legal mouth-flapping: circumstantial evidence, smoking gun, active house

[victor steinbok]

A part of this comment in response to popular assumptions that some
kinds of evidence are more determinative than others. So it is common
to find comments in news articles that X is being prosecuted "merely"
or "only on circumstantial evidence". I guess, the underlying
assumption is that eyewitness testimony is not only more reliable but
more damning. The reality is usually the opposite. To make matters
worse, the terminology is fuzzy--what is referred to as
"circumstantial evidence" frequently is not.

I am not sure what we have in the case of the Lizzie Borden trial:

http://goo.gl/F9bWa
> The case came to a dramatic ending when a jury of 12 men returned a not-guilty verdict, an outcome that Martins believed was probably justified. "She was acquitted because there was no evidence against her," Martins said. "Any evidence they had was circumstantial."
> The lone smoking gun the state attempted to link to Borden was a hatchet retrieved from the house. But that hatchet, which is now part of the Fall River Historical Society collection, may have actually helped Borden’s defense. "They found no blood on the hatchet," Martins said. "They did find one stand of hair, but it did not match the hair taken from the head of the victims."


Not only is the use of "circumstantial evidence" unclear here--coming
right after the claim that "there was no evidence" at all--but "the
... smoking gun" does not mean here what it usually means.

Turning to some legal terminology,

Law.com (People's Law Dictionary):
> circumstantial evidence
> n. evidence in a trial which is not directly from an eyewitness or participant and requires some reasoning to prove a fact. There is a public perception that such evidence is weak ("all they have is circumstantial evidence"), but the probable conclusion from the circumstances may be so strong that there can be little doubt as to a vital fact ("beyond a reasonable doubt" in a criminal case, and "a preponderance of the evidence" in a civil case). Particularly in criminal cases, "eyewitness" ("I saw Frankie shoot Johnny") type evidence is often lacking and may be unreliable, so circumstantial evidence becomes essential. Prior threats to the victim, fingerprints found at the scene of the crime, ownership of the murder weapon, and the accused being seen in the neighborhood, certainly point to the suspect as being the killer, but each bit of evidence is circumstantial.


The opposite of "circumstantial evidence" is not eyewitness accounts,
but "direct evidence":

> direct evidence
> n. real, tangible or clear evidence of a fact, happening or thing that requires no thinking or consideration to prove its existence, as compared to circumstantial evidence.

Nolo's Plain English Law Dictionary states that "smoking gun" is
"Slang for evidence that decisively proves a cause." This can be
circumstantial or direct. (one thing it cannot be is eyewitness
testimony.)

How is the Borden hatchet a "smoking gun" when it proved absolutely nothing?

These claims can be blamed on Gabriel Falcon--the MSNBC staffer who
wrote the piece. But he also quoted one of the surviving Borden
relatives on another matter:

> Does she believe the house is haunted? "I don’t like to use the word ‘haunted,’" she said, "I like to call it ‘active’"

That's not the meaning of "active house" that pops up in
searches--it's a variant of "active, adj. A. 2." in OED:

http://goo.gl/9qCXD
> The idea of an Active House stems from the more well known Passive House design. A Passive House is designed to be super efficient, thus eliminating the need for a grid-powered heating and cooling system. Unfortunately, as well as Passive homes may work much of the time, there is inevitably some point in the year when natural extremes win out and most passive homeowners purchase back-up heating systems to maintain comfort levels. The Active house expands on the passive house concept by striving to create a home that simply produces more energy than it uses in a year, making it a positive energy or resource positive home.

Nonetheless, the term "active" does appear in the wild in reference to
ghost activity (watch about half an hour of Ghost Hunters and you will
hear it). This one is closer to OED's A. 4.a.

Although both meanings are understandable derivatives of the
respective standard uses of "active", neither use, either for "active"
or for "active house" is in the OED.

VS-)

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