Criminal lawPractical guidesCircumstantial evidence in Spanish criminal proceedings: when it is enough to convict without direct evidence

The vast majority of criminal convictions are not based on direct evidence, an eyewitness or a confession, but on circumstantial evidence: a set of proven facts from which, through logical reasoning, the court infers guilt. Whether that inference is legitimate, rather than a mere suspicion dressed up as reasoning, is what separates a sound judgment from a conviction that can be annulled.

Constitutional recognition: judgments 174/1985 and 175/1985

The Spanish Constitutional Court accepted early on that circumstantial evidence is capable of rebutting the presumption of innocence (judgments 174/1985 and 175/1985 of 17 December), provided it meets certain guarantees. It is not second-class evidence: properly constructed, it may carry greater incriminating force than a single testimony. What matters is the rigour of the link between the indications and the conclusion.

The requirements laid down by the Supreme Court

The Second Chamber of the Supreme Court has systematised the requirements with precision. On the one hand, the indications must be fully proved by direct evidence, since indications based on other indications are not allowed, and they must be plural, or exceptionally single but of singular probative force. On the other hand, they must be interrelated and reinforce one another. Above all, the inference must conform to the rules of logic and experience, so that the conclusion flows from the indications without leaps: an inference that is excessively open, weak or indeterminate, in which other reasonable alternative conclusions could equally be drawn from the base facts, is prohibited.

Control of the reasoning

Article 120(3) of the Constitution requires judgments to give reasons, and in circumstantial evidence that requirement is intensified: the court must state which the indications are and what reasoning leads from them to the proven fact. This twofold statement, the indications and the inferential reasoning, can be reviewed on cassation and in constitutional protection proceedings, and its absence or irrationality amounts to a breach of the presumption of innocence (Article 24(2) of the Constitution). The review does not concern the inner conviction of the judge, but the soundness of the link.

Counter-evidence: the role of the defence

Faced with a circumstantial accusation, an effective defence does not merely deny: it introduces counter-indications and reasonable alternative hypotheses that weaken the univocal character of the inference. It is enough to show that another plausible explanation can be drawn from the same base facts for the incriminating conclusion to cease to be the only possible one and, with it, for certainty beyond reasonable doubt to fall away. It is a job of reverse evidential architecture: dismantling the link, not each brick separately.

Practical application

In economic offences, drug trafficking or cybercrime, where direct evidence is scarce and almost everything is inference, mastery of the doctrine on circumstantial evidence is decisive. Our method starts by mapping every indication relied on by the prosecution, assessing whether it is really proved and building the alternative hypotheses that break the univocal nature of the inference.

The standard of proof: beyond reasonable doubt

Circumstantial evidence does not lower the standard of proof. The presumption of innocence requires that guilt be established beyond reasonable doubt, and the Constitutional Court has held, since its early judgments on the matter, that a conviction based on indications is compatible with that presumption only if the indications are fully proven by direct evidence, are plural (or a single one of exceptional strength), are related to each other and concordant, and the reasoning that leads from them to the conclusion of guilt is set out expressly in the judgment and conforms to logic and experience. A conclusion that is merely possible, or one of several equally plausible explanations, cannot support a conviction. The judgment must therefore explain why the alternative hypotheses put forward by the defence have been rejected; silence on this point is itself a ground of appeal.

Examples from practice

The courts have accepted, for instance, the possession of stolen goods shortly after the theft together with the absence of a credible explanation; the presence of drugs in a quantity exceeding personal consumption along with scales, packaging material and unexplained cash; or a sequence of telephone contacts, movements and payments coinciding with the commission of an offence. They have rejected, on the other hand, convictions built on a single indication of limited strength, such as the mere presence of the accused near the scene, the existence of a motive without further proof, or the accused’s refusal to explain facts that the prosecution had not proven. The absence of an explanation from the accused may reinforce indications already proven, but it can never replace them, because the burden of proof always lies with the prosecution.

How the defence attacks circumstantial reasoning

The defence works on three levels. First, on the facts on which the indications rest, contesting the evidence that supposedly proves them. Second, on the inference, offering alternative explanations that are consistent with the same facts, supported where possible by evidence of an alibi, of a lawful origin of goods or money, or of the involvement of third parties. Third, on the judgment itself, since a conviction whose reasoning is not explicit, or whose inference is too open, may be quashed on appeal before the provincial court or the High Court of Justice and, ultimately, in cassation before the Supreme Court, which reviews the rationality of the inference even though it does not re-evaluate the evidence.

Frequently asked questions

Can I be convicted in Spain without a witness or a confession?

Yes, on the basis of circumstantial evidence, provided the indications are proved, plural and interrelated and the inference is logical and explained in the judgment.

What must the judgment contain?

It must state which the indications are and the reasoning that leads from them to the proven fact. Without that twofold statement, the presumption of innocence is breached.

How does the defence fight circumstantial evidence?

By proving that a reasonable alternative explanation fits the same base facts, which removes the univocal character of the inference and the certainty beyond reasonable doubt.

Can a single indication be enough to convict?

Only exceptionally, when it is of singular strength. As a rule the courts require several indications, fully proven and concordant, and a reasoned inference set out in the judgment.

Does the accused have to explain the indications against them?

No. The burden of proof lies with the prosecution. The absence of an explanation may reinforce indications already proven, but it can never replace them.

Related guides

• The victim’s testimony as sole evidence in Spain
• Chain of custody of evidence in Spain
• Frequently asked questions on criminal defence in Spain

This article is informative in nature and does not constitute legal advice. For a specific case, consult a lawyer.