After the Webinar: A Practitioner’s Guide to the Identification and Analysis of Criminative Evidence. Q&A with Judge Brandon Birmingham

Webinar presenter Judge Brandon Birmingham answered a number of your questions after his presentation, A Practioner’s Guide to the Identification and Analysis of Criminative Evidence.  Here are just a few of his responses.


Audience Question: Do you have an example of a 4O4B ——— motion on change in circumstances? I think I phrased that right. 

Brandon Birmingham: In Texas in about 1979, I could be wrong about that. We eliminated the distinction in Texas between circumstantial and direct evidence for jury charges. So, we don’t have those types of jury charges anymore. So, I’m sorry that I don’t have an example of that. I really wish I could come up with it if you want to e-mail me at and tell me what jurisdiction you’re in. Maybe we can figure that out.


Audience Question: You shared the components here in today’s webinar. Does what you discussed today, apply both in criminal cases as well as civil cases? 

Brandon Birmingham: Absolutely. These principles apply anytime you’re trying to piece together some event that jurors or investigators haven’t seen. A civil case, a car wreck, you have the collision, you’ve got perhaps a reason for it, there must be. Was somebody speeding? Where they not? You start out by looking at the damage. The same way that she would start out by trying to ascertain what the instrument was that caused the death at a murder case. Each wound, each collision, between a bullet and a body or a car and a car is going to follow the same rules of cause and effect. And so, you can make certain conclusions from that because the person speeding were they not speeding? Are they paying attention, well, that depends on where they are? The car wasn’t relation to the other cars, or the collision occurred and all of those things. So, yes, these principles apply anytime you’re trying to uncover an event that has not been seen and then present that as a fact-finding mission to a judge in a civil case or a jury in a civil case, that’s somebody in a criminal case.


Audience Question: The idea of representation or that the victim represents something is interesting. So, does this also connect to the notion of motives? So, for example, government officials in the Murrah building represented McVeigh’s impression of the government. So, therefore, he struck back at the government’s ‘tyranny’ or whatever he felt about the government? Does that, do those connections make sense to say? Is that true?

Brandon Birmingham: Absolutely. True. And motive can be such a powerful indicator. Because if you think about when you’re trying to solve a crime, every crime has a motive. So how many people on earth would have wanted to do that first of all? Whether they actually possess the bomb or not, just start out with that, who would have wanted this to happen? And certainly, McVeigh fit the mold. He had all these anti-government writings, he was obsessed with it, he bugged his family members about it, he was just immersed in this radical anti-government sentiment. So, he is the type of person who would. I mentioned the Murrah building in particular, because it was an easy target and because of what it represented. But the idea is that in the same way that you would try to juxtapose a gun with a murder weapon and the suspect. You want to try to juxtapose the motive of the crime with the crime itself and the person who you’re alleging to have committed. Sometimes these motives can be very unique. I think Tex Watson, we didn’t talk about it, but the Manson Family killings were such unique and idiosyncratic. If you could discern the motive from the crime scene, he wrote on the wall, “War” “Pigs” and all that kind of stuff, and they wrote “Helter Skelter” and that was probably the big one. Then you have that motive once you can develop and see if that motive was somebody was developed or espoused by somebody, some person will then you have a connection between the motive and the crime and the person, and that’s a very powerful connection motive. I also submit to you that motive is the way that most people, most jurors, will make decisions about punishment. So, it’s very important to develop what the motive is, and then once it’s developed, that’s how people make decisions about punishment.


Audience Question: As you know, a number of our probation and parole folks are in our audience, can you also apply these same principles and maybe use an example if that’s at all possible? And provide an example of how these same principles would apply, just change the venue to what our probation and parole officers experience on a regular basis.

Brandon Birmingham: Well, of course. And, first of all, thank you all for what you do in keeping us safe. It’s a really, really hard job, and I really appreciate it.  But if the act is violating your parole in some way, let’s say, by using drugs or by not reporting to your parole officer. The event that you’re trying to uncover is the taking of the drugs or they’re not reporting to parole. So, how do you prove that? Well, I’m taking the drugs. You’ve got a drug test that’s given. The drug test has certain reliability factors that go into it. Certain measures and procedures must be followed, and once they’re followed, the conclusion is that the person ingested drugs. Lots of times what will happen is that they won’t deny that they were around them, they just deny that they ingested them at all. So how do you prove that that’s right? Well, you can look at are they honest about it? And if they ever had a history of it before? When they were confronted with what was their response? Did that response change? When were the drugs taken? And around this time, did the circumstances in their life change? All of a sudden, they’re missing parole appointments, now. Things like that. So, yes, it applies the same way, whether it’s a parole hearing, a civil case, or a criminal case.


Audience Question: If eyewitness testimony can be so problematic at times, why do we rely on it so much?

Brandon Birmingham: First of all, we rely on it way less than we used to. We really have to be careful when we say what is unreliable?  Eyewitness testimony, when we say that it’s unreliable, what we’re really talking about is stranger on stranger identification one-time of a crime. A person comes up with a gun in my face and takes my money. I can tell you right now, I’m horrible at recognizing anybody people coming to my courtroom all the time. But, you know, the value of eyewitness testimony like that in a criminal investigation has been lessened over the years because of those exonerations. We used to —————-. Now, we don’t ——————-. There’s usually when we use the word corroboration, corroborating evidence. What we’re really talking about is circumstantial evidence that lends itself to the same conclusion that Brandon was there at the crime scene. We talked the example we gave during the talk was a really good example of that, and I don’t know that we would go forward on a murder case if, in my example, our witness was 80% sure that it was Brandon who was coming out of the crime scene. We might go forward on the murder case if the eyewitness was 80% share, and plus they had my cell phone, and maybe they had fingerprints to go along with it, and they knew that I hated the victim and I had problems with the victim or that it was my gun that was used in the killing. So, it is we rely on it but not to the same extent that we used to. It becomes a piece of the case, and it’s still surely pieces of cases, but it’s not usually the central piece of a case.


Audience Question: Judge, do these concepts work in reverse then? So, when we’re talking about exonerations like you were just talking about a few minutes ago. Do these principles apply equally as well? 

Brandon Birmingham: Absolutely, because now it’s the same principles apply, because they uncover what actually happened. And in those exoneration cases, I think, a lot of times, what would happen isn’t it would rely too heavily on one fact. They lacked reciprocal convergence or multi-source proof of some fact. A lot of those, almost all of them were eyewitness identification. Somebody said, “I was sexually assaulted,” or “I was robbed.” The police would put somebody in a lineup without a reason other than the person who was known to be around the area and a bad person back in the day, they would put them in lineups, and we had a whole host of problems with that. There wasn’t any physical evidence. There was no corroboration for that person to be in there. There was no homicide chain. We’ve seen now that you have to have those homicide chains, those elements of a connection before you can even put somebody in a lineup, because I think what we’ve learned is that you’ve got to have multi-sourced evidence to prove that somebody’s guilty beyond a reasonable doubt.


Click Here to Watch a Recording of A Practioner’s Guide to the Identification and Analysis of Criminative Evidence.   



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