OUJI-CR 9-3 and 9-4 should be given along with this instruction. This Instruction shall be used in all cases, where the proof is based upon circumstantioal evidence either in whole or in part.

Committee Comments

The characterization of evidence as "direct" or "circumstantial" pertains to the kind of inferences the finder of fact must draw from the evidence in order to use it as proof of a fact in issue. Direct evidence requires no inferences. Direct evidence may be believed or disbelieved, but because it tends to establish the fact in issue "directly", the only issue remaining for the finder of fact is that of credibility. For example, in a case where the defendant is charged with reckless driving, the testimony of an eyewitness, the arresting officer, that the witness observed the defendant's automobile traversing the highway at a speed of 90 miles per hour moments before arrest is direct evidence of the speed at which the defendant drove at the relevant time. The officer's ability to estimate the speed of moving vehicles by sight may be questioned. Similarly, his testimony may be probed for bias or impeached by his own prior inconsistent statements. But these matters bear on his credibility. If he is believed, the fact of speed at the time of the arrest is established; no other inferences are possible. Likewise, proof of a radar scan taken at the time of the arrest is direct evidence. The reliability of the radar test and of the operator administering it may be challenged. But if the finder of fact determines to credit the test, the fact of speed is directly established.

Circumstantial evidence is that which tends to establish proof of a fact in issue indirectly, requiring the finder of fact to draw inferences from the existence of circumstances adduced. For example, if an eyewitness testified that he observed the defendant driving 90 miles per hour fifteen minutes before the defendant's arrest, the trier of fact must reason inferentially that the excessive rate of speed persisted in order to conclude that the defendant was speeding when apprehended. Thus, circumstantial evidence requires the fact-finder to consider whether proof of certain facts and circumstances allows inferences from which the jury can find that connected facts and circumstances exist, as a matter of common experience and observation, which establish the fact in issue. Aday v. State, 1924 OK CR 28Okl. Cr. 201, 230 P. 280; Wertzberger v. State, 1923 OK CR 25Okl. Cr. 1, 218 P. 721.

The instructions direct the jury to consider circumstantial evidence with all the other evidence in reaching a verdict. No indication of the relative weight to be afforded circumstantial evidence in comparison with direct evidence is made, as the function of determining the relative weight to be given to the evidence is reserved to the jury. Circumstantial evidence, with the reasonable inferences drawn there from, has the same probative weight as direct evidence. Luker v. State, 1976 OK CR 135, 552 P.2d 715; Brewer v. State, 1969 OK CR 107, 452 P.2d 597; Young v. State, 1962 OK CR 70, 373 P.2d 273.

In Easlick v. State, 2004 OK CR 21, ¶ 4, 90 P.3d 556, the Court of Criminal Appeals abolished the reasonable hypothesis test in Oklahoma. The reasonable hypothesis test required jurors to exclude every reasonable hypothesis other than guilt in order to convict a defendant in a case where the prosecution relied on circumstantial evidence. In place of the reasonable hypothesis test, the Court of Criminal Appeals adopted a unified approach for determining the sufficiency of the evidence, in which no difference is given to the weight of circumstantial or direct evidence. Consequently, the Court of Criminal Appeals ordered modification of this instruction to remove the reasonable hypothesis test. Id. at n 3.