The Tipping Point: An Epistemic Approach to Circumstantial Evidence

The following is written with specific regard to criminal prosecutions in the State of New Jersey. It is intended to further the discussion of abductive legal reasoning, introduced in my previous blog, “An Inference to the Best Explanation: How Courts Should Decide 12(b)(6) Motions in the Era of Plausibility Pleading.”

The test of sufficiency of evidence is whether the evidence viewed in its entirety, including legitimate inferences therefrom, is sufficient to enable the fact finder to find that the elements of a charge have been established beyond reasonable doubt. State v. Mayberry, 52 N.J. 413 (1968). The approach is the same whether the proffered evidence is testimony, circumstantial, or direct. Id. at 436-37; State v. Ray, 43 N.J. 19, 31 (1964) (“The test in weighing circumstantial evidence to determine if guilt exists is the same as in the case of direct or testimonial evidence, namely, whether it is sufficient to generate a belief of guilt beyond a reasonable doubt”). So long as evidence is of sufficient quality to convince the fact finder of defendant’s guilt beyond a reasonable doubt, it matters not that the evidence is circumstantial. State v. Dancyger, 29 N.J. 76, 84 (1959); State v. Donohue, 2 N.J. 381, 389 (1949). Circumstantial evidence is “ofttimes more certain, satisfying and persuasive than direct evidence.” State v. O’Connor, 134 N.J.L. 536, 539 (Sup. Ct. 1946).

The State is entitled to the benefit of all legitimate inferences reflected by evidence; each fact is not to be isolated from other circumstances proven, but is to be weighed as it associates with or relates to other relevant proofs proffered by the State. State v. Cerce, 22 N.J. 236, 246 (1956); State v. Rhams, 14 N.J. 282, 285 (1954). For circumstantial evidence to provide a sufficient basis for conviction, it need not have the quality of certainty. Bornstein v. Metropolitan Bottling Co., 26 N.J. 263, 274 (1958). The probative worth of circumstantial evidence is determined by the rules of ordinary reasoning, such as those that govern mankind in the ordinary affairs of life, subject only to the qualification that guilt in criminal cases must be established beyond a reasonable doubt. State v. O’Connor, 134 N.J.L. 536 at 539. Where circumstantial evidence is relied on as a basis for deductive reasoning, the determinative inquiry is whether the evidence demonstrates the offered hypothesis as a rational inference; that is to say, a hypothesis well founded in reason and logic, and grounded in the common experience of mankind. Yeomans v. Jersey City, 27 N.J. 496, 510 (1958). Thus, the question before a fact finder is whether the evidence in its entirety, giving the State the benefit of all legitimate inferences therefrom, is sufficient to support a finding of guilt beyond a reasonable doubt. See State v. Dancyger, 29 N.J. 76 (1959).

Often, however, circumstantial cases come down to a tipping point- that point where the totality of the evidence convinces a fact finder that a particular hypothesis is the best explanation of the data in comparison with the alternatives. See John R. Josephson, On the Proof Dynamics of Inference to the Best Explanation, 22 Cardozo L. Rev. 1621, 1622 (2001). At it’s basic structure, the tipping point takes the following general form (Burdens and Standards of Proof for Inference to the Best Explanation: Three Case Studies):

  • “D” is a collection of Data
  • “H” explains “D.
  • No other hypothesis explains “D” as well as “H” does


  • Therefore “H” is probably true

Somewhere along the line, the fact finder reaches the tipping point: the contention of the other side may make sense; it may even seem plausible, but given the totality of the evidence and the comparison of hypotheses, “H” is the best explanation. In concluding that no other hypothesis explains “D” as well as “H” does, a fact finder makes the judgement that “H” is the proposition or ordered sequence of events that explains more, is simpler, more plausible, makes fewer assumptions, and requires less ad hoc changes. See Gilbert Harman, The Inference to the Best Explanation, 124 Phil. Rev. 88, 90-91 (1965).

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