O.J. Faces a New Ball Game In His Upcoming Civil Trial
Different legal standards, a different jury, maybe a different verdict
SANTA MONICA, CALIF. — Outside the ocean-view courthouse here, a man pauses in front of a small gallery of press photographers. Inside, jury selection continues for the civil trial of O.J. Simpson in proceedings that judge, defense, and prosecutors promise will be "very different" from the criminal trial that consumed local and global attention for the better part of 1995.
"I hope this trial goes smoothly, quietly, quickly," says the Santa Monica dentist who works in this cliffside town. "I don't want this community turned on its head again."
Between Superior Court Judge Hiroshi Fujisaki and the standards of civil as opposed to criminal cases, the dentist will get his wish. While Judge Fujisaki has already put his personal - and more disciplined - stamp on the proceedings to come, the differences will not simply be a matter of courtroom style. The civil case Mr. Simpson now faces will be markedly different in legal terms and could result in a different verdict.
Over media protests, Fujisaki banned cameras from the courtroom and imposed gag orders on trial participants to prevent them from commenting, quickly demonstrating how he will differ from his predecessor, Superior Court Judge Lance Ito.
Despite Fujisaki's efforts, however, this trial at the Los Angeles County Superior Court, just a mile north of Simpson's mansion and a mile east of the condominium where Nicole Brown Simpson and Ronald Goldman were found murdered on June 12, 1994, will probably be as closely watched.
"In Mr. Simpson's first trial, the world got an unprecedented opportunity to understand the American criminal justice system," says Myrna Raeder, chair of the American Bar Association's Committee of Federal Rules of Procedure and Evidence.
"Now it will get a chance ... to understand civil procedures," she says. "The ... difference is great."
As jury selection proceeds over the next six weeks, legal analysts are hastening to explain to press and public how civil and criminal procedures will differ.
The greatest difference is that while the criminal justice system is based on the premise that it's preferable to have a guilty person go free than have an innocent person be jailed or deprived of life, civil proceedings have no such bias. "When the penalty is no longer a life-and-death matter, the playing field for plaintiffs and defendants is more level," says Ms. Raeder.
Because only monetary (compensatory and punitive) damages are at stake - instead of a possible prison sentence or death penalty as in a criminal trial - the burden-of-proof standard that prosecutors must meet is lower.
Prosecutors need only prove their theory "by the preponderance of evidence" in civil cases, as opposed to "beyond a reasonable doubt" in criminal matters. Also, civil juries can convict with a majority of 9 votes out of 12 instead of a unanimous verdict.
"Many people don't realize that for all these reasons, civil cases are much easier [for prosecutors] to win," says University of Southern California law professor Erwin Chemerinsky.
As the trial unfolds, here are other differences to watch for:
Jury pool. The jury will be drawn from a largely white community of well-educated, affluent professionals who analysts say may be more open to scientific evidence and charges of domestic violence. The criminal trial, held in downtown Los Angeles, had a jury drawn from a broader cross section of races and incomes.
*Simpson testimony. The criminal trial included a Fifth Amendment privilege against self-incrimination. No such protection exists in the civil trial as Simpson has already been acquitted on the criminal charges and can't be retried.
Translation: Simpson must take the stand. Many say his testimony could last as long as two weeks, as prosecutors will try to show inconsistencies between his version of events and that of other witnesses.
"For the first time since the murders, Simpson will have to personally account for every minute of his actions," says Robert Pugsley, a law professor at Southwestern School of Law, Los Angeles. "The entire trial could rest on whether or not jurors look at him and feel he was capable of committing such acts."
*Evidenciary rulings. Because of pretrial rulings by Fujisaki, the prosecution is expected to use new witnesses and evidence, including the slow-speed Bronco chase to imply guilt, as well as police tapes of Ms. Brown Simpson in prior domestic-abuse matters.
The defense also has been warned it will not be permitted as much leeway in presenting theories about a racially motivated frameup by Los Angeles police.
For these reasons and others, most feel the civil trial is not likely to be a simple replay of the criminal case.