Criminal Law

223. Direct and Circumstantial Evidence: Defined

Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself. For example, if a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining. Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may conclude the truth of the fact in question. 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.

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. You must decide whether a fact in issue has been proved based on all the evidence.

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction explaining direct and circumstantial evidence if the prosecution substantially relies on circumstantial evidence to establish any element of the case. (People v. Yrigoyen (1955) 45 Cal.2d 46, 49 [286 P.2d 1] [duty exists where circumstantial evidence relied on to prove any element, including intent]; see People v. Bloyd (1987) 43 Cal.3d 333, 351-352 [233 Cal.Rptr. 368, 729 P.2d 802]; People v. Heishman (1988) 45 Cal.3d 147, 167 [246 Cal.Rptr. 673, 753 P.2d 629].) The court must give this instruction if the court will be giving either CALCRIM No. 224, Circumstantial Evidence: Sufficiency of Evidence or CALCRIM No. 225, Circumstantial Evidence: Intent or Mental State.

The court, at its discretion, may give this instruction in any case in which circumstantial evidence has been presented.


Direct Evidence Defined. Evid. Code, § 410.

Inference Defined. Evid. Code, § 600(b).

Difference Between Direct and Circumstantial Evidence. People v. Lim Foon (1915) 29 Cal.App. 270, 274 [155 P. 477] [no sua sponte duty to instruct, but court approves definition]; People v. Goldstein (1956) 139 Cal.App.2d 146, 152-153 [293 P.2d 495] [sua sponte duty to instruct].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, § 3.

5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 652.

1 Witkin, California Evidence (4th ed. 2000) Circumstantial Evidence, § 117.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83, Evidence, § 83.01[2], Ch. 85, Submission to Jury and Verdict, § 85.03[2][a] (Matthew Bender).

(New January 2006)