specially concurring:
I agree with my colleagues the evidence is sufficient to support the judgment in this case and I agree with the reasons set forth supporting such result. However, with respect to the circumstantial evidence instruction it is my opinion the full instruction should have been given but in view of the difficulties in determining what evidence is direct evidence and what is not, it appears to me there is at present no criteria for determining whether the instruction should or should not be given in full. (See my dissenting opinion in People v. Minish, 19 Ill. App. 3d 603, 312 N.E.2d 49.)
When we speak generally of direct and circumstantial evidence we are endeavoring to talk about the relative quality of the evidence. We emphasize that neither kind of evidence is good or bad but rather that some kinds of evidence may be more probative than others depending upon the situation and the facts to be proved. With respect to circumstantial evidence such evidence may but need not support the final inferences for which such evidence is introduced. In the common use of the term some of the inferences may be coincidental and equally subject to contrary inferences and it is for this reason in some cases caution about the ultimate inference is required. In other types of cases the ultimate inference may be quite probable and hence the probative value of the basic evidence is high.
My colleagues have suggested the statement of the defendant to a co-prisoner in jail is direct evidence. They have also suggested the evidence of age and the medical opinion that the sample tested was sperm were also direct evidence. With respect to the defendant’s statement it is clear that within the usual meaning such a statement is not direct evidence. However, where such a statement amounts to a confession it is sometimes said that it is of even more probative value than direct evidence and considered of higher and perhaps the highest quality of evidence. A statement to a fellow prisoner is quite different from a confession and in fact is usually considered of little or no probative value. Evidence of age certainly has nothing to do with direct evidence that a crime was committed or by whom and is permitted as an exception to the hearsay evidence rule. If direct evidence generally refers to eyewitness testimony of the occurrence then expert testimony of whatever its character could not be considered direct evidence.
The giving of the full circumstantial evidence instruction is usually opposed by the prosecution for the reason that it appears to be akin to a reasonable doubt instruction couched in terms more favorable to the defense than to the prosecution. On the other hand, some defendants do not like the full instruction because it calls attention to the fact the jury is not required to believe alternative possibilities. In any event it seems to me the exercise of determining whether evidence is direct or circumstantial is of no useful purpose in the absence of some definitive exposition on the reasons for the instruction and the distinctions which are applicable.
Accordingly, even though I believe the evidence in this case is all circumstantial, I am not persuaded the recommendation of the drafters of the Uniform Pattern Instructions are viable at this time.