist). What could be uncaused and powerful enough to cause the universe? If the caused universe once was not, why is it here at all? As Gottfried Leibniz famously wrote, “Why is there something rather than nothing?”12
We typically think of God as an eternal, all-powerful Being who exists outside of space, time, and matter. The evidence of the finite universe (a universe that has a beginning) points circumstantially to the existence of such a God. An incredibly powerful, uncaused first cause outside of space, time, and matter appears to be necessary to bring our universe into existence. If an eternal, all-powerful Being exists, Leibniz’s famous question has an answer. A Being of this nature might freely choose to create a universe that demonstrated His power and served as a place where His cherished creatures could begin to understand His nature. The causal evidence of the universe is a significant piece of circumstantial evidence for God’s existence.
A UNIVERSE WITH THE APPEARANCE OF DESIGN
Science has also helped us understand that the universe appears to be remarkably “fine-tuned” to support the existence of life. There are a number of forces in the cosmos that are precisely calibrated to work together to make life possible. The laws of electron mass, atomic mass, proton mass, strong nuclear force, weak nuclear force, speed of light, cosmological constant, gravity, mass of the universe, and many more are finely tuned to govern the universe and our world. Even within the atom itself, the precise relationship between protons, neutrons, and electrons appears to be fine-tuned and calibrated. According to Stephen Hawking, “If the proton-neutron mass difference were not about twice the mass of the electron, one would not obtain the couple of hundred or so stable nucleides that make up the elements and are the basis of chemistry and biology.”13 The forces in our universe, both small and large, appear to be fine-tuned to make life possible.
“Fine-Tuning” Evidence
In addition to these cosmic and atomic forces, there are also specific conditions that are necessary for a planet to support life. If, for example, the size of the earth were altered slightly, life would not be possible on the planet. When a planet is too small, it loses internal heat and cannot keep its interior core active; if a planet is too large, it will have too much water and too thick of an atmosphere. As it turns out, the characteristics of a planet must be just so for life to be possible. The presence of liquid water, the proper distance from a star, the existence of a terrestrial crust, a properly proportioned magnetic field, the correct ratio of oxygen to nitrogen in the atmosphere, the existence of a large moon, and a mother star of a specific and particular size and type are all required. The path that leads to life on earth seems to be very narrow and difficult, yet the forces that govern the universe (and our world) appear to have a goal in mind: the production of a universe in which carbon-based life can emerge.
How can random forces be so conspicuously aligned and organized to support life? Is it merely a coincidence? That’s certainly possible, but is it reasonable? If God exists, He is capable of fine-tuning the universe, and He just might have a reason to do so. The Bible, for example, describes God as the “Maker of heaven and earth” (Ps. 115:15), and describes Him as the Being who designed and created the universe with the earth in mind. The fine-tuning of the universe is another important piece of circumstantial evidence that points to the existence of an intentional, supernatural, powerful, and creative Being.
A UNIVERSE WITH COMPLEX LIFE
“Design” Evidence
Scientists observe what they call the “appearance of design” in biological systems. Even Richard Dawkins (the renowned and vocal atheist and emeritus fellow of New College, Oxford) concedes that biological systems often appear designed14 (although he proposes that a blind, natural process can somehow account for this appearance). There are many examples of cellular biological machines that demonstrate characteristics of “specified complexity” and bear a striking resemblance to systems and structures that have been designed by humans (intelligent agents). These characteristics lead many to the reasonable belief that unguided forces are simply insufficient to create such structures. William Dembski (the well-known mathematician, statistician, theologian, and intelligent-design advocate) has argued that specified complexity (and, therefore, the intervention of an intelligent agent) can be identified by using an “explanatory filter.” If an object or event (1) cannot be explained by some natural law that necessitates its appearance, (2) exists in spite of the high improbability that it could occur as the result of chance, and (3) conforms to an independently existing and recognizable pattern, the most reasonable inference is that it is the product of an intelligent designer.15
Perhaps the most important evidence suggesting the involvement of an intelligent designer is the presence of DNA and the guiding role that this DNA plays in the formation of biological systems. Science has demonstrated that DNA is actually a digital code; DNA is specified information. DNA exhibits characteristics that, when examined through Dembski’s explanatory filter, are best explained by the creative activity of an intelligent designer. As Stephen C. Meyer argues in his book Signature in the Cell, “Intelligence is the only known cause of complex functionally integrated information-processing systems” (italics original).16 In other words, in the history of scientific and intellectual research, we can find no example in which information came from anything other than an intelligent source. If DNA is a form of specified information that guides the complex process of cellular formation and biological structures, “intelligent design stands as the best—most causally adequate—explanation for this feature of the cell, just as it stands as the best explanation for the origin of the information present in DNA itself.”17
If biological systems display characteristics of design (in the form of specified complexity), it is reasonable to conclude that a designer has been involved in the process. What kind of designer could be responsible for the information, complexity, and specificity we see in biological systems? If God exists, He would certainly possess the characteristics and power to accomplish such a thing. The presence of specified information in biological systems is yet another piece of circumstantial evidence that points to the existence of God.
A UNIVERSE WITH OBJECTIVE MORALITY
“Moral” Evidence
Each and every one of us feels a certain obligation to moral duty. We have an intuitive sense of moral oughtness; we recognize that some things are right and some things are wrong, regardless of culture, time, or location. We understand that it’s never morally right to lie, steal, or kill for the mere fun of it. These moral laws are transcendent and objective: their truth is not a matter of subjective opinion. Regardless of how you or I might feel about these laws, the truth of their moral status lies in the actions themselves, not in our subjective opinions about the actions. We may discover moral truth, but we do not invent it. Because of this, we are able to look across history and culture and make meaningful judgments about the moral rightness or wrongness of any given set of actions. We recognize that culture itself cannot be the source of moral law, and that there is instead a “law above laws” that transcends all of us. So, where does transcendent, objective moral truth come from?
All moral laws come from moral lawmakers. If there exists even one transcendent moral law (e.g., it’s never morally right to kill someone for the mere fun of it), there must exist a transcendent moral source.
Darwinian evolution has great difficulty accounting for the existence of objective moral obligations for two reasons. First, if we live in a purely natural, physical world governed by the “cause and effect” relationships between chemical processes in our brains, “free will” is an illusion, and the idea of true moral choice is nonsensical. How can I, as a detective, hold a murderer accountable for a series of chemical reactions that occurred in his brain when he didn’t have the freedom to escape the causal chain of biological events?
In addition to this, Darwinian evolution cannot produce truly objective morality. If moral truths are merely behavioral concepts that humans have created to aid their survival, morality is once again rooted in the subject (humans) rather than in the objective moral truth claim under consideration (e.g., whether it’s ever morally right to kill someone for the mere fun of it). If morality is simply a convention of our species, we’d better hope that science-fiction writers are wrong about the possibility of sentient life in other parts of the universe. Unless there is a “law above the laws,” an entity such as Star Trek’s United Federation of Planets would be powerless to stop immoral behavior. Objective morality must be rooted in something bigger than the evolutionary development of any one species.
If God exists, He would certainly transcend all species, cultures, locations, and moments in time. For this reason, the existence of transcendent moral truth is best explained by the existence of God as the transcendent source of such truth. Once again, we have an important piece of circumstantial evidence.
The cumulative circumstantial case for God’s existence is much like the circumstantial case we made in our murder investigation. The more evidence we gathered, the clearer it was that Ron’s involvement as the killer could account for all of it. Ron was either incredibly unlucky or incredibly guilty. At some point we recognized that the evidence made Ron’s guilt in the matter the only reasonable inference, and we got there without a single piece of direct evidence. In a similar way, the circumstantial evidence in our universe is consistent with God’s existence and involvement as the uncaused first cause, the fine-tuner, the designer, and the moral lawgiver required to account for all the evidence we observe. As in the homicide investigation, the more evidence we gather, the more reasonable our conclusion becomes. We’ve only briefly described four lines of circumstantial evidence for God’s existence. Much more can (and has) been said about these areas of evidence by the expert witnesses listed at the end of this book. In addition to these evidences, investigators and philosophers have offered many additional arguments (including the Ontological Argument, the Transcendental Argument, the Argument from Religious or Aesthetic Experience, and many more). The cumulative circumstantial evidence pointing to God’s existence is either incredibly coincidental or a compelling indication of the truth of the matter. At some point, God’s existence is the only reasonable inference in light of the evidence, and like our homicide, we can get there without a single piece of direct (or forensic) evidence.
As the circumstantial case against Ron grew, the likelihood of his guilt also grew. As the circumstantial case for God grows, the likelihood of His existence also grows. If the evidence for Ron’s guilt is compelling enough to reasonably conclude that he is guilty, the evidence for God’s existence is compelling enough to reasonably conclude that He exists.
A TOOL FOR THE CALLOUT BAG, A TIP FOR THE CHECKLIST
It’s time to add another principle to our investigative checklist as we assemble the tools we’ll need to investigate and communicate the claims of Christianity. Circumstantial evidence has been unfairly maligned over the years; it’s important to recognize that this form of evidence is not inferior in the eyes of the law. In fact, there are times when you can trust circumstantial evidence far more than you can trust direct evidence. Witnesses, for example, can lie or be mistaken about their observations; they must be evaluated before they can be trusted (we’ll talk about that in the next chapter). Circumstantial evidence, on the other hand, cannot lie; it is what it is. You and I have the ability to assess and make an inference from the circumstantial evidence using our own reasoning power to come to a conclusion. It’s not a coincidence that I was a nonbeliever before I learned anything about the nature of evidence. In those days, as I was evaluating the claims of Christianity, I demanded a form of evidence (direct evidence) that simply isn’t available to anyone who is studying historical events. I failed to see that rejecting (or devaluing) circumstantial evidence would prevent me from understanding anything about history (when eyewitnesses of a particular event are unavailable for an interview). If I continued to reject (or devalue) circumstantial evidence, I would never have been able to successfully prosecute a single cold-case killer. All of us need to respect the power and nature of circumstantial evidence in determining truth so that we can be open to the role that circumstantial evidence plays in making the case for Christianity.
I’m alarmed sometimes when I hear Christians make inaccurate statements related to the nature of evidence. When discussing evidence with skeptics, we don’t need to concede that a particular fact related to the Christian worldview is not a piece of evidence simply because it is not a piece of direct evidence. Even though a particular fact may not have the individual power to prove our case in its entirety, it is no less valid as we assemble the evidence. When we treat circumstantial evidence as though it is not evidence at all, we do ourselves a disservice as ambassadors for the Christian worldview. Circumstantial evidence is powerful if it is properly understood. When defending our belief in the existence of God, the resurrection of Jesus, or the validity of the Christian worldview, we may need to take some time to explain the nature, role, and power of circumstantial evidence. It’s time well spent, because most of our friends, family members, and coworkers have not given this much thought. We need to help people understand the depth and quantity of the evidence that supports our view. Remember, circumstantial cases are powerful when they are cumulative. The more evidence that points to a specific explanation, the more reasonable that explanation becomes (and the more unlikely that the evidence can be explained away as coincidental). Take the time to discover and master the evidence for yourself so you can articulate the deep, rich, and robust evidential support for the claims of Christianity.
CASE NOTES
9. Judicial Council of California, Judicial Council of California Criminal Jury Instructions, CalCrim Section 223.
10. Judicial Council of California, Judicial Council of California Criminal Jury Instructions, CalCrim Section 223.
11. Judicial Council of California, Judicial Council of California Criminal Jury Instructions, CalCrim Section 223.
12. Gottfried Leibniz, Philosophical Writings, trans. and ed. G. H. R. Parkinson (London: Dent, 1973), 199.
13. Stephen Hawking, Black Holes and Baby Universes and Other Essays (New York: Bantam, 1993), Google eBook, chapter 7.
14. Richard Dawkins, The God Delusion (Boston: Houghton Mifflin, 2006), 188.
15. For more information on design inferences, refer to William A. Dembski, The Design Inference: Eliminating Chance through Small Probabilities (Cambridge: Cambridge University Press, 1998).
16. Stephen C. Meyer, Signature in the Cell: DNA and the Evidence for Intelligent Design (New York: HarperOne, 2009), 346.
17. Meyer, Signature in the Cell, 346.