____________________

BENCH MEMORANDUM
____________________

MATTER—Stacking or Pyramiding Inferences in Criminal Cases

AUTHOR—Hon. William H. Burgess, III
DATE—March 23, 2018
____________________

Where the evidence creates only a strong suspicion of guilt or simply a probability of
guilt, the evidence is insufficient to sustain a criminal conviction. Additionally, evidence is
insufficient to support a conviction when it requires pyramiding of assumptions or impermissibly
stacked inferences.1

1. Inferences.

An inference is a reasonable, logical, and permissible factual deduction or conclusion

which the trier of fact may draw from the existence of a fact or group of facts proved, and which
the trier of fact may reject or accord such probative value as it desires.2 Any inference must be
founded on a fact or facts proved, and must be such a deduction from those facts as is warranted
by a consideration of the relevant circumstances. It is the thing proved and not guessed at.3

Intuition is not a substitute for evidence, and guilt cannot rest on mere probabilities.4
When the evidence is circumstantial, the circumstances underlying the inference must be proved
and not presumed.5 If the trier of fact cannot reasonably make the deduction, the law does not
authorize it. An inference is thus not reasonable if it is only a guess or a possibility, for such an
inference is not based on the evidence but is pure conjecture and speculation.6

In a criminal trial, the trier of fact is permitted to draw a legitimate inference where there
is any evidence to support the inference. In jury trials, whether there be any evidence is a
question for the judge; whether sufficient evidence is for the jury. The exact legal meaning of the
phrase “any evidence” has evolved from any evidence at all, even a scintilla, to that which ought
reasonably to satisfy the trier of fact that the fact sought to be proved is established. Presently, if

1
Baugh v. State, 961 So. 2d 198 (Fla. 2007); see also Brown v. State, 672 So. 2d 648 (Fla. 4th DCA 1996).

2
1 Fla. Prac., Evidence § 301.1 (2017 ed.); see also Little v. Publix Supermarkets, 234 So.2d 132, 133 (Fla. 4th DCA 1970).

3
Whitehouse v. Bolster, 95 Me. 458, 50 A. 240 (Maine 1901).

4
Davis v. State, 761 So. 2d 1154 (Fla. 2d DCA 2000).

5
2 Federal Trial Handbook: Criminal § 52:6 (4th ed.).

6
Daniels v. Twin Oaks Nursing Home, 692 F. 2d 1321 (11th Cir. 1983).
the probative force of testimony or physical evidence is so weak that it raises only a mere surmise
or suspicion of the existence of the fact sought to be established, such testimony or physical
evidence, in legal contemplation, falls short of being “any evidence.”7 An inference also violates
due process if there is no corroborating evidence to support the leap from the basic fact to the
presumed element.8

2. Multiple Inferences.

A jury is not proscribed from drawing multiple inferences in a case with multiple facts
and circumstances in evidence. It may draw as many separate inferences as there are separate
facts and circumstances. It may not, however, treat a fact inferred as a fact established that, in
turn, can serve as the basis for a further inference and thereby spin out a chain of inferences into
the realm of pure conjecture.9

3. Stacking or Pyramiding Inferences.

The pyramiding or imposition of one inference upon another to establish the facts
necessary is not permissible and amounts to mere speculation.10 Speculation is prohibited
because it does not create a genuine issue of fact; instead it creates a false issue. The inference
on inference rule protects litigants against verdicts of judgments based on speculation, and so
inferences may not be based on mere speculation, guess, or conjecture as to what might have
happened.

An inference which is based solely and entirely upon another inference and which is
unsupported by any additional fact or any other inference from other facts is an inference upon an
inference and is universally condemned.11

An impermissible pyramiding of inferences occurs where at least two inferences in regard

to the existence of a criminal act must be drawn from the evidence and then stacked to prove the
crime charged; in that scenario, it is said that the evidence lacks the conclusive nature to support
a conviction.12

7
See Joske v. Irvine, 91 Tex. 574, 44 S.W. 1959 (Texas 1898).

8
People v. Velez, 2012 Ill. App. (1st) 101325, 359 Ill. Dec. 703, 967 N.E. 2d 433 (App. Ct. 1st Dist. 2012).

9
Travelers Ins. Co. v. Warrick, 172 F. 2d 516, 519 (5th Cir. 1949).

10
Tyrrell v. Dobbs Inv. Co., 337 F. 2d 761 (10th Cir. 1964).

11
2 Federal Trial Handbook: Criminal § 52:6 (4th ed.).

12
Graham v. State, 748 So. 2d 1071, 1072 (Fla. 4th DCA 1999).

Stacking or Pyramiding Inferences in Criminal Cases

2 Hon. William H. Burgess, III (March 23, 2018)
 An inference which is based in part upon another inference and in part upon factual
support is called a parallel inference and is universally approved, provided it is a reasonable
conclusion for the jury to deduce.13 The rule against stacking or pyramiding inferences does not
apply in cases of parallel inferences.14

4. The Voelker Exception.

The general rule against the pyramiding of inferences is not rigidly applicable in all cases.
When no contrary reasonable inference may be indulged, such inference is elevated for the
purpose of further inference to the dignity of an established fact.15 This exception applies in
criminal cases,16 and allows the pyramiding of an inference upon another inference only if the
prior or basic inference is established to the exclusion of any other reasonable theory should
another be drawn from it.17 Stated otherwise, it is proper to impose a second inference which is
deductible from the evidence, upon a primary inference established by circumstantial evidence
which is one that is elevated to the dignity of an established fact in that it outweighs all
reasonable inferences to the contrary.18

13
2 Federal Trial Handbook: Criminal § 52:6 (4th ed.).

14
See Belden v. Lynch, 126 So.2d 578 (Fla. 2d DCA 1961); see also Castillo v. E.I. Du Pont De Nemours & Co., Inc., 854
So. 2d 1264 (Fla. 2003).

15
Voelker v. Combined Ins. Co. of Am., 73 So. 2d 403, 407 (Fla. 1954).

16
Benson v. State, 526 So. 2d 948, 952-53 (Fla. 2d DCA 1988).

17
Voelker v. Combined Ins. Co. of Am., 73 So. 2d 403, 407 (Fla. 1954).

18
Franklin v. Dade County, 230 So. 2d 730, 735 (Fla. 3rd DCA 1970).

Stacking or Pyramiding Inferences in Criminal Cases

3 Hon. William H. Burgess, III (March 23, 2018)