CALCRIM No. 223. Direct and Circumstantial Evidence: Defined
Judicial Council of California Criminal Jury Instructions (2020 edition)Download PDF
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
logically and reasonably 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.
New January 2006; Revised June 2007, February 2013
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: Suffıciency 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.
• Logical and Reasonable 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].
• This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174, 1186
[67 Cal.Rptr.3d 871].
• This Instruction Cited With Approval. People v. Livingston (2012) 53 Cal.4th
1145, 1166 [140 Cal.Rptr.3d 139, 274 P.3d 1132].
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, § 3.
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 737.
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, § 121.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.01, Ch. 85, Submission to Jury and Verdict, § 85.03[a]
CALCRIM No. 223 POST-TRIAL: INTRODUCTORY