Week two of the criminal trial against Dr. Murray for Michael Jackson's death is now complete. Dr. Murray is accused of manslaughter in connection with the pop singer's death. The prosecution's primary contention is Dr. Murray' recklessly gave Jackson propofol, a surgical anesthetic, which led to Jackson's death. The defense claims Jackson caused his own death when he secretly took propofol while Dr. Murray was out of the room. As a Chicago medical malpractice lawyer, I have been following this trial closely. I am particularly interested in learning what evidence the defense will use to claim Jackson took propofol himself without Dr. Murray's knowledge or consent. Thus far, there has been no direct evidence to support the defense's contention. Instead, the evidence on Jackson allegedly taking propofol himself has been circumstantial.

It seems Dr. Murray will not be taking the stand in his own defense. Thus, Dr. Murray will seek to rely on other sources of evidence for his claim Jackson took propofol behind Dr. Murray's back. A recorded statement by Dr. Murray to detectives has yielded some evidence to support Dr. Murray's claim Jackson caused his own death with propofol. On the recorded statement, Dr. Murray is heard telling detectives that Jackson begged for his "milk," the nickname Jackson apparently used for propofol. Dr. Murray told detectives he had been trying wean Jackson off propofol, after suggesting Jackson may have been addicted to the drug. Dr. Murray further told detectives he had not given Jackson propofol for three days before his death but relented the morning just before Jackson died. That morning, Dr. Murray told detectives he gave in and provided Jackson a small dosage of propofol after Jackson begged and pleaded for the drug. Dr. Murray then claims that, after stepping away from monitoring Jackson for a two-minute bathroom break, he returned to find Jackson not breathing.

Based on the recorded statements to detectives, Dr. Murray's defense has provided some evidence for its theory Jackson taking propofol when Dr. Murray was not looking. During Dr. Murray's two-minute bathroom break, the defense suggests Jackson took propofol. Jackson was not breathing when Dr. Murray returned because of the added propofol he gave himself and that added dosage resulted in Jackson's death.

What is interesting about Dr. Murray's defense is that it does not rely on any direct evidence--at least thus far. In civil and criminal trials, facts can be proven by direct evidence or circumstantial evidence. Direct evidence can prove a fact by itself. In Dr. Murray's case, there has been no evidence anyone saw Jackson take the propofol himself that morning. Instead, Dr. Murray's defense is predicated on circumstantial evidence (which relies on indirect evidence to prove a fact). Circumstantial evidence does not directly prove a fact but, instead, suggests a fact through another fact or series of facts. The classic example is a witness testifies he saw someone come inside wearing a raincoat covered in drops of water. That testimony is circumstantial evidence to support that the claim (or fact) it was raining outside.

Circumstantial evidence is not necessarily weak evidence. In medical malpractice cases, I regularly rely on circumstantial evidence. However, some circumstantial evidence is quite weak. Using our wet raincoat example, the fact a person walked inside with a wet raincoat does not, alone, prove it had been raining for seven days straight. In Dr. Murray's case, the fact Jackson may have been addicted to propofol, and that Dr. Murray walked away for two minutes and then found Jackson not breathing, hardly proves Jackson took propofol while Dr. Murray was away. That said, the recorded statement does provide Dr. Murray's defense something from which to argue their defense. After all, the defense in a criminal trial does not need to prove anything. All they need to do is create reasonable doubt.

Sources Used:

CNN Website, Michael Jackson Called Hiring Me "Devine Guidance," Murray Says, October 7, 2011.

Justia Website, Direct And Circumstantial Evidence: Defined, October 7, 2011.