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After months of trial in the Scott Peterson case, what did prosecutors really prove? No eyewitnesses, no obvious motive, no murder weapon, no blood, no reliable cause of death and no solid forensic evidence linked Peterson to the murders. To many observers, particularly journalists brought up in the age of television shows like CSI, it all appeared to add up to a hugely embarrassing, high-profile acquittal. But if there is one lesson to be learned from the swift conviction of Peterson it is this: Those who underestimate the power of circumstantial evidence do so at their peril. While eyewitness testimony, Perry Mason-style, can make for moments of high drama in the courtroom, experienced prosecutors know that more often than not it is circumstantial evidence that brings home the conviction. Although that may sound counterintuitive, it is not. First of all, studies have shown that eyewitness testimony is often the most unreliable form of evidence. Witnesses often have fleeting glimpses of defendants in less than optimal conditions. Distance between witness and subject may be far. Lighting may be poor due to weather conditions or time of day. Witnesses may feel compelled to make an identification for fear of letting a dangerous criminal walk. But even beyond the question of reliability, testimonial evidence brings with it all of the baggage and frailties of the witnesses themselves. Forgetfulness, credibility issues, hidden agendas and motives to fabricate, all can be exploited by defense lawyers on cross-examination to undermine what had appeared to be rock solid evidence. Other forms of direct evidence, while helpful, can also be fraught with pitfalls for the prosecution. The timing and manner in which forensic evidence is collected or tested can be questioned and even the all-powerful DNA evidence can be undermined-witness the O.J. Simpson debacle. Moreover, that type of evidence can become more of a battle of the experts, taking the jury somewhat out of the decision-making process. On the other hand, circumstantial evidence is, well, more a matter of common sense. Juries like it because it lets them be the detectives, splicing together a trail of clues that eventually may solve the crime. If the power of eyewitness testimony is narrative, the power of circumstantial evidence is cumulative. And perhaps therein lies its real strength. Like pieces of a puzzle, prosecutors were able to paint a convincing portrait of Peterson as a skilled liar and heartless schemer who killed his wife and unborn child to avoid the lifelong responsibility of marriage and parenthood. Block by block, prosecutors built their case using the boat, the fishing license and the cement used to weigh down the body at the bottom of the bay. With that, plus evidence of a torrid affair with a massage therapist weeks before the murders, prosecutors piled up enough circumstantial evidence to bury Peterson. Although as a matter of law the burden of proof never shifted, at that point, the defense was virtually forced to produce evidence of a reasonable alternative to the prosecution’s theory of the case. But the defense failed to persuade jurors that its alternative theory of multiple killers in a van made any sense. They simply had no other possible suspect, no other motive for the killings and no credible explanation as to why Lacy Peterson’s body would have been found so far from home. In the absence of a credible alternative theory, the government’s circumstantial case was enough to convict. Instructions play a role But that should have come as no surprise. At the close of the trial, judges will generally instruct juries that circumstantial evidence is to be accorded the same weight as direct evidence. Indeed, in some respects it is even more persuasive than direct, eyewitness testimony since it is generally not vulnerable to the same avenues of attack on cross-examination. Circumstantial evidence is not an after- the-fact recollection recounted by a witness who may now have the benefit of hindsight in shaping his or her testimony, but is instead often a small piece of evidence, frequently insignificant at the time, sometimes delivered by the defendant, often created at or around the time of the alleged offense. When defense lawyers implore jurors to put their emotions aside and to analyze the evidence in a fair and almost scientific manner, they are often inadvertently strengthening the government’s circumstantial case, since this is precisely the type of evidence that is the most objective and devoid of human frailty. With eyewitness testimony, the defense is given an opportunity to attack the messenger and raise doubt about the accuracy of the evidence. Circumstantial evidence in many ways speaks for itself. As for Peterson, lying and cheating may not add up to murder, but it was more than enough to persuade jurors to connect the dots in a string of circumstantial evidence that led to his conviction. Robert A. Mintz, a former federal prosecutor, heads the securities litigation and white-collar criminal defense practice at Newark, N.J.’s McCarter & English.

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