Definition and significance of circumstantial evidence
Circumstantial evidence (also called indirect evidence) refers to a special form of proof in civil and criminal law. In contrast to direct evidence, in which the court can directly infer a fact relevant to the decision from an item of evidence (such as witness testimony or a document), circumstantial evidence only provides proof of auxiliary facts (circumstances), from which the main fact is inferred by way of logical deduction. The use of circumstantial evidence is particularly relevant when direct evidence is lacking or unavailable.
Structure of circumstantial evidence
Circumstantial evidence is a central tool for judicial persuasion. It requires a logical and comprehensible connection between the proven auxiliary fact and the main fact to be established. The circumstances must be suitable to allow, with sufficient probability, the conclusion that the fact to be proven actually exists.
Difference between direct and indirect evidence
While, in direct evidence, the fact to be proven is established directly by the item of evidence, in circumstantial evidence, individual, established circumstantial facts (auxiliary facts) are linked into a chain of circumstances, from which the main fact can be inferred indirectly. The court’s conviction must be based on the overall picture of the circumstances.
Circumstances as auxiliary facts
Circumstances are facts that are not themselves directly related to the main fact, but only gain significance in connection with other circumstances. They must be proven; merely assumed or unclear circumstances considerably limit the quality of circumstantial evidence.
Legal basis for circumstantial evidence
The legal standards for circumstantial evidence are not explicitly codified either in criminal procedure law or in civil procedure law. Nevertheless, the admissibility of circumstantial evidence is derived from the general rules of evidence established by procedural codes—particularly Section 286 of the German Code of Civil Procedure (ZPO) and Section 261 of the German Code of Criminal Procedure (StPO).
Judicial discretion in the evaluation of evidence
The court’s conviction of a main fact by means of circumstantial evidence is subject to judicial discretion in the evaluation of evidence. The court must assess all the circumstances as a whole and judge them taking into account common experience, general logic, and possible counter-evidence.
Circumstantial evidence in criminal proceedings
In criminal proceedings, circumstantial evidence is of particular importance because there are often no direct proofs of an accused person’s guilt or participation. The Federal Court of Justice (BGH) requires that the circumstances form a solid, comprehensible, and internally consistent chain of evidence, which must lead to a conclusion of guilt with near certainty. A judgment must not be based on mere suspicion or speculation. The principle ‘in dubio pro reo’ (when in doubt, for the accused) continues to apply in circumstantial evidence cases.
Circumstantial evidence in civil proceedings
In civil proceedings, circumstantial evidence particularly enables the proof of causal relationships, fault, or causes of damage when direct evidence is not available. Here too, it applies that the circumstances must be proven and provide sufficient probability of the alleged event.
Structure and requirements of circumstantial evidence
Chain and ring of evidence
A chain of circumstances consists of several auxiliary facts which, in their entirety, form a solid basis for proof. A distinction is made between a chain of circumstances (where the circumstances follow each other in a linear sequence) and a ring of circumstances (various independent circumstances pointing to the main fact).
Chain of circumstances
Here, each individual circumstance builds on the previous one, so the loss of a link weakens the entire chain.
Ring of circumstances
In a ring of circumstances, the auxiliary facts are not dependent on each other but exist independently and support each other mutually. This increases the force of the evidence, as the failure of one circumstance impairs the overall body of evidence less significantly.
Requirements of the highest court rulings
Case law requires that the circumstances are
- fully proven and verifiable,
- lead to the main fact logically and without contradiction,
- no contradictory counter-evidence exists, or such counter-evidence is convincingly refuted,
- and they are assessed as a whole.
Individual circumstances that merely suggest a possible but not probable connection are insufficient. The assessment of evidence must not contain mere conjecture or speculation.
Limits and risks of circumstantial evidence
Danger of false causality
A significant risk in circumstantial evidence lies in the danger of false causality. Coincidental correlations or faulty deductions can create an apparent chain of evidence that, in reality, does not exist. The court must therefore critically examine the plausibility of the circumstances and consider alternative explanations.
Reversal of the burden of proof
Circumstantial evidence does not lead to a reversal of the burden of proof. The party bearing the burden of proof must substantiate all circumstantial facts and convincingly present how, in light of all circumstances, these allow the main fact to be inferred.
Distinction from other forms of evidence
Circumstantial evidence differs from other forms of evidence such as strict proof or prima facie evidence. While strict proof requires legally regulated means of evidence (e.g., witness, document, inspection), circumstantial evidence consists of a process of assembling various facts.
Prima facie evidence is based on a typical sequence of events according to general experience, whereas circumstantial evidence requires specific and proven auxiliary facts.
Significance of circumstantial evidence in case law
Circumstantial evidence is indispensable in judicial practice, especially in situations where direct evidence is naturally lacking. It allows both in criminal and civil proceedings for complex facts to be clarified by means of a variety of auxiliary facts and enables the court to reach the conviction required for its decision.
Literature, case law, and further references
- § 286 ZPO (Free assessment of evidence)
- § 261 StPO (Judicial discretion in evaluation of evidence)
- BGH, Decision of April 20, 2017 – 2 StR 342/16
- BGH, NJW 1980, 2037 (Guiding principle on circumstantial evidence)
- Munich Commentary on the ZPO, § 286 marginal notes 21 et seq.
- Meyer-Goßner/Schmitt, StPO, § 261 marginal notes 2 et seq.
This article provides a comprehensive and factually substantiated presentation of circumstantial evidence and illustrates its legal classification, function, and limits within the German procedural orders.
Frequently asked questions
When is circumstantial evidence applied in criminal proceedings?
Circumstantial evidence becomes relevant in criminal proceedings when direct evidence, such as by eyewitnesses or a confession, is not available. In such cases, the guilt or innocence of the defendant cannot be proven directly and it is necessary to rely on individual, objectively verifiable facts—so-called circumstances—whose overall view and assessment allows conclusions to be drawn about the main fact to be proven (e.g., perpetration or commission of the crime). Circumstantial evidence is particularly used in capital or sexual offense cases when there are no direct witnesses, traces of the crime are rare or inconclusive, and the investigatory situation otherwise provides no direct evidence. From a legal perspective, circumstantial evidence is always subject to strict evaluation standards to avoid miscarriages of justice and arbitrary conclusions.
By what criteria does the court assess the quality of circumstantial evidence?
Courts are bound by strict principles developed by case law when assessing circumstantial evidence. Each individual circumstance must first be clearly established and objectively provable; they may not be based purely on speculations or assumptions. Furthermore, every circumstance must be assessed as to whether it is actually relevant to the main fact in the particular case. The circumstances may not be viewed in isolation, but only through a so-called overall assessment may a conviction be reached. The court must explain in detail in its judgment how it arrived at its conclusion from the totality of circumstances with the degree of certainty required for criminal law. Doubts arising from unproven or ambiguous circumstances always benefit the accused (in dubio pro reo).
Can a single circumstance be sufficient for a conviction?
As a rule, a single circumstance alone is not sufficient for a secure conviction in the criminal law sense. Case law instead requires an ‘overall assessment’ of all circumstances collected, which must ultimately be so persuasive that the trial judge has no reasonable doubt about the relevant main fact (e.g., perpetration). Even if a circumstance appears very strong, it must always be ruled out that there are alternative, non-offense related explanations. If there is only a single incriminating circumstance, it must be so clear and irrefutable that another explanation is practically excluded—a situation that rarely occurs in practice.
What role do alternative explanations play when assessing circumstances?
Alternative explanations are of great importance in the context of circumstantial evidence because they can call into question the reliability or attribution of individual circumstances. The court is obliged, within the framework of judicial discretion in evaluating evidence, to consider all seriously possible alternative hypotheses and, where appropriate, exclude them with understandable reasoning. Only when all other reasonable possibilities to explain the circumstances have been refuted can the court recognize the circumstances as incriminating and probative in relation to the main fact. Otherwise, the court must rule in favor of the defendant.
How does the court present its reasoning in the judgment of a circumstantial evidence case?
In the judgment of a circumstantial evidence case, the court is obligated to clearly identify the individual circumstances and to present in a comprehensible manner how their interaction led to the main fact to be proven. The judgment must reveal what significance each circumstance was given, how counter-evidence or exculpatory aspects were assessed, and how possible alternative explanations were handled. The evaluation of evidence must be transparent, logically comprehensible, and open to appellate review. Vague or general references to circumstances without differentiated assessment often lead to the judgment being overturned on appeal.
What is the significance of the fundamental principle ‘in dubio pro reo’ in circumstantial evidence?
The legal principle ‘in dubio pro reo’—when in doubt, for the accused—is of crucial importance in circumstantial evidence. Since direct evidence is lacking, what matters is whether the totality of the circumstances justify a conviction with the degree of certainty required for a conviction. If, after comprehensive evaluation, doubts remain that cannot be dispelled, these must never be to the detriment of the accused. The threshold for a conviction based on circumstances must always be set as high as for direct evidence; remaining or unresolvable doubts necessarily result in acquittal.
