So What is “Evidence that Is Not Circumstantial”–in the Russia Investigation?

 

Rep. Adam Schiff, the top Democrat on the House Intelligence Committee, said Wednesday that “there is more than circumstantial evidence now…there is evidence that is not circumstantial” that associates of President Donald Trump colluded with Russia on that government’s efforts to interfere in the 2016 presidential election. CNN’s report on Wednesday evening also hinted that more than just circumstantial evidence now exists.

 

To better understand what Schiff meant by evidence that “is not circumstantial,” I reached out to Erin Murphy, a law professor at New York University who specializes in technology and forensic evidence in the criminal justice system. Here’s what she had to say about the difference between circumstantial and direct evidence in the context of the Russia investigation:

Proof typically divides into two general categories:  direct and circumstantial.  Although there are ongoing philosophical arguments about the precise definition of each, they are terms that are commonly used by lawyers to capture familiar concepts.  

Direct evidence is evidence that, if believed, does not require a person to make an inference to prove its point.  In contrast, circumstantial evidence does not prove its point on its own, but requires some measure of inference.  The classic example recited to juries in closing arguments is as follows:  if a witness testifies that she was walking in the rain, you have direct evidence that it was raining.  If a witness testifies that she was inside a windowless building, but observed people entering wearing raincoats, carrying umbrellas, and damp with water, then you have strong circumstantial evidence to find that it was raining, even though there is no direct proof.  

The former evidence is direct proof of rain — it does not require any inference to conclude it’s raining; if you believe the witness, you have proof of the rain.  The latter evidence is circumstantial evidence of rain — even if you believe the witness, it still requires some measure of inference to conclude that it was in fact raining.  Criminal cases are routinely proved by circumstantial evidence alone.  But for obvious reasons, circumstantial evidence leads more room for argument (E.g., “It wasn’t actually raining — there was a theatrical production of “Singin’ in the Rain” filming outside and these were just the performers coming in for a break!”).  

In this case, without having any knowledge of the actual investigation, I’d assume this means they have direct statements or evidence of collusion.  That is, rather than just circumstantial evidence (suspicious bank deposits, evidence of meetings or calls without more information as to their content, etc.), they have actual witnesses, documents, or wiretaps that show the criminal collusion taking place (“Release the tape tomorrow at 5:00p.m.”).  

At times, people use “circumstantial” evidence as a substitute for “weak” evidence.  Used in this way, to say there is “more than circumstantial evidence” might not be a statement about there existing direct evidence, but simply a way of saying “it is strong, not weak evidence.”

Image: Rep. Adam Schiff (D-CA), ranking member of the House Permanent Select Committee on Intelligence, departs after responding to committee chairman Devin Nunes’s comments earlier in the day about incidental collection of communications relating to U.S. President Donald Trump during the period of the presidential transition, March 22, 2017Win McNamee/Getty

 

About the Author(s)

Kate Brannen

Editorial Director of Just Security; nonresident senior fellow at the Brent Scowcroft Center on International Security at the Atlantic Council; previously senior reporter covering the Pentagon for Foreign Policy Follow her on Twitter (@K8brannen).