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Criminal Defense Lawyers and the Difference Between “evidence” and “circumstantial Evidence”

Kish Law LLC

I am a criminal defense lawyer who practices mostly in Atlanta, but I try to keep up with other cases from around the country if they involve the federal court system where I handle the bulk of my practice.  I recently came across a case from south Florida, a case that reminded me that criminal defense lawyers need to fully understand and be able to explain to their clients that there really is no difference between “regular” evidence and “circumstantial evidence.”  The case comes out of the United States Court of Appeals for the Eleventh Circuit, where I have done hundreds of appeals in my career and where I need to go for yet another oral argument in a few weeks.

The case from Florida involved a man named Spencer Rozier.  Basically, surveillance videos and rental documents demonstrated that Mr. Rozier had a rather small unit in a private storage facility. He was the only renter, and the lease did not give anyone else access to the unit.  He was observed visiting, and was seen carrying cases of beer, soda cans and water jugs (I’ve lived in Florida, and can attest to the need for constant hydration-my friends used to comment “Paul doesn’t drink a lot, he just drinks all the time”).  The manager also saw others visit the facility along with Mr. Rozier, and these folks likewise carried boxes of beverages. The police raided the facility, discovered drugs inside that both smelled (marijuana) and which appeared to be obvious (transparent container holding cocaine, marijuana “protruding out of a bucket”, digital scales and baggies).  Mr. Rozier also had similar baggies with him when stopped by the police a month later.

Mr Rozier’s legal team pointed to evidence that undercut the idea that he knowingly possessed the drugs found inside the storage unit.  It was not Mr. Rozier’s fingerprints on the containers holding the drugs.  His DNA could not be linked to the storage unit.  While there were videos showing him going into and out from the unit, none of the videos showed him holding the containers inside of which the contraband as discovered.  His son, with whom he lived, was arrested in possession of similar drugs AFTER Mr. Rozier was already in custody.

The general rule is that there has to be “sufficient”evidence in order to support a criminal conviction.  When a case is on appeal, all the breaks and close calls go in favor of the prosecution, the theory being that the jury likely construed the evidence in such a way as to find the person guilty.  But, and here’s the thing I have been fighting about for three and half decades, another line of cases says that “when the government relies on circumstantial evidence, reasonable inferences, not mere speculation, must support the conviction.”  To me, the magic question has always been what is the difference between a “reasonable inference” and something called “mere speculation.”  If I wake up in the morning and the driveway is wet, does that mean I can reasonably infer that it rained while I slept?  Or, is that merely speculation, considering that my garden hose has a leak?

Turning to Mr. Rozier’s case, the Court of Appeals affirmed his conviction, holding that there was enough circumstantial evidence to support a “reasonable inference” that this man had, at the very least, constructive possession of the drugs inside the storage facility.  The evidence also supported the “reasonable inference” that he “knew” what he possessed, in that the pot smelled quite strong, was protruding from a container,  and the cocaine was in a clear bag.

Criminal defense lawyers often talk with clients about whether the prosecution does, or does not, have a good case against the accused persons.  this is yet one more case to use when reminding clients that circumstantial evidence can sometimes be just as strong and difficult to fight against in court.

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